National Post

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Tuesday, December 28, 1999

Marriage, Vermont style
The new law regarding homosexual couplings is a step toward unravelling marriage in general
David Frum
National Post

U.S. presidential candidate John McCain has said he believes Americans are ready for a homosexual president. But this week's urgent question is: Are Americans ready for a homosexual First Mate?

They'd better be. On Dec. 20, in a decision handed down just in time to be lost in the Christmas rush, the Vermont supreme court declared the state's law of marriage to be unconstitutional. The court ordered the state Legislature to adopt a new law -- one that grants homosexual couplings every one of the legal and economic advantages of husband-wife marriage.

The Vermont court is not the first to try to rip up its state family law in this way. Hawaii's court outlawed that state's marriage law in 1996. But the Hawaiian decision was promptly overturned by a constitutional amendment. That is unlikely to happen in Vermont, whose constitution is the most difficult to amend of any state's. (That unamendability, by the way, appears to be the reason that gay activist organizations targeted Vermont for this litigation: After their Hawaiian experience, they have learned to keep away from states whose courts are in any way subject to democratic discipline.)

Vermont's judges granted the state's nervous lawmakers one twig of political cover: They do not actually have to use the word "marriage" to describe the package of benefits extended to homosexual relationships. But verbal trickery cannot conceal what has happened. Marriage as it used to exist in Vermont attempted to harmonize the needs of men, women and children in one institution rooted in human nature and recognized by all the world's religious faiths. The new law of Vermont is that any two people who have sex regularly with each other are entitled to a great big package of goodies paid for by their employers and fellow taxpayers.

That is a stunning transformation of American law, and it is a transformation whose effects extend well beyond the homosexual 3%. Vermont's new legal regime will inevitably change the nature of man-woman marriage as well. That's certainly been the experience of Scandinavia, the Netherlands, France and Canada, which have already started down this road. The move toward gay marriage is everywhere and always part and parcel of a larger project of unravelling marriage in general. Those countries that have experimented with one form or another of gay marriage have all soon suffered rising out-of-wedlock birth rates, which in turn lead to rising rates of child poverty.

The great problem now facing the other 49 states is whether and how the damage done by the Vermont decision can be contained within that state's borders. In 1996, Congress passed the Defense of Marriage Act, which permits states to refuse to recognize the validity of non-heterosexual "marriages" contracted in other states. So the logical next step in the campaign to overthrow marriage will be a challenge to the Defense of Marriage Act. The U.S. constitution requires each state to give "full faith and credit" to the official acts of every other state. Proponents of gay marriage will argue that this clause invalidates the Defense of Marriage Act -- and never mind that the clause goes on to grant Congress full power to regulate how this "full faith and credit" is to be "given effect."

All the leading candidates for president -- including such arch-liberals as Al Gore and Bill Bradley -- are on record opposing gay marriage. So is a vast majority of the members of Congress. But the question of the moment is not whether a candidate opposes gay marriage in theory, but how he intends to defend traditional marriage in practice. How will he make the Defense of Marriage Act effective? What hope can he offer to the majority of Vermonters offended and perplexed by the wild ruling of a hyper-activist court?

More than a century ago Congress refused to admit Utah to statehood until that Mormon-majority territory abolished polygamy. America's leaders then recognized that a republican government cannot function without stable families. Are the leaders of today as wise as those of the 1890s? The voters of campaign 2000 must ask. And they are entitled, if you'll forgive the expression, to a straight answer.

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