Quick follow-up to Friday’s post: Vermont just became the first state to adopt same-sex marriage by legislative vote, with an override of the governor’s veto. A couple of questions for commenters:
–Many critics of judicial decisions promoting same-sex marriage had previously focused their complaints on courts’ “activist” interpretation of state constitutions or their circumvention of popular will. Will those critics support or at least accept this development in Vermont? (My guess is that some will, because some are sincere in their preference for major social change to come through the democratic process–but for many others the process arguments are fig leaves, covering antipathy toward same-sex marriage itself.)
–What lessons will historians draw concerning the ability of courts to promote social change? As readers no doubt remember, Vermont’s supreme court issued a landmark decision nearly ten years ago requiring reform of the marriage law, but holding that civil unions were a constitutionally permissible alternative to marriage. The legislature at that time chose civil unions, but over the course of the past decade, apparently, social norms in Vermont have shifted. Can the judicial decision be credited with triggering that shift, by starting a statewide (indeed, nationwide) conversation? If so, was the court’s deference to the legislature in selecting the remedy wise from the perspective of promoting lasting social change? Or could a similar result have been reached if the court had just gone the whole distance on its own, as in Massachusetts or Connecticut–or California, where chances are good, considering demographics and changing attitudes, that it won’t take ten years for the people to reinstate the rule adopted by the high court? (Of course, these comparisons are complicated by the fact that Vermont’s decision came considerably earlier in our national conversation about this issue. In 1999, the main precedent for the Vermont court to consider was what had happened in Hawaii, where voters had amended the state constitution following a court decision that had taken a big step toward legalizing same-sex marriage.)
UPDATE: Also today, the city council of Washington, DC voted unanimously to recognize same-sex marriages performed in other states. It’s been an eventful few days on this front!