The significance and timeliness of Michael Mello’s book was brought home to me recently when I participated in a conference on same-sex marriage at Brigham Young University Law School in Provo, Utah. Nearly everyone in the audience opposed permitting two men or two women to marry each other. Many favored an amendment to the United States Constitution to prevent any state from permitting same-sex couples to marry. Most regretted the decision of the United States Supreme Court in June 2004 holding sodomy laws unconstitutional. To them, the institution of marriage was under siege. The welfare of unborn children was at risk. Same-sex unions, one speaker believed, would offend “the dignity of children.” Another speaker referred to the union of two men as “mere friendship, with the option of sodomy.
My task at the conference was to discuss the developments in Vermont. I drew on Professor Mello’s manuscript and described the decision of the Vermont Supreme Court in the Baker case, the response of the Vermont legislature, and the responses of Vermont voters in the two elections that have followed. After I spoke, another member of the panel, a member of the Brigham Young faculty, delivered a short version of a 60-page law review article he had written appraising the Baker decision. He criticized the reasoning of the court and accused the justices of misusing their own precedents. He then went on at some length to point out that few appellate courts in other states had cited Baker in the nearly four years since it was decided. He never acknowledged that the absence of citations in other courts should be no surprise. After all, in the four years since Baker, no other appellate court in the United States has decided a case involving a claim for same-sex marriage. Moreover, the Vermont decision rests entirely on an unusual provision of the Vermont Constitution, the so-called Common Benefits Clause, that is found in only a few other state constitutions. What this speaker was trying to do was to make the Baker case go away.
But it won't
The fact that a conference in Utah devoted an entire panel to Baker nearly four years after it was decided is a sure sign of its continuing importance. Baker was the first decision of a state supreme court requiring that the benefits and responsibilities of marriage be extended to gay male and lesbian couples. And Vermont’s legislature was the first legislature to affirm those benefits for its gay and lesbian citizens. The decision and the action of the legislature in adopting the civil union legislation produced temporary political upheaval in Vermont. In the rest of the country, the decision was praised by liberal activists and used by many to push for expanded recognition of same-sex relationships in their own states. At the same time, the decision was condemned by conservative Catholics, Christian fundamentalists, and right-wing politicians.
Professor Mello’s book preserves this historic set of events in Vermont, drawing on newspaper accounts, on letters to the editor, on the sometimes angry, sometimes joyous testimony of private citizens before the Vermont legislature, and on interviews with some of the principal actors in the drama. I believe you will find this a gripping story.
Chambers, David L. Foreword to Legalizing Gay Marriage, by M. Mello, x-xii. America in Transition: Radical Perspectives. Philadelphia: Temple Univ. Press, (2004).