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.