More good news: Vermont legislates same-sex marriage!

Marriage is now legal, regardless of gender, in four states in the US: Massachusetts, Connecticut and Iowa courts ruled that their state constitutions guaranteed equal protection and access to marriage for same-sex partners, and Vermont just enacted legislation that expressly permits marriage for same-sex partners.

In California the courts had also ruled that the state constitution guaranteed access to marriage for same-sex partners and for about half a year such marriages were legally performed. Then the people voted to amend the state's constitution to expressly prohibit same-sex marriage.

Judicial and legislative processes are generally better suited for protecting minority rights than are popular votes. This isn't to say that the courts and the legislatures always get it right. First of all they are often on opposite sides of the same issue (witness the judicial processes that overturn unconstitutional legislation). Second of all, most legislatures have taken an approach quite different to Vermont's: they've used the legislative process to exclude couples from marriage where legislators in Vermont used their power to expand access to marriage.

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And of course at the federal level a legislative process is what produced the anti-equality "Defense of Marriage Act." Courts have generally done better than legislatures, but the Vermont story offers reason to have faith in legislatures also. The initial vote on the legislation in the VT House was 95-52. The governor had promised a veto, and a veto override would require 100 in the House. It wasn't clear that could be done. Yet, enough legislators who initially opposed the bill voted to support the body's majority that they did in fact override the Governor's veto and enacted a law to protect minority rights.

I'm not ready yet to get overly excited and predict that more and more states will fall into line on this. Nor am I optimistic about the chances of change at the federal level any time soon. But, I do think it's time to be a little bit hopeful. We now have two mostly urban/suburban and two mostly rural states with equal marriage protections. Some jurisdictions are recognizing marriages performed legally in other jurisdictions (New York requires government agencies to recognize such marriages and as of an overwhelming vote today, so does Washington D.C.). 

How many states will it take before the complications experienced by couples moving from one state to another and losing their marriage protections creates a viable challenge to the "Defense of Marriage Act"? How long will it take before we can argue that, as with race, gender should not be a factor in determining marriage partners? The arguments against allowing same-sex couples to marry simply don't hold. "Marriage is for reproduction?" We don't require marriage partners to take fertility tests to make sure they can reproduce before allowing them to make a legal commitment. "Churches are afraid that they'll have to marry same-sex couples?" Civil law neither prohibits marriage between people of different religious backgrounds, nor does it require religious organizations to perform or recognize those marriages if they would be counter to the group's beliefs or doctrines. Civil marriage law does not dictate religious marriage rules. Arguments against same-sex marriage can only have one purpose, and that is to continue the heterosexist system of privilege that supports all kinds of sex- and gender-related discrimination.    

Yet these religious arguments are given a great deal of weight in the politics of marriage. Listening to the roll call vote in Vermont's House of Representatives today I was struck by the comments of a representative whose name I regret I did not record. He spoke about religious intolerance, but also about intolerance aimed at religion, and it made me recall what a religious nation this is. We need the separation of church and state to be real to protect religion for people of faith, just as we need it to protect us from government based on faith.

Given the civil rights protections against gender-based discrimination, and having dismissed these other spurious arguments against same-sex marriage, it is incredibly difficult to understand how we as a nation can still be protecting discrimination in marriage law. 

It is time for a clear-headed national shift, recognizing civil marriage that does not discriminate based on nationality, race, ethnicity, gender, religion, or ability. Religious institutions can continue to govern themselves as they see fit, but civil marriage needs to be open to all.