Twelve years ago, no doubt emboldened by the Vermont Supreme Court's astonishingly imaginative opinion in Brigham v State (the 1996 education finance case), three same-sex couples went to court to demand that they be issued licenses to marry. They lost in the superior court, but were rewarded with the Supreme Court's 1999 opinion in Baker v. State.
That opinion instructed the legislature to promptly pass legislation giving same-sex couples "all or most" of the privileges of marriage (or else, the Court strongly implied, it would simply proclaim same-sex marriage from the bench).
The result was the controversial civil unions law of 2000,that essentially gave same-sex couples all the benefits of marriage except joint income tax return filing.
Since then the Massachusetts, California and Connecticut Supreme Courts have held, notwithstanding the scarcity of state constitutional support, that same-sex couples have a right to participate in marriage on the same basis as opposite-sex couples.
Since these decisions, a wave of constitutional referenda has made it crystal clear in thirty states that marriage is available only to one man and one woman (who are of age, legally competent, not closely related, and not already married.) Indeed, never in U.S. history has either a state legislature or a vote of the people authorized same-sex marriage.
But that may soon change. Gay and lesbian activists believe that Vermont's ultra-liberal legislature can become the first in the nation to legalize same-sex marriage. On their behalf, Rep. Mark Larson and 58 Democratic cosponsors have introduced H.178, and Senators Peter Shumlin, John Campbell and Claire Ayer have introduced S.115.
The issue raises high emotions on both sides. The gay and lesbian activists, and their many straight supporters, believe that legislating same-sex marriage will wipe out a long legacy of disgraceful discrimination, and confer the much sought after status of marriage on loving and mutually committed couples unfairly discriminated against.
Probably a majority of opponents base their opposition on religious grounds, as contrary to church teachings and natural law. There is also a secular argument that deserves more attention than it has gotten.
Marriage, so this argument goes, serves three important social functions: procreation and child rearing, mutual care and assistance, and reining in horny young males by linking approved sex to a serious and long-lasting social commitment.
True, the sexual liberalism that began in the Sixties has undermined this third argument; nevertheless, it's important for the laws and customs to give maximum support to the traditional institution of marriage. At least that support will slow down the slide into totally commitment-free sexual license, resulting in ever more single mothers and fatherless children.
The gays and lesbians may well say, we're pro-marriage, and those are valid arguments. But how does allowing us, loving and committed couples, to enjoy the status and benefits of marriage undermine the institution of marriage?
The response is that prohibiting discrimination against same-sex couples seeking marriage cannot be limited to just those couples. If two men or two women can marry, why not two of each as a foursome? Or a Muslim taking four wives? Or brothers and sisters? Or an entire Perfectionist "complex marriage" commune (Putney, 1830s)?
Gay marriage advocates scoff at this as a red herring. They should however, heed the argument made to the Supreme Court by Vermont Attorney General William Sorrell - certainly nobody's conservative - in the Baker appeal. Said he, "[If the Court accepts gay and lesbian Appellant's argument for] separating the [marriage] statutes from their language and their historical foundations, the groundwork will be laid for other groups to claim the right to marry. The most obvious are polygamists and proponents of group marriage. Following the arguments of Appellants, such persons would have strong claims to fit within the 'purposes' of the marriage statutes."
And there's the rub. Statutes and judicial opinions allowing every conceivable collection of humans to unite in legal marriage will eventually make the idea and practice of marriage a laughing stock - especially among young heterosexual males who society most wants to channel into stable, legally recognized relationships responsible for child rearing and support.
The legislature was faced with just such an emotionally charged issue in 1976: whether to create a Vermont lottery. The legislature decreed a referendum to get the opinion of the people. By a 72-28 margin, the voters supported the creation of a lottery. The next year the legislature adopted it.
That would be the responsible thing for this legislature to do on the issue of enlarging the definition of marriage. Then every legislator elected in 2010 would know where his or her constituents stood on the issue. The question could then be settled one way or the other with a clear mandate from the people.
John McClaughry is president of the Ethan Allen Institute (www.ethanallen.org).