X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Civil Wars by David Moats (Harcourt, 288 pages, $25) From Massachusetts’ Statehouse to San Francisco’s City Hall, few current political controversies pose more difficult moral, legal, and philosophical questions than that of same-sex marriage. Is marriage a right or a privilege? How can a secular state account for and draw upon the deep religious roots of marriage? What is the purpose of marriage — if it can be said to have only one? Should gays and lesbians be allowed to marry for basic reasons of equality, or do they differ in important and relevant ways from straight couples? Or does the very phrasing of the question — a “they” that implies an “us” — reflect prejudice in American society against homosexual couples? What of federalism? Is gay marriage a question for the states or is it, like civil rights for African-Americans, an issue we cannot afford to leave to the vagaries of any community’s traditions, however long-standing? David Moats’ Civil Wars: A Battle for Gay Marriage does not delve deeply into these thorny analytical questions. Instead the Pulitzer Prize-winning editorial-page editor of the Rutland Herald recounts how Vermont’s 1999 civil union law came about. In a year when the issue of gay marriage has provoked the president to support a constitutional amendment restricting marriage to a heterosexual union and is sure to play a role in the presidential election, it should be required reading for every voter. Unfortunately Civil Wars gets off to a clunky start in a first chapter describing the whereabouts of a cast of more than a dozen characters as the Vermont Supreme Court handed down its historic decision in Baker v. Vermont. Moats’ technique of introducing his players — describing each by occupation, appearance, location, and mini-biography — soon becomes repetitive. We learn, for instance, that plaintiffs attorney Beth Robinson was “trim and athletic, with an intense gaze,” while her co-counsel Susan Murray was “tall and affable, with flecks of gray in her dark hair”; that two of the plaintiffs “were running errands in Burlington on the morning of December 20″; that another, Stan Baker, the name plaintiff in Baker, was “a psychotherapist with curly silver hair who spoke in evenly modulated and reassuring tones.” Frustratingly, only three or four of these people have a major role to play in the book, although certainly all of them contributed to changing the law in Vermont. Reading about them is like being invited to a class reunion at a school you didn’t attend — everyone is connected to everyone else, but hearing the explanations of just how is a lot more interesting to them than to you. Moats continues with these personal histories over the next several chapters, backing up decades to intertwine the personal journeys of his characters, both gay and straight, with the history of the gay rights movement across the nation and in Vermont. Much of this background will be familiar to any student of American history or law, as Moats describes everything from the Stonewall riots to the shooting of Harvey Milk to the groundbreaking 1993 Hawaii Supreme Court ruling in Baehr v. Lewin that the state constitution prohibited the legislature from banning same-sex marriage, a ruling that prompted a state constitutional amendment limiting marriage to heterosexual couples. Moats depicts the gay-rights movement in general and Baker in particular as “the latest tumultuous chapter in a decades-long struggle for civil rights in America.” But to view Baker as “the culmination of a history reaching back at least thirty years” is to distort the much more complex history of the search for equality by women, racial and ethnic minorities, gays and lesbians, and other marginalized groups in American society. That history has not been one of uninterrupted progress, and indeed, many of these groups arguably have found their civil rights under siege during the last decade. The personal stories provide the biggest payoff in this part of Moats’ account. The anecdotes in these chapters come with built-in significance: in one family’s expression of love and acceptance when their son tells them he’s gay; in the thanks a waiter gives a legislator for a controversial vote on a hate-crimes bill; in the description of the fabric of everyday life in the close-knit rural Vermont communities that attract so many of those who figure in Moats’ tale. Moats clearly loves his adopted state and finds endless fascination in the life stories of its residents. But not until Moats returns to the specifics of Baker and its aftermath does the book pick up steam. Although Moats’ grasp of the legal issues in Baker is a bit shaky, his interviews with the justices of the Vermont Supreme Court provide a fascinating glimpse inside judicial decision making. In their initial conference, the justices found themselves unanimously agreed that preventing same-sex couples from receiving the benefits that flow from heterosexual marriage violated the state constitution. But they were unable to agree either on the legal grounds for the decision or on the proper remedy. Justice Denise Johnson, who in the end dissented in part from the judgment, viewed Baker as a clear case of gender discrimination: The state irrationally prohibited a man from marrying a man instead of a woman, or a woman from marrying a woman instead of a man. Strict scrutiny of the marriage law was warranted by the fact that marriage itself was a fundamental right. Her ruling would have provided plaintiffs with immediate relief by simply granting them the right to marry. The other justices signed on to the view of Chief Justice Jeffrey Amestoy, who relied on an economic understanding of Vermont’s common benefit clause in holding that the state could not provide the bundle of benefits that marriage represented to heterosexual couples, but deny them to homosexual couples. Full, formal equality — including the word “marriage” — would not be required under Amestoy’s decision. To get to this more limited result, Amestoy offered an intermediate, and entirely new, level of scrutiny, one that a “high-ranking judge” speaking to Moats on the condition of anonymity referred to as “judicial activism in the best sense of the term.” (Since Moats characterizes Amestoy’s decision as almost entirely lacking in legal principle and based largely on political considerations, one is left wondering what might constitute judicial activism in the worst sense of the term.) Amestoy’s remedy was to remand the case to the legislature to draft a law that would bring benefits to gay and straight couples into closer proximity. Vermont’s legislators hence faced a political dilemma: The court was essentially requiring them to enact via a democratic process politically unpopular legislation, but leaving it for them to determine what shape that legislation would take. Although he never fully states the belief, Amestoy seems to have felt that this would lend the court order legitimacy, and indeed that proved to be the case, but not until after a difficult and draining political fight. It is the play-by-play of that bitter political battle that makes up the book’s finest and most compelling section. In order to help them decide on the best course of action, as well as to give all sides the opportunity to be heard, the legislators held a series of official and informal hearings over a period of months. This, finally, is where Moats’ book comes into its own, changing from workmanlike profiles of the players to a page-turner of political and social reportage. In these latter chapters, Moats makes us feel present at meeting after meeting where Vermont’s citizens — proud of their traditions of political access, freedom, and openness — speak their minds in countless public forums, from the statehouse to town meetings to public high schools. The debate is not always civilized; frequent are the late-night phone calls, hate mail, and other threats of violence against supporters of civil unions. Yet, over time, a majority view, if not a consensus, begins to emerge from all this deliberation. Moats gives us samples of the arguments offered on both sides, while managing both to make clear his own view of the worth of the arguments and to avoid inserting himself too overtly as a commentator. There are the statements of civil union’s opponents, including that of its most eloquent religious critic, Roman Catholic Bishop Kenneth Angell, who proclaims “love and respect” for homosexuals while asking that marriage not be expanded lest it “attack that age-old truth that traditional marriages and stable families constitute the very foundation of our society.” Others call on the legislature to “stand against what seems to be an abuse of judicial powers,” or argue that civilization cannot withstand “the decay of moral values,” or contend that “[s]pecial interests are using us as a guinea pig,” or maintain that gay marriage is “a dramatic breakdown from what God intended.” Proponents of the bill also appeal to religion, particularly the value placed on love in the Bible. Frequently they champion equality, the idea that “[e]ither we are equal in the eyes of the law or we aren’t,” or that “[t]o deny other human beings basic human rights . . . is to deny our own humanity.” Some who stand in favor of civil unions disclose, to the surprise of acquaintances, that they themselves are gay. Often, gay and lesbian speakers refer to the value they place on family, emphasizing that “I want the right to provide the benefits and privileges to my family and children that are now being denied only because of unfounded prejudices” and that “I want you to know that my partner and I understand the term family.” And then there are those like Bill Lippert, who stand up in front of their friends, colleagues, and neighbors to explain what loving a person of the same gender has meant in their lives, and what state recognition of that love would mean. Lippert’s speech is the emotional high point of both the book and the House battle over civil unions. A well-respected legislator, key in holding together a coalition of supporters for the civil unions bill, Lippert was also the person to whom the Republican chair of the House Judiciary Committee, Tom Little, turned when Little and other bill sponsors realized they were a crucial handful of votes short of their margin of error the night before voting began. At their request, Lippert rose to speak the next day, and the speech he delivered is an astonishing piece of rhetoric: “Who are we? We are committed, caring, loving individuals in a time when desire for greater commitment, greater love, greater fidelity is needed in our society, and I find it so ironic that rather than being embraced and welcomed, we are seen as a threat.” Later that evening, the civil unions bill passed in the House by an 11-vote margin. But the legislation still had to pass the Senate. In fact, but for the behind-the-scenes intervention of then-Gov. Howard Dean, Senate leaders concerned about imperiling their control of the upper chamber might have delayed a vote on civil unions until after the November election. As one of the senators recalled of a meeting with the governor, Dean listened to their proposal with red-faced, vein-popping anger. “[E]very once in a while,” he replied, “you have an opportunity to change history and do the right thing. And that’s what we’re going to do.” Still the Senate Democratic moderates hesitated, looking for some middle ground, until a stormy and frightening meeting in the town of St. Albans changed their minds. Eight legislators drove through snow and cold to answer constituents’ questions about the bill, but angry opponents of civil unions shouted them down with jeers and boos. The meeting descended into an audience free-for-all. When supporters of the bill, such as a girl with two lesbian parents, stood to speak, they were silenced with obscenities and cries of “What do they do to you at night?” The perceived unreasonableness of the St. Albans crowd convinced the moderate senators that attempts at compromise were futile. As one pro-civil union senator put it, “The bigots of St. Albans should know we have them to thank for civil unions.” Of course, Vermont’s experience may be a poor predictor of the way a nationwide, well-financed, media-driven fight over gay marriage would unfold. Not all communities in the nation are as tolerant as Vermont, the sole state to have a Socialist representative in Congress. Nor are all courts, much less the U.S. Supreme Court, as Solomonic as Vermont’s Supreme Court. Some state high courts, like Massachusetts’ and Hawaii’s, will certainly declare that institutions like civil unions are akin to “separate but equal” forms of marriage for gay and lesbian couples; others may be unsympathetic to such arguments; and still others will have their options foreclosed by state constitutional amendments. All of this says nothing about the difficult legal problem of recognizing such unions across state boundaries. It remains to be seen, in fact, whether America can resolve the question of equal rights for gay and lesbian couples and their children through normal political and legal channels, or whether gay marriage will become “the next abortion,” an issue that divides the country and breeds decades of social protest and violence. Yet Moats’ book is a timely reminder that the gay community is no stranger to violence and even murder; and that despite that cruelty, or perhaps because of a growing understanding on the part of ordinary Americans of just what that hatred means, there may be hope for people who are asking nothing more than to live out their lives in peace with the people they love. Civil Wars’ patient and subtle case for same-sex unions will certainly not convince everyone, but it may be that more Americans are ready to hear its message of tolerance and understanding than today’s polls and politics would indicate. Beth Johnston is a lawyer and writer in Cambridge, Mass.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.