Ruling will stir states on same-sex marriages

A groundbreaking court decision that imparts all the benefits of marriage to gay couples - short of the marriage certificate itself - is expected to touch off a state-by-state reassessment of what constitutes wedlock in society today.

The Dec. 20 decision in Vermont is the first by a state supreme court to say that unions between homosexuals should be afforded the same benefits and protections that married heterosexual couples enjoy.

The Vermont court did not order the legislature to allow same-sex marriage, but it left the door open for the state to establish another way to give homosexuals all the rights of married couples. Still, the ruling is being celebrated by gay-rights groups across the US as the fruition of a 20-year push for government sanction of gay partnerships.

Those who have watched America wrestle with the issue of same-sex marriage over the past several years say the Vermont ruling is likely to affect the political, legal, and moral debates in other states. Its obvious impact, they say, is in removing a barrier to gay marriage.

"The fact that the court says you have to give the same benefits ... is going to blur the distinction between being married and being a same-sex couple," says Robert Volk, a law professor at Boston University.

Current law points to an America deeply divided over whether and how to recognize homosexual unions. Domestic partnerships are already acknowledged in several states and many cities, most often to extend health-insurance benefits.

But as recently as 1996, Congress enacted the Defense of Marriage Act, which defines marriage for federal purposes as a union between one man and one woman.

Action in the states

About 30 states have passed similar laws, although some legal analysts say these statutes may be vulnerable to a court challenge under the US Constitution if one state refuses to recognize a marriage sanctioned by another. If, for example, Vermont lawmakers opt to permit gay marriage - as some predict they will - a couple who marries there and then moves to another state may attempt to assert its rights by, say, filing a joint tax return.

Such a case, though, is probably years away. "Over the next five years, things will happen legislatively, state by state," says Michael Wald, a law professor at Stanford University in Palo Alto, Calif.

The Vermont ruling "could possibly be duplicated" elsewhere, adds Mr. Volk. Its basis is a "common benefits" clause in the state constitution - one that is similar to provisions in a number of other state constitutions, he says.

Indeed, the ruling concluded that acknowledging gay couples who "seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity."

For gay-rights attorney Beatrice Dohrn of the Lamba Legal Defense and Education Fund in New York, reading those words made the hairs on the back of her neck stand up. She says she'd become a bit jaded in her years of activism, but here "the court is coming out and saying that ... there is no greater reason to support heterosexuals than to support gay couples.... It's a sea change."

Other state courts may indeed look to the Vermont decision as gay couples bring claims for a more comprehensive set of rights. In the Vermont case, Baker v. State, the three gay couples who brought the suit pointed to more than 300 state protections married couples enjoy, including the right to visit each other in a hospital and inherit from each other without a will.

Back in Vermont

While some are basking in the symbolic magnitude of this week's ruling, questions remain about its practical ramifications.

Vermont lawmakers may decide to establish a domestic-partnership registry, but gay-rights activists wonder if that will meet the court's requirements. They hope that civil marriage laws will be extended.

Supporters of the traditional definition of marriage say they're pleased the high court did not require an outright recognition of same-sex marriage. But they also see the equal-rights decision as inappropriate judicial activism.

"We don't believe a court has the authority to order people to subsidize immorality," says Robert Knight, senior director of cultural studies at the Family Research Council in Washington. He urges the Vermont legislature to defy the order, or pass a constitutional amendment, as Hawaii did last year. The state should "specifically mandate marital benefits for marital relationships only," he says.

If Vermont allows gay couples to be married, observers predict some degree of magnet effect.

"It will be like people flying to Reno to get divorced in the 1950s," says Kenneth Sherrill, a political scientist at the City University of New York's Hunter College. In addition to those in-and-out trips, he says, some couples would also want to move there permanently.

* Staff writer Yvonne Zipp contributed to this report.

(c) Copyright 1999. The Christian Science Publishing Society