Vermont legalizes gay marriage and the role of courts in popular constitutionalism

04/07/09 Burlington Free Press:

"MONTPELIER — Vermont has become the fourth state to legalize gay marriage — and the first to do so with a legislature’s vote.

"The Legislature voted Tuesday to override Gov. Jim Douglas’ veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override."

Vermont is "now the fourth state to permit same-sex marriage. Massachusetts, Connecticut and Iowa are the others. Their approval of gay marriage came from the courts."

The hunter of justice blog provides this Burlington Free Press link to the veto override in the state House. Vermont Public Radio provides full coverage of the legislature's action on the marriage equality legislation.

04/07/09 Gender & Sexuality Law Blog:

Law professor Katherine M. Franke is Director of Columbia Law School's Gender & Sexuality Law Program. She favors legalization of same-sex marriage "through legislative action as compared with the [defense-of-marriage] law being invalidated from the top down by the courts." A Washington Post editorial also praises the legitimacy of "the right of the duly elected peoples' representatives [in Vermont] to take such action."

But court intervention can provide a critical catalyst to democratic reform of the kind Franke and the Washington Post favor. Former Chief Justice Jefff Amestoy wrote the majority opinion in Baker v. State of Vermont, 744 A.2d 865 (Vt. 1999). This ruling required Vermont to honor its constitutional guarantee of equal protection to same-sex couples, and ultimately led to today's historic fulfilment of that guarantee in enactment of the marriage equality law. Amestoy recently wrote of the Prop. 8 litigation that "a judicial decision may be the opening argument in a process that preserves the ultimate constitutional authority of the people."

Of course, state supreme courts have no opportunity to spark or advance democratic reform in states whose constitutional amendments limit such fundamental rights as the rights to marry. (29 states have constitutional amendments that ban same-sex marriage, and 43 states have amendments and/or statutes that ban it.) And yet even in these states, public opinion may gradually respond to rulings by other state supreme courts to remove restrictions on the exercise of fundamental rights. Rulings to uphold equal protection of the right to marry have the potential to help shift public opinion, especially as married same-sex couples can be expected to follow the example of married same-sex couples in New York, who have challenged that state's DOMA with respect to recognition of their out-of-state marriages.

On the other hand, at least one celebrated, state supreme court ruling on the right to marry did not help change public opinion. Over 30 states had constitutional provisions and/or statutes banning interracial marriage when, in Perez v. Sharp, 32 Cal.2d 71 (1948), the California Supreme Court took the unprecedented step of outlawing restrictions on interracial marriage. (See my 03/28/09 post.) Less than 20 years later, in Loving v. Virginia, 388 U.S. 1 (1967), the U.S. Supreme Court overturned constitutional and statutory bans on interracial marriage. In the interim, 14 states repealed such bans (Loving, at 6, n.5). Perez had no direct influence on the repeals, even as it at anticipated changing public opinion on interracial marriage.

Moreover, as Franke observes, court intervention can backfire in the handful of states that allow voters to directly amend the state constitution through a constitutional initiative. In California, the relative ease of state constitutional amendment may subvert state constitutional protection of fundamental rights when the California Supreme Court acts to uphold such rights. Or so Chief Justice Ronald George appeared to suggest in the Prop. 8 oral arguments.

But over the long-term, the California Supreme Court's ruling in In re Marriage Cases, 43 Cal.4th 757 (2008), may not backfire. If the Court upholds Prop. 8, that outcome is likely to renew democratic participation, in the form of another voter-initiative amendment to repeal Prop. 8. In fact, such an initiative amendment has already been proposed for California's 2010 election. (See pending intiative 1357, reinstating the "Right of Same-Sex Couples to Marry. Initiative Constitutional Amendment.") Reporting on how the Prop. 8 litigation has affected young voters in Colorado, the Denver Post identifies young sponsors of a proposed initiative amendment in that state to repeal its 2006 constitutional amendment banning same-sex marriage.

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