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Speaking of another kind of freedom, last week, the Vermont Senate has passed a bill that would enable same-sex couples to marry, and not just get civilly unionized (civilly united? civilized?).The Vermont House is expected to pass the bill this week. The governor says he'll veto it—despite a survey showing that 55 percent of Vermonters are in favor, a few percentage points more than last year. No one knows whether there will be enough votes to override his veto. If the bill passes, Vermont would be the third American state with full marriage rights for same-sex pairs—and the first to have successfully done it via the legislature. (The California legislature passed marriage bills twice, but everything in California ends up in the initiative process and in the courts ... more details here.)
I am sure that some of you thought that civil unions and marriage were functionally equivalent. Not really. Vermont public radio interviewed me yesterday about the difference between civil unions and marriage, the hilarious history of marriage, the hard-fought and incremental gender-neutralization of marriage law over the past 150 years, and why same-sex couples belong today. Listen here, if you have a couple of extra minutes to kill.
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I hate to say this, but I'm not a fan of a key piece of the challenge to Proposition 8 that same-sex marriage advocates are bringing in the California Supreme Court. By all means, ask the court to recognize the 18,000 same-sex marriages performed since it ushered in legalization last June. Laws shouldn't change retroactively, with marriages approved by the state one day and shunned the next. It's true that this case doesn't fit perfectly into the constitutional doctrine based on what's called the ex post facto clause, which prevents laws from changing up on people after the fact. (That's because traditionally, ex post facto applies to criminal laws.) But if ever there was a time for expanding that doctrine, for fairness' sake, this is it.
The part of the court challenge that makes me skittish is the claim that Prop 8 is simply unconstitutional because it's a major revision to California's constitution, instead of just an amendment, and so the legislature has to separately approve it. This sounds like legal jabber (a revision vs. an amendment--huh?), and I fear that the political price for a ruling like this would be too high. Last summer, the state supreme court took a big step by legalizing same-sex marriage. Now, like it or not, the voters have rejected that ruling. I'm not a fan of state referenda--they make it way too easy to pass bad laws, and California has suffered from them in the past. (Remember Prop 13, which decimated school funding?) But if you have a referendum system, you have to live with it. Or at least you don't turn to the branch of government farthest from the will of the electorate to overturn a law born of the process that's closest to the will of the government. To get out of the Prop 8 fix, California needs another amendment that reverses it. The current challenge is the right battle, but the wrong tactic.