- The Washington Times - Tuesday, January 18, 2000

The Supreme Court of Vermont last month twisted a general good government provision of the state constitution to fashion what its Abstract Expressionist jurists believed is enlightened policy toward homosexual partners, like supplanting Norman Rockwell paintings for those of Jackson Pollock in the state capitol building.

It unanimously held that confining marriage to persons of the opposite sex affronted the state constitutional mandate in Chapter I, article 7 requiring the government act for the "common benefit" of the people and not to the particular advantage of any "family" or "set of persons" who are but part of the community. Writing for the Vermont court in Baker vs. State of Vermont (Dec. 20, 1999), Chief Justice Jeffrey L. Amestoy directed the legislature either to legalize homosexual marriages or to provide homosexual partners with all the benefits or advantages enjoyed by married couples.

The Baker decision represents interpretive sophistry at its worst, and should evoke condemnation by all who subscribe to the rule of law over rule by Platonic guardians whatever their policy views on homosexual rights.

Article 7 voices a general exhortation to the government of Vermont to promote the welfare of the community in lieu of private family, dynastic, religious or noble interests that were common in Great Britain and Bourbon France at the time of the American Revolution. Similar provisions can be found in virtually every state constitution, and in the United States Constitution. The Preamble of the latter, for instance, enshrines promoting the "general welfare" as a central constitutional objective, and Article I, section 9 prohibits any "title of nobility."

Article 7, in pertinent part, declares, "That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of the community." It originated in Vermont's initial charter of government, the state's 1777 constitution. Its history is barren of any hint of challenge to monogamous, opposite-sex marriage laws, which were then universal in the United States. Polygamy and bigamy were forbidden every bit as much as homosexual unions.

Further, article 7 was not envisioned by its framers as a judicial mandate to invalidate legislative classifications because thought unfair or ill-reasoned. Indeed, legal handicaps on women, half of the community, were commonplaces.

Chief Justice Amestoy, however, sallied forth with the dauntlessness of Don Quixote to surmount these seemingly insurmountable hurdles. He invoked the language, history and "values at the core" of article 7 to destroy the defenders of same-sex marriage.

Its original meaning, he maintained, defied the exactitude of mathematics, and was therefore a task for professional historians, not judges or lawyers. In other words, the original meaning test was abandoned because it discredited the chief justice's desired result, even though it was faithful to customary canons of interpretation.

Sounding like an outre sociologist, Vermont's most august judge lectured: "Out of the shifting and kaleidoscope of events, social forces, and ideas that culminated in the Vermont Constitution of 1777, our task is to distill the essence, the motivating ideal of the framers. The challenge is to remain faithful to that historical ideal, while addressing contemporary issues that the framers undoubtedly could never have imagined."

Not only is that judicial babble non-judicial, its own terms militated against its use in the Baker case. The framers of 1777 emphatically did imagine the possibility of homosexual marriages, and every Vermont legislature from the outset of its statehood outlawed such unions. Novelty, thus, did not justify a loose interpretation of article 7, as might be persuasive in addressing questions of wiretapping, video or electronic police surveillance that were beyond the vision of even the most far-seeing prophet of 1777.

The "core value" canon of construction celebrated by Chief Justice Amestoy also undermined his conclusion. If the central value of article 7 frowned on a preference for monogamous and opposite-sex marriage over same-sex unions, at least one person in the community might have been expected to have given voice to that idea. A judge should not lightly presume that all politicians and citizens are unlettered yahoos. Yet the chief justice was unable to summon even one reasonably contemporary witness who saw in the 1777 charter what he insists is self-evident in 1999.

Reinventing history, he declaimed ex cathedra that the framers' overarching objective in article 7 was an insistence that everyone enjoy equality before the law and enjoy an equal voice in government and equal share in the fruits of the common enterprise, although the word "equality" is conspicuously absent from its text. Moreover, neither women nor blacks nor Native Americans in 1777 were accorded such equality, and article 7 was not then said to mandate the elimination of their legal degradation. Additionally, it is difficult to perceive how limiting marriage to persons of the opposite sex constitutes special class or other preferment. That relationship is available to everyone in the community. It is no more preferment than legalizing monogamous but not bigamous or polygamous marriages, a discrimination the Baker decision left undisturbed.

In sum, the Vermont Supreme Court justices in Baker did not judge; they usurped.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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