Did we win, lose, or is it a draw?
by Daryl Moore

"Vermont has a constitutional obligation to extend same-sex couples the same benefits, protection, and security that Vermont law provides opposite-sex couples." So said the Vermont Supreme Court in Baker vs. State when it held that the constitutional rights of three same-sex couples were violated when they applied for but were denied marriage licenses.

When I first heard the news from Vermont, I was thrilled. But after I read the opinion, I wasn't sure how I felt.

The Baker decision sounds like a victory for same-sex couples. And perhaps it will eventually prove to be one. For now, however, three same-sex couples who have lived together in committed relationships for periods ranging from four to 25 years, and two of which have raised children, will have to wait a little longer.

Why? Because although the Vermont Supreme Court may have started out its opinion with a bang by declaring that same-sex couples are entitled to the same benefits as opposite-sex couples, it ended with a whimper by sending the issue to the Vermont Legislature.

Specifically, after holding that Vermont is constitutionally required to extend same-sex couples the same benefits and protections that flow from marriage, the Vermont Supreme Court decided that "whether this ultimately takes the form of inclusion within the marriage laws themselves or a parallel Œdomestic partnership' system or some equivalent statutory alternative, rests with the Legislature."

I don't like decisions that split the baby. Nobody won here. The court found a constitutional violation, so why did they put the plaintiffs on hold? After setting aside every groundless assertion set forth by the state in its argument against same-sex marriage, and after concluding that the plaintiffs' constitutional rights had been violated, why did the court refuse to grant the plaintiffs any relief.

It did so because it worried that "a sudden change in the marriage laws or the statutory benefits traditionally incident to marriage may have disruptive and unforeseen consequences.... Uncertainty and confusion could result."

Disruptive to whom? Uncertainty and confusion about what? The court doesn't bother to explain.

The court's bravery in recognizing and striking down discrimination against same-sex couples is commendable. Its refusal to afford same-sex couples an immediate remedy is not.

In a blistering dissent, Justice Denise Johnson pointed out the problem with the majority's decision. She wrote: "I respectfully dissent from the [majority's] novel and truncated remedy, which in my view abdicates this Court's constitutional duty to redress violations of constitutional rights."

Judge Johnson recalled a similar case in 1948, when the California Supreme Court struck down a law that barred interracial couples from getting marriage licenses. In that case, the state court did declare the interracial couples winners, and then told them to wait for a remedy. It held that the law was unconstitutional and found that the couples were entitled to apply for and receive marriage licenses. It did not send them to legislative purgatory to sit on their hands while a bunch of lawmakers contemplated some "separate but equal" scheme.

Accordingly, Johnson argued that same-sex couples are entitled to immediate relief, just like the interracial couples in 1948 were. She reasoned that "groups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time."

And, she chided the majority's decision to punt, concluding that it "leaves the plaintiffs without redress and sends the matter to an uncertain fate in the Legislature."

I agree with Judge Johnson. The prevailing plaintiffs in Vermont walked away with nothing more than a declaration that they are right. But they still cannot marry. Their relationships still enjoy no legal recognition. And the court's directive that the Vermont Legislature take some act to remedy the wrong rings hollow.

We've been here before. An Hawaii court has already held that same-sex couples should be allowed to marry. And, an Hawaii electorate has already erased that holding by passing a constitutional amendment banning same-sex marriages.

By refusing to give the plaintiffs in Baker immediate relief, the Vermont Supreme Court -- intentionally or not -- invited the Vermont electorate to do the same thing the Hawaii electorate did.

So, while we patiently wait for the Vermont Legislature to move toward reform, we will wonder whether the court's opinion in Baker is a win, a loss, or a draw.