Legalizing Gay Marriage.

Vol. 14 No.12 (December 2004), pp.946-949

LEGALIZING GAY MARRIAGE, by Michael Mello. Philadelphia: Temple University Press, 2004. 352pp. Cloth $68.50. ISBN: 1-59213-078-X. Paper. $22.95. ISBN: 1-59213-079-8.

Reviewed by Susan Burgess, Department of Political Science, Ohio University. Email: burgess@ohio.edu .

In LEGALIZING GAY MARRIAGE, Professor Michael Mello of Vermont Law School provides a timely, accessible, and even moving account of how Vermont became the first state to institute gay civil unions. As Mello points out, this is no small task: “Anyone with a law degree can make the law mysterious, inaccessible, and incomprehensible. It is much harder to translate complicated and subtle legal concepts into a presentation accessible to non-scholars, without oversimplifying to a point that scholars will question the intellectual rigor of the project” (p.25). Mello meets this challenge, offering a compelling story and a sophisticated analysis of legal and political change.

The book begins with Mello recounting a threatening incident that occurred late one night as he was driving home on an isolated rural road, and ends with his observation that everyday life did not change radically in the wake of Vermont’s adoption of civil unions, except for the fact that he and many others had become painfully aware of the level of homophobia in seemingly bucolic Vermont. In between these observations, Mello provides a detailed discussion of the Vermont Supreme Court’s decision in BAKER v. STATE, the backlash against gays that ensued in the wake of the decision, the legislative debate that resulted in civil unions as an alternative to gay marriage, and the import of the Vermont decision for the continuing debate about same-sex marriage. Mello also provides an interesting analysis of civil unions as an alternative to marriage, finding the former entirely insufficient.

Following the core principles that inform the Vermont Constitution’s Common Benefits Clause, such as inclusion and recognition of common humanity, BAKER held that same-sex couples were entitled to the same benefits as married heterosexual couples. Thus, the Vermont Supreme Court sent the issue back to Legislature to resolve in accordance with this clause. Claiming that the decision was “a straightforward application of the plain language of the Common Benefits Clause,” Mello argues that BAKER is an “utterly legitimate and appropriate instance of constitutional decision making,” because “protecting the civil rights of despised minorities is a central function of the judiciary” (pp.40, 23). The entire text of the lengthy decision is included in an Appendix, making the book excellent for classroom use.

Mello argues that the enormous backlash against gays and lesbians that followed BAKER had a huge impact on the legislature deciding to legalize civil unions rather than gay marriage. He estimates that about 80% of letters to the editor were hostile in the four Vermont [*947] newspapers that he monitored daily during this period. Quoting extensively from original texts, many of which are extremely prejudicial and often quite coarse, Mello shows that many Vermonters regularly linked homosexuality to pedophelia, bestiality, sadism, communism, AIDS, uncleanliness, the fall of the Roman empire, bigamy, incestuous marriage, polygamy, drug abuse, alcoholism, promiscuity, job instability, and a wide variety of other behaviors that would threaten the stability and security of the country. Many letters threatened political retribution for legislators who would support the “homosexual agenda.”

Reviewing these letters, as well as a variety of other materials including direct mail and ad campaigns that were in wide circulation at the time, Mello concludes that the debate was not particularly even-handed and that much intolerant, discriminatory, and even hateful language came from the opponents of BAKER. He states: “Many Vermonters praised what they called the ‘civility’ of the debate on the appropriate response to BAKER. It’s unclear to me what those people meant by ‘civility,’ because it appeared to me that the civility of the debate was decidedly unilateral. The supporters of BAKER were indeed civil. Many opponents – including political and religious leaders – were not civil, characterizing their opponents as abominations, sins in the eyes of God, defects of nature, or the moral equivalent of child-rapists, bigamists, polygamists, or people who have sex with animals. Such assertions are not ‘civil,’ even when made in a quiet and respectful voice, and these were generally not” (p.73).

While rampant homophobia may make such intolerance appear to be civil debate on an open question, Mello notes that such hatred eerily echoes the vocal, righteous, and often violent resistance to earlier civil rights movements. Mello hears resonances of the segregated South where he grew up, as contemporaries use similar arguments to resist same-sex marriage. The rule of the day then and now includes citing authoritative biblical texts, decrying the rule of activist judges who subvert democracy, defending family values, and so on. While most people now understand that anti-miscegenation and other racist laws were always an abomination, and the minority who don’t understand this seem to have lost the public forum that once lent their position legitimacy and the appearance of civility, many still seem quite willing to provide such cover to the opponents of full equality for gays and lesbians, especially when it comes to same-sex marriage.

Since discrimination against gays and lesbians remains an open question, Mello argues, gays and lesbians are expected to be thankful that straight people accept them in whatever measure they do. Thus, rather than following the logic of BAKER and providing gays and lesbians an equal place at the table in the form of full marriage rights, the majority of Vermonters, Governor Dean included, seemed to expect gays and lesbians to accept gratefully whatever table scraps the Legislature graciously provided in the form of civil unions. For Mello, this open homophobia provides all the more reason for the Court’s protection of gay [*948] and lesbian civil rights and liberties in BAKER.

Of course, one could agree with Mello in principle, and still believe that, politics being the art of compromise, civil unions represented the best possible outcome in this particular situation. Indeed, Mello provides an extensive account of the compromise that characterized the legislative debates. He also notes that many legislators exhibited remarkable courage given the political environment, offering and voting their conscience in response to several moving speeches. Physical property was attacked, death threats were received, and eternal damnation was promised for those who favored civil unions. As one legislator supportive of civil unions said, “[f]or a few months of my life, I have learned a little bit about what it’s like to be discriminated against . . . I began to realize what these folks have to put up with all their lives” (p.114). Mello readily acknowledges the courage necessary to take such a stand and notes that some civil union supporters actually appear to have lost their seats as a consequence. Nevertheless, he concludes that gay and lesbian interests were inappropriately compromised when the Legislature decided in favor of civil unions rather than marriage.

Disagreeing with prominent scholars such as William Eskridge (2001), Mello contends that the civil union solution amounts to “marriage-lite,” and this is morally, politically, and legally insufficient. Eskridge and others have argued that civil unions will create a political and legal environment that is, over time, friendlier toward full equality for gays and lesbians. Mello counters: “As we all should have learned from the sad history of separate-but-equal in the context of race, legally mandated ‘separate’ is inherently ‘unequal’ when the law marks the segregated class with a badge of inferiority. Vermont’s new legal system of Jim Crow marriage for same-sex couples does just that” (p.143). Just as PLESSY v. FERGUSON would not be characterized as forwarding racial equality, paving the way for the ruling in BROWN v. BOARD some sixty years later, Mello contends that civil unions will not be understood by later generations as progress toward legalizing gay marriage.

Political and legal change of the sort that Mello is advocating may well take time, although perhaps not as long as sixty years. Mello argues, following Martin Luther King, Jr., that time is neutral, not progressive, and thus that those who would counsel patience actually further the agenda of people of ill will and provide cover for what King called “the appalling silence of the good people.” While this is undoubtedly true, many very vocal gays and lesbians are not on board with Mello. In BAKER, gays and lesbians were fighting for some form of legal recognition of partnerships – for the right to board the train, as it were. As a consequence, many were happy to get a seat, even in the segregated section. In addition, others would rather ride an entirely different train, one without the excess baggage of heterosexual marriage.

In any case, while we may not be able to predict its exact destination, it seems quite clear that the train has left the station. National exit polls conducted during the November 2004 elections showed that 64% of the voters support some form of recognition for gay and [*949] lesbian partnerships. Every legislator who supported the GOODRIDGE decision in Massachusetts was returned to office, and two legislators who had not supported the decision were defeated. In Ohio, a law that had prevented the city of Cincinnati from legislating protection for gays from discrimination was rescinded. In this context, anti-same sex marriage amendments may represent a last desperate gasp from those who would oppose full equality for gays and lesbians. Homophobia may still be alive in Vermont and other places, but that certainly does not mean that it is well, or that it has much of a future. Mello’s book is poised to become one of several important works that carefully and passionately document its eventual demise.

REFERENCES:

Eskridge, William N., Jr. 2001. EQUALITY PRACTICE: CIVIL UNIONS AND THE FUTURE OF GAY RIGHTS. New York: Routledge.

CASE REFERENCES:

BAKER v. STATE, 170 Vt. 194, 744 A.2d 864 (1999).

BROWN v. BOARD OF EDUCATION, 347 US 483 (1954).

GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH 440 Mass. 309, 798 NE.2d 941 (2003).

PLESSY v. FERGUSON, 163 US 537 (1896).

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