State of the Unions
BY Mubarak Dahir
July 01 2010 11:25 AM ET
Bill Lippert, the openly gay vice chairman of Vermont’s house judiciary committee, hopes the Vermont law offers the rest of gay and lesbian America “a renewed sense of inspiration and hopefulness, particularly in the face of the Knight initiative,” an anti–gay-marriage ballot measure passed by California voters in March, and similar state laws that define marriage as solely between a man and a woman.
Some legal experts say the long-term ramifications could add up to much more than feel-good psychology. In fact, Vermont might provide the blueprint that other states decide to copy. “Nationally, there can’t help but be legal influence,” asserts Greg Johnson, cocounsel in the Alaska same-sex marriage case Brause v. Alaska (currently on appeal to the state supreme court) and an assistant professor at Vermont Law School. “This sets an example for other states to follow.” He predicts “a lot of promise” for recognition of gay couples in all the New England states as well as Minnesota and California.
Evan Gerstmann, an assistant professor of political science at Loyola Marymount University in Los Angeles and author of The Constitutional Underclass: Gays, Lesbians and the Failure of Class-Based Equal Protection, agrees: “I would be very surprised if a number of states didn’t move along the Vermont model.” Gerstmann says many states have constitutional provisions similar to the “common benefits” and “equal protection” clauses that motivated the Vermont supreme court to mandate benefits for gay and lesbian couples. “What is unique about Vermont is the approach of judicial-legislative cooperation,” he says. “If you look at the political reality—extreme negative public reaction to courts trying to do this on their own—it’s clear that such a partnership is a more effective way to win results.”
Beth Robinson, cocounsel in the Baker case, even suggests the Vermont law might be used in the future to secure benefits for gays and lesbians outside the state. It’s possible that a couple who eventually leave Vermont might sue to have their union recognized elsewhere. “We’re plowing new legal ground, and how that plays itself out in other states remains to be seen,” she says.
Further litigation from gays and lesbians within Vermont, however, seems less likely in the near future. While the Vermont supreme court has retained jurisdiction in Baker and could thus be compelled to review whether or not the law fulfills the mandate to provide equal benefits, a majority of the plaintiffs do not appear eager to return to the courtroom.
Lois Farnham and Holly Puterbaugh, who have been together 27 years, were one of the three plaintiff couples in Baker. Puterbaugh admits her emotions sway between “the half-full, half-empty glass syndrome. Some days I am so excited at what we’ve accomplished. Other days I’m reminded it’s still not marriage.” Still, Farnham says the two “are most likely satisfied with things for now. I’m tired.”
Baker and his partner, Peter Harri-gan, feel the same way. “I’m looking forward to it being through,” Baker says with a sigh.
The victory in Vermont has not come easily. Gay and lesbian Vermonters and their supporters have sustained months of highly vocal, very public attacks from opponents. In drafting the law, both the house and senate judiciary committees held hearings in which gays and lesbians were called everything from perverts to child molesters. Right-wing activist Randall Terry, founder of the antiabortion group Operation Rescue, set up camp in the shadow of the statehouse and remained there for the duration. In the final weeks Republican presidential candidate Alan Keyes and Traditional Values Coalition head the Rev. Lou Sheldon visited the state to campaign against the impending legislation. And opponents took out full-page ads in local papers, denouncing the governor and listing home phone numbers of supportive legislators.