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Do the right thing (continued)




WHILE VERMONT’S battle over marriage and civil unions doesn’t offer a road map for Bay Staters, it does offer a few lessons. The biggest, of course, is that the politics of gay marriage are anything but calm. The issue touches on people’s passions about family, sex, and love, as well as their most powerful moral convictions. Says Moats, "There will always be moral opposition to gay marriage, just like with abortion."

And some of that opposition can get nasty. Moats doesn’t sugarcoat the vicious attacks that Vermont legislators faced as they ironed out the civil-union bill. Not surprisingly, Lippert, as the sole openly gay lawmaker, was subjected to a torrent of abuse, including letters calling homosexuals "filthy, disease-carrying rodents" who deserve to die. Worse still, he and his colleagues had to deal with the likes of Randall Terry, the founder of the extreme anti-abortion group Operation Rescue. Terry descended upon the State House to "mobilize the troops" against any recognition of gay and lesbian relationships (he’s promised to do the same in Massachusetts). Moats paints him as a menacing figure who harassed gay-friendly legislators and alienated those on own his side; Terry, he writes, "became a Mephistophelean character" who "shadowed legislators through the halls, whispering biblical injunctions at them."

Massachusetts pols have clearly learned at least one lesson from the Vermont debate — namely, the political appeal of a moderate alternative to same-sex marriage. Ever since the November Goodridge ruling, which gave legislators until May to implement it, many on Beacon Hill have held on to the hope that Vermont-style civil unions would satisfy the SJC. Last December, the Senate even approved legislation that would grant same-sex couples some marital benefits. Senate president Travaglini sent the bill to the SJC for an advisory opinion on whether it would pass constitutional muster, thereby prompting the court to accept another round of advisory briefs earlier this month. Like their counterparts to the north, most Bay State legislators see the parallel institution as a pragmatic compromise.

But Vermont civil unions cannot necessarily be replicated here. In the first place, the Baker and the Goodridge rulings say different things — so they impose different requirements on the two state legislatures. The Vermont Supreme Court focused primarily on the benefits that flow from civil marriage. Writing for the majority, Chief Justice Jeffrey Amestoy said that the state was "constitutionally required" to extend those benefits to same-sex couples. But the court left it up to the legislature to figure out how to do so. Amestoy, in fact, designed his ruling so it became the job of legislators to choose between gay marriage or a "parallel domestic partnership." Before ascending to the bench, Amestoy had served as a long-time state attorney general and, as such, he was a seasoned, skilled politician. He believed that involving the legislature would put a stamp of democratic approval on the Baker ruling’s outcome. "Amestoy," Moats says, "thought if you get the state to go through this huge debate, the result will have greater legitimacy."

By contrast, the Massachusetts SJC treated Goodridge as a strict civil-rights case, and the four-justice majority ruled accordingly. Thus, Moats points out, individual privacy rights played a key role in the SJC ruling. "The Massachusetts case hinges on freedom-of-privacy law," he says, which grants people the right to make personal decisions without state interference. The SJC found civil marriage a right to which all Massachusetts residents, gay and straight, are entitled. As Chief Justice Margaret Marshall wrote in her opinion, "Barring same-sex couples from ... the institution of civil marriage" — not simply from its benefits — "violates the Massachusetts Constitution." In short, the court spoke about gay marriage, and nothing else. Which has left legislators with little to debate aside from an anti-gay-marriage constitutional amendment. Unlike in Vermont, Moats says, "The legislature in Massachusetts doesn’t have as much freedom to decide what to do."

This is not to say that legislators should embrace such a constitutional amendment as a way to achieve the "stamp of democratic approval." The rallying cry of "Let the people vote" has become a familiar refrain among same-sex-marriage opponents today. Yet as Moats sees it, "there’s a difference between involving the legislature and letting the people vote." Even if most residents reject the SJC ruling, he says, "a majority cannot deprive the rights of a minority." On February 11, both legislative houses will hold a constitutional convention to address the pending amendment, which would define marriage as "only the union of one man and one woman." Two years would have to pass before such language could appear on any ballot. Meanwhile, same-sex couples will be able to marry as of May 17. "If gay marriage is the law of the land as of May," he says, "why not see if that’s such a terrible thing before taking such a drastic step?"

Indeed. For all the talk that civil unions would turn Vermont into a "gay mecca," not much has changed in that small state since 2000. Sure, thousands of gay and lesbian couples have flocked there to be joined legally. But they’ve returned to their home states, and the anti-gay backlash has run its course. During the 2000 debate, Moats notes, many wavering Vermont legislators managed to look beyond such fear-mongering rhetoric and recognize "the legitimate cry for equality among gay and lesbian citizens."

So if there is one grand lesson for Massachusetts pols to learn from Vermont, it’s this: "don’t be afraid to do what’s right," as Moats puts it. After all, Civil Wars brims with inspiring tales of Vermont politicians who lost their seats in conservative pockets throughout the state because they dared to back civil unions. Even though they risked their careers, Moats says, "a lot of them can look back with no regrets. They can live with themselves now." These legislators of conscience include people like Kinsey, who had been a fixture at the State House since 1971. Or Mary Mazzariello, who shocked colleagues when she spoke up on the House floor about her two lesbian daughters. Or Diane Carmolli, a devout Catholic who broke from the Church’s anti-gay position and supported the civil-union law.

Carmolli, in particular, seems an exceptional role model for Bay State legislators now weighing the issue. As Moats tells it, "She was defeated, and yet she said, ‘Maybe my defeat will help the state heal.’ Talk about magnanimity."

Kristen Lombardi can be reached at klombardi[a]phx.com

page 2 

Issue Date: January 30 - February 5, 2004
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