Bench Memos

Leveraged Democracy

As Ramesh points out on The Corner, Vermont has now adopted same-sex marriage, but has done so democratically, with the legislature’s override of the governor’s veto of a bill.  This is how things ought to be done in a democracy, as I argue at The Public Discourse today.  But let’s not forget that the history of Vermont’s struggle over this issue goes back ten years, to the state supreme court’s decision in Baker v. Vermont, when the judges illegitimately instructed the legislature to choose between full-fledged marriage or civil unions with all the essential privileges of marriage.  The legislature back then chose the latter, people in Vermont got used to the phenomenon of gay couples “all but married,” and with that as the new starting point, the argument became compelling to enough Vermonters (or at least to enough of their legislators) that the final step to marriage seemed only just.

Would same-sex marriage have arrived in Vermont in 2009 without the state supreme court forcing the issue in 1999?  It’s impossible to be certain, but I think probably not.  So this is still, in part, a story of the leverage that judicial usurpation can produce in generating social change that legitimate representation of the people would continue to resist.

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