- The Washington Times - Thursday, December 23, 1999

The Vermont State Supreme Court unanimously ruled this week that the state must provide the same protections and benefits to homosexual couples that it does to married heterosexuals. The new ruling a breakthrough victory for homosexual-rights activists means that in the Green Mountain State at least, it is no longer legal to deny cohabiting homosexuals the benefits and protections, from health insurance, to tax breaks, to inheritance rights, that until now have been limited to married couples.

The court has left the next step to the Vermont legislature: whether to legalize homosexual marriage, which no state has done (nearly 30 states have passed laws against homosexual marriage), or to pass "domestic partnership" legislation, which the ruling ensures will be much broader than anything on the books in California or Hawaii, two states with existing domestic partnership laws. Regardless of which way the mostly Democratic Vermont state legislature votes, the legal distinctions between the two homosexual marriage or domestic partnership are largely negligible. What counts is that the highest court in Vermont has just decreed that cohabiting homosexuals must have all the legal advantages of wedlock.

Question: What effect, if any, might this ruling have beyond simply expanding the perks and protections of same-sex couples? Writing in National Review last month, David Frum examined the impact of similar legislation in France, where the state now allows homosexual couples to enter into a "civil solidarity pact." This pact enables co-signers to file joint tax returns, receive a co-signer's welfare and employment benefits, as well as enjoy the inheritance rights of a husband or wife. Even French citizenship is extended to noncitizen co-signers. To reap such benefits and more, all one need do is sign up for them. Should a change of heart ensue, the pact may be dissolved simply by giving three months notice in writing. All very convenient, n'est ce-pas?

As Mr. Frum writes, "After two years of haggling, the benefits of the pact have been extended to cohabiting heterosexuals, to widowed sisters living together, even to priests and their housekeepers. The French have crafted a grand new alternative to marriage, one that offers almost all of marriage's legal benefits and imposes many fewer of its legal obligations."

As Mr. Frum sees it, "There is every reason to expect the new pact gradually to crowd out and replace marriage… Gay marriage, as the French are vividly demonstrating, does not extend marital rights; it abolishes marriage and puts a new, flimsier institution in its place."

Whatever the ultimate legacy of the Vermont ruling, it is well worth noting that this radical decree has come from the bench, not the ballot box. Robert H. Bork, writing in the Wall Street Journal, wonders whether such apparent tolerance for judicial activism reflects a public "ill-informed about the shift in power from democratic institutions to authoritarian bodies" or whether "there is a general weariness with democracy and the endless struggles it entails."

On the Vermont bench, to be sure, there is evidence of an open disdain for democracy. Justice Denise R. Johnson wrote that the court should not even offer the state the opportunity to pass domestic partnership legislation, but rather should simply order it to legalize homosexual marriage outright. Failing to do so, she wrote, sends the plaintiff homosexuals to "an uncertain fate in the political cauldron of … moral debate" in the legislature. As Mr. Bork points out, any time moral debate in a legislature is disparaged as a "political cauldron," one comes to the brink of ceding control of our moral and cultural fate to what he terms "unrepresentative oligarchies." That, of course, is what has happened in Vermont.

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