Same-Sex Marriage And The Supreme Court
How Vermont's 'Civil' War Fueled The Gay Marriage Movement
Originally published on Wed March 27, 2013 8:55 pm
It wasn't so long ago that a handful of Vermont legislators in a shabby Statehouse committee room struggled over what to call their proposal to give marriage-like rights to the state's gay and lesbian residents.
Democrat Howard Dean, governor at the time, had already made clear he'd veto any legislation labeled "marriage." Suggestions like "domestic partner relationship" were too clunky; "civil accord," they decided, evoked a car model.
"We wanted something that sounded dignified," says William Lippert, a Democrat who was vice chairman of the House Judiciary Committee writing the law. "We were trying to give it as much stature as possible, since we wouldn't be able to call it marriage."
Eventually, on a February day in 2000, they settled on "civil unions."
It seemed radical at the time, and tore the state apart so wretchedly and publicly that historians were hard-pressed to come up with a parallel. Imagine the recent Wisconsin union wars, only injected with sex and religion.
But the Legislature in Montpelier approved An Act Relating to Civil Unions, and Dean quietly signed it later that spring, making it the first law in the nation to extend marriage-like rights of any kind to gay and lesbian couples.
From Pioneering To Afterthought
For Lippert and his fellow part-time legislators who devised civil unions in response to a Vermont Supreme Court order, the issue's transformation since has been nothing short of astonishing.
So astonishing that Vermont's pioneering law is viewed by many as an artifact.
Nine states, including Vermont in 2009, as well as the District of Columbia, have since legalized full same-sex marriage.
And the U.S. Supreme Court next week will hear for the first time constitutional challenges to two laws that bar same-sex marriage, one passed by voters in California, and the other, the federal Defense of Marriage Act, passed by Congress in 1996.
Civil unions "went quickly from being the most cutting-edge thing to be attacked," Lippert says, "to being the conservative alternative to marriage equality."
Ten states followed Vermont's early civil unions example and extend to gay couples an array of spousal rights similar to, but short of, marriage. Most recent polls show that though 31 states have banned same-sex marriage, a growing majority of Americans — including President Obama — support marriage law equality for gay citizens.
As the nine U.S. Supreme Court justices prepare to consider the cases, it's worth recalling the early, but not long ago, role Vermont played and the price it paid in the historic metamorphosis of the issue.
A Shotgun 'Marriage'
Late in December 1999, Vermont's high court justices decided that two lesbian couples and one gay couple were correct in arguing that state law confining marriage to heterosexuals was discriminatory.
Fix it now, the court told the Legislature, either by extending full marriage rights and benefits to all or by creating a parallel status that would essentially do the same. The job to figure it out fell to the House Judiciary Committee, whose members included Lippert, then the only openly gay member of the Legislature, and Republican Rep. John Edwards, a retired longtime state trooper.
On a recent evening in the same small committee room where they worked with other members to write the bill, Lippert and Edwards recalled for NPR the tumultuous days that transformed them both.
Edwards, who represented a strongly French Canadian and Catholic district, knew how his constituents felt about same-sex marriage and what it would mean for his political career.
He recalls reading about the state Supreme Court's decision on the front page of his local newspaper and thinking, "Oh my god, what have we done?"
What followed was what Howard Dean later characterized as "the least civil public debate in the state in over a century" — so uncivil that, at times, the governor wore a bulletproof vest.
At hearings, anti-civil union activists denounced gays and lesbians as abominations, people who were sure to experience the wrath of God. They warned that approving civil unions would destabilize "traditional" marriage" and allow outsiders with a "homosexual agenda" to propel the state down an immoral path of no return.
One of the most vocal opponents, Republican Rep. Nancy Sheltra, brought in anti-gay, anti-abortion activist Randall Terry, who ran his operation out of a storefront just down the street from the Statehouse. The national media descended on the nation's smallest state capital.
"My feeling was that the entire country was focused on what we were doing," says Lippert, who has served in the House since 1994. "It was the most intense conversation ever about the place of gay and lesbian people in our communities."
Proponents of civil unions, and full same-sex marriage rights, argued that marriage was a civil, not a religious, right. They spoke of their families, some talked about their gay children, and of the Constitution's guarantee of equal protection under the law.
On two snowy nights, Vermonters packed the Statehouse for hearings, filling the House chamber, its window wells and balcony, clogging its hallways. In the event the emotional crowd turned on the legislators, state police had devised an escape route through a door in the back of the chamber, through the cafeteria and out.
Edwards and Lippert recall the police telling them that if they were ordered to leave, they needed to do so immediately — no questions asked.
It never got to that, but both men say there were moments at hearings in other parts of the state where they were frightened, including once when Lippert accepted an offer to have someone walk him to his car.
Passing A Law, Making History
Ultimately, it was Lippert and moderate Republican Rep. Thomas Little, House Judiciary chairman at the time, who emerged as catalysts for not only the law's creation, but also its passage.
Working shoulder-to-shoulder with Edwards and other members in that cramped committee room, and with colleagues who were invariably friends or more-than-nodding acquaintances, Lippert's persuasive, pastoral demeanor (he's a trained psychotherapist and comes from a line of preachers) nudged the issue forward.
"I knew that Bill [Lippert] was gay, and we'd talked about our families, you know, Bill's family, his partner," Edwards says.
But Edwards was like most people in the largely rural Green Mountain State and didn't have same-sex marriage on his radar.
It was a perspective at the time that was not unusual. "This was a world that was completely foreign to me," Dean, the former governor, said in a 2011 interview with Vermont Public Television describing his own "casual homophobia" in looking back at the civil unions debate.
"I was uncomfortable with gay people," he told interviewer Christopher Graff, "and with gay marriage."
Edwards knew that a yes vote for civil unions would almost certainly doom his re-election chances. But he says any doubts he harbored about the proposed law were banished when he read accounts of the civil rights debates of the 1960s. The language of that time startled him.
"Just change the N-word for nigger, for fags or faggots," Edwards says. "It was nothing new. Just that the object of the bile had been changed."
For Lippert, the opportunity to help change how gay and lesbian people were viewed was one for the ages.
"I felt deeply grateful," he said of his unique role. "I was grateful that I had an opportunity to be the voice or to be the face of all the gay and lesbian people that I knew," he said. "I got to be here. I got to be in the thick of this. And I got to hold out what was really true about the people that I knew and that I loved."
Not once, he says now, did he wish he weren't the only openly gay member of the Legislature attempting to carry out one of the most difficult jobs in the state's history.
If Vermonters point to a seminal moment in the rancorous debate over civil unions, it often is Lippert's speech on the House floor the day he and his fellow legislators voted on the bill.
Ross Sneyd, who was Vermont's Associated Press reporter covering civil unions, says that Lippert's speech is his clearest memory of that tumultuous time.
"You could have heard a pin drop in that building, and there were a lot of people there that night," says Sneyd, also openly gay at the time and now news director at Vermont Public Radio and, with his partner, proprietor of a bed and breakfast.
"It was just astounding because you can read the words, and they're pretty emotional," Sneyd says. "But to hear him deliver that was amazing."
Lippert says he gave his speech from notes to a hushed House chamber, speaking more extemporaneously than he expected, at times holding back tears, and without knowing whether the pro-civil union forces had the votes in the chamber to pass the bill.
"There remains afoot in Vermont prejudice against gay men and lesbians. ... I have been called names in this chamber, in this building, the likes of which I have never experienced in my life — my personal life or my political life. And I've watched come true what I have always known to be true. That those who stand beside gay and lesbian people as their allies ... they get targeted, too. ...
"I've had members of my committee say, 'I couldn't sleep at night; I've had knots in my stomach.' I wouldn't have wished this on any of them."
Gay and lesbian Vermonters, he said, are your friends, neighbors and relatives who simply want the rights that everyone else has.
After Lippert spoke that day, Sheltra stood to denounce the legislation as "legalizing sodomy." And then Democratic Rep. Mary Mazzariello rose to make an emotional plea for civil unions, revealing for the first time publicly that she has two lesbian daughters and longed for them to have the same opportunities for love and family as her straight son.
"They did not choose to be different," she said. "Their pain and their inability to fit the mold has been our pain, too."
Late that night, the House approved the measure; the Senate would later do the same, sending it to the governor's desk for his signature.
No Change/Much Change
Vermont weathered the civil unions debate, and the conversation years later over its gay marriage bill was largely wrung of the earlier vitriol.
But there were prices to be paid.
Anti-civil unions forces organized a "Take Back Vermont" effort that helped lead to the defeat in the next election of all but one of the 14 Republican House members who voted for civil unions. Edwards, who had taken office in 1997, was one of the victims.
Mazzariello also lost her seat, along with a slew of other Democrats, handing control of the House to Republicans for the first time in 14 years. But now, more than a decade later, Democrats retain firm control the House, which they won back in 2004 when Sheltra and 13 other Republicans lost in what Steve Delaney described as the "symbolic end of the political convulsions" of the civil unions debate.
Democrat Peter Shumlin, who as Senate president pro tem in 2000 was instrumental in ushering through the civil unions bill, is in the governor's office and chairs the national Democratic Governors Association. Beth Robinson, one of the lawyers who argued the marriage equality case before the Vermont Supreme Court and who led the effort to pass the state's same-sex marriage law, is herself a justice on that same court.
The big cultural debate this session in Montpelier is over assisted suicide.
The Rev. Craig Benson, a fierce opponent of civil unions and same-sex marriage, still holds the same views. For now, however, he has largely shifted his efforts to thwarting assisted suicide legislation.
"You may have strong opinions on this issue, but it's not something that's part of your daily life," Benson said during a recent interview in his Cambridge, Vt., church. "Because between the court and the Legislature and the political makeup of the state, there's no options left for bringing the question back up. There's no obvious way where you can take action."
As for how the state has changed after the dire predictions made by opponents in 2000, Benson says not much.
"I don't think anyone who's not interacting with the various forms of the gay community will have noticed a huge difference," he said, "but it was never about a difference we would notice. It was about what was right to have as the law of the land."
For Edwards, there has been a personal change since civil unions. After losing his political career, he received a Bush administration appointment as U.S. marshal, and has remained friendly with Lippert and others whose relationships were sealed during the civil unions upheaval.
But he is nostalgic about his days in the Statehouse.
A New Course
"It was a great honor to represent my district and I loved this place, I loved the process, I loved the people," Edwards says. "So it was a disappointment and I honestly have missed it ever since."
"There was always something that you could get involved in, and if you were thoughtful," he says, "you might even make a difference."
Edwards jokes that Republicans have since come to him to note that hellfire hasn't rained down on Vermont, that nothing much has changed.
Lippert, however, now one of a half-dozen openly gay Vermont legislators, has another take.
"This is very emotional for me," he says, standing again on the floor of the House, Edwards at his side. "John and my fellow colleagues helped us create civil unions, and John and others gave their political lives for the success of creating the first legal recognition anywhere in the United State for same-sex couples."
Both men are convinced that what Vermont went through — the agonizing conversations, the vitriol and ugliness, the tears and the moments of grace — set a new course for gay rights and reset the conversation for those that would come after across the nation.
"John and those who lost," Lippert says, "are my heroes, to this day."
AUDIE CORNISH, HOST:
From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.
ROBERT SIEGEL, HOST:
And I'm Robert Siegel.
Before same-sex marriage, there were civil unions. The term was coined in Vermont. Thirteen years ago, Vermont became the first state to extend rights to gay couples. It did not do so easily or by choice. It was forced on the state by the Vermont Supreme Court.
In light of this week's Supreme Court arguments over gay marriage, NPR's Liz Halloran recently sat down with two key players from that tumultuous period in Vermont. And a caution: The story contains language that some listeners may find offensive.
LIZ HALLORAN, BYLINE: The court decree landed like a grenade in a state better known for ice cream than gay rights activism. John Edwards was a Republican state legislator.
JOHN EDWARDS: I woke up one day and the decision was on the front page. And I said, oh, my God. What have we done?
HALLORAN: What the court had done was unprecedented. It found the state's marriage law discriminatory and ordered that gay couples be given the same rights as their heterosexual neighbors. It was up to the state legislature to figure out how, and that had not been on Edwards' to-do list.
EDWARDS: I mean, I was probably like 99 percent of the people out there. And, you know, it wasn't an issue for most of us.
HALLORAN: Almost overnight, the small state splintered. Neighbors stopped speaking to one another. Governor Howard Dean sometimes wore a bulletproof vest. Metal detectors were installed at the statehouse. And legislators like Edwards at times feared for their safety and for their political futures.
EDWARDS: I knew from talking to my constituents how they felt about it. You know, if it was put to a vote up there, it would overwhelmingly go down to defeat.
HALLORAN: Edwards and Democrat Bill Lippert - the only openly gay member of the legislature back then - served together on the committee that had to write a law to satisfy the court. Even just coming up with a name for what they were doing was hard.
EDWARDS: We had to have a title on the bill. And we didn't have one.
BILL LIPPERT: I remember one of the suggestions was how about civil accord? And everyone looked around and said, it sounds like the model of a car. We can't do that. And then I...
HALLORAN: But back in 2000, there were few laughs. They say the worst was a hearing at the high school in St. Albans, in the north of the state.
EDWARDS: That was really nasty. The auditorium was packed. And I walked in there, I said, oh, my God. You could feel it, you know? And, you know, I probably could put a name on - I don't know - 50, 60 percent of the people. And the ones I couldn't put a name with, I sort of recognized.
HALLORAN: Democrat Bill Lippert.
LIPPERT: The volume of the crowd and the negativity was - it was so raw and so apparent. It was like this was not going to be good.
HALLORAN: State police had provided security for the hearings at the statehouse. But Lippert says there was no security in the high school auditorium that night.
LIPPERT: I was frightened. And I think someone actually offered to walk with me to my car.
HALLORAN: Lippert says that the anti-gay vitriol in St. Albans was so threatening that it persuaded some legislators to vote for civil unions. Others were persuaded by Lippert's speech before a packed House chamber the day of the vote.
LIPPERT: I started by saying: I think it's important to put a face on this. I think it's important to ask who it is that we're talking about.
HALLORAN: Vermont Public Radio recorded his words back then.
(SOUNDBITE OF ARCHIVED AUDIO)
LIPPERT: We are not a threat. We are not a threat to traditional marriage. We are not a threat to your communities. We are, in fact, an asset.
HALLORAN: Edwards, the Republican, was among those who came around. Like many elected officials today, he says what proved powerful to him were the mothers and fathers who testified about their gay children's lives. He came to see parallels with the Civil Rights Movement of the 1960s.
EDWARDS: It was nothing new, just that the object of the bile had been changed. It was really word for word. You just changed the N-word, nigger, for fags or faggots or whatever you wanted to call.
HALLORAN: And yet, the conversation rapidly changed. Vermont's cutting-edge law quickly became the conservative alternative to same-sex marriage.
Still, the political costs at the time were high. Democrats lost control of the House. And all but one of the 14 Republicans who voted for civil unions lost, Edwards included.
EDWARDS: It was a great honor to represent my district, and I have honestly missed it ever since.
HALLORAN: Lippert remains in the statehouse and is chairman of its judiciary committee.
LIPPERT: My fellow colleagues who gave their political lives for the success of creating the first legal recognition anywhere in the United States for same-sex couples, John and those who lost are my heroes to this day.
HALLORAN: Vermont went on to pass a gay marriage law in 2009.
Liz Halloran, NPR News. Transcript provided by NPR, Copyright NPR.