Vermont has become the fourth state to recognize same-sex marriage. Yesterday, Governor Jim Douglas followed through with his threat to veto legislation that legalized same-sex marriage. Today, however, the state legislature swiftly overturned the veto, by a vote of 23-5 in the Senate and 100-49 in the House. Prior to the veto override, former governor and past presidential candidate Howard Dean urged lawmakers to pass the measure.
Vermont joins three other states that recognize same-sex marriages. Last week, the Iowa Supreme Court unanimously held that a state prohibition of same-sex marriage violated the state constitution. The Connecticut Supreme Court issued a similar ruling last year. And in 2004, the Supreme Judicial Court of Massachusetts invalidated a state ban on same-sex marriage. Although the highest courts in Hawaii and California also invalidated those states' prohibitions of same-sex marriage, voters overturned those rulings by constitutional amendment.
Social Movements Activity
The dramatic movement on this issue results from a litigation strategy devised by same-sex marriage proponents. Vermont is the only state to legalize same-sex marriage through legislation. Although court involvement in the issue has led some commentators to make claims of "judicial activism," the rulings have reasonably applied existing state law doctrine.
President Obama has stated that he does not support same-sex marriage. And while marriage is typically regulated by local law, the constitutional issues the subject implicates can bring it into the purview of federal courts. Advocates, however, have largely avoided the federal courts given their conservatism. Nevertheless, a recent litigation seeks to invalidate a portion of the Defense of Marriage Act that denies equal federal benefits to same-sex couples who are lawfully married in their home states. The Obama administration has not responded to the lawsuit, but during his campaign, he said that he supported the repeal of DOMA.
Closing Thought
I often disagree with proponents of same-sex marriage because they typically do not favor disbursing important social benefits (health care, etc.) to nonmarital relationships. Nevertheless, I support the recent rulings and legislation because the denial of same-sex marriage raises very compelling equal protection and fundamental rights concerns. The recent success of this movement, however, should not foreclose debate over the necessity of using marriage as the exclusive or primary vehicle for distributing social resources and benefits.
Related Readings on Dissenting Justice:
Sorry, Adam and Steve: If You Get Married, We Must Allow the Smith Triplets to Wed Each Other As Well!
Advice to Vermont: Veto Your Governor!
Utterly Empty Rhetoric: Some Conservatives Argue That the Iowa Supreme Court Engaged in "Judicial Activism"
Iowa Supreme Court Strikes Down Gay Marriage Ban
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