Marriage in VT

***UPDATE: The VT house has just overridden the governor’s veto.  This makes VT the first state in the country to legislatively allow same-sex couples the right to marry.  Fantastic.

Now, I need to get back to paying attention in Con Law.


I haven’t mention it much yet, but VT has an important day today.

Recently, the VT legislature passed a bill which would legalize same-sex marriage.  But, the high profile bill was vetoed by the Governor.  

Today, the legislature is taking up the vote again to over-ride the Governor’s veto.  The Senate just passed the measure, and the House is discussing it now.  From what I have heard, it’s suppose to be a toss up in the House.

You can watch the live-blog HERE.

This is how its suppose to be done.  No courts.  Just debate and logic between the people’s representatives.

4 thoughts on “Marriage in VT

  1. Ideally I’d agree with you that the people’s representatives should decide these things. I fear, however, whether they would be representing the people’s abstract belief in freedom and equality or their baser irrational prejudices.

  2. Valid point. I agree. The courts obviously have some role in the policy-making process in that they act as the safety-net when those ‘baser irrational prejudices’ influence the legislature to cross the uncrossable lines.

    The trouble is figuring out where those uncrossable lines are drawn AND whether those lines change over time.

    Personally, I do think there is rationality in the courts finding the denial of SSM to have crossed one of those lines based on the equal protection clause. But I can understand the dissent.

    And either way, passage through the legislature is supremely preferable, because it indicates the broader cultural changes on the issue which are as important as the civil marriage rights themselves.

  3. This brings up an interesting question. I can glean from some of your posts an approximation of how you may feel about the role and scope of the courts, e.g. the want for the legistlature to ultimately decide these contentious issues. Given the admittedly fragile logic behind the so called penumbra effect and the precipice on which it leaves unenumerated rights as a result, I wonder if you have difficulty marrying social ideals and constitutional principles.

    I, personally, am unsure about how I can resolve the two. Perhaps, however, you can enlighten me seeing as you’ve been through a year of law school. The bigger question is at what point does the age of case law solidify substantive due process as an established and unchanging paradigm. If there is an answer, that may well put to bed many of these social value debates.

  4. Quite the provocative thoughts/questions. First off, I have no doubt that you will ultimately be able to glean more from your first year of law school than I have from mine. A muddled mess if there every was one.

    As I’m sure you already know by the way you phrased your comments, if I had the silver bullet answer to placate the decades-long struggle between advancing social values and retaining logic/objectivity in Constitutional analysis, than I’d be teaching the Con Law class instead of taking it.

    In the end it is always a “means v. ends” debate: a constant comparison between two things:(1)The value of the social result AND (2)The cost of waiting for other (more academically honest) means.

    On top of that, the rationalization must include the negative cultural cost that must be bore when using the less legitimate means. Example: Did some of the most controversial race-related decisions ultimately retard improvement of U.S. race relations? (mandatory busing)

    I have no answer. Substantive due process isn’t going away, but as you mention that the logic behind it is fluffy at best. I’m much more comfortable with Equal Protection analyses, but the Equal Protection/Due Process split has been so convoluted by the courts as to be made nearly moot.

    On a related note, this tension has existed for as long as the republic has existed. And it’s undeniable that court opinions (even if academically illegitimate) have shaped cultural/legislative minds. So lately I just concede that unnecessary court interference has simply become a part of the system as we know it. A court that functions entirely based on an idealistic approach (a la Justice Thomas) would seem quite out of place. I’m a muddy pragmatist who tries to weigh the overall costs in each particular situation. I’ve given up on consistency and ideology.

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