Gay Marriage in Vermont: Three Progressive Lessons

The Vermont legislature recently overrode Governor Douglas's veto and added Vermont to the list of states that have legalized gay marriage. This was a momentous occasion for supporters of equal rights. However, as we celebrate, progressives should recognize three larger lessons from Vermont's experience.

First, federalism can be progressive. For too long, federalism, the Madisonian concept of shared power between state and federal government, has been an idea monopolized by conservatives. Conservatives have trumpeted the cause of federalism on issues ranging from gun control to abortion. The conservative legal umbrella organization is named the Federalist Society.

But federalism should play a critical role in progressive strategy. Justice Brandeis famously declared that "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (New State Ice Co. v. Liebmann, 285 U.S. 262). States can act independently and thereby implement progressive policies which lack national consensus. For instance, both Massachusetts and Connecticut have gay marriage (by judicial decision). Their experiences likely provided critical support to Vermont's legislature and to New York's Governor Paterson for his recently introduced legislation.

Second, legislatures enforce rights too. For a long time, the equal rights movement has focused on vindicating rights through courts, largely to the neglect of the legislatures. While the courts can play an important role in enunciating principles (most famously in Brown v. Board of Education), legislatures often do the nitty-gritty of actually crafting the language which enacts policy (for example, the Civil Rights Act and Title IX).

Moreover, judicial decisions are more secure when they are ratified by legislative action. While courts have played a pivotal role in furthering the cause of gay marriage, legislatures are critical to the future debate. Progressives should also remember that legislatures can overturn judicial constructions of statutes, as most recently exemplified by the Lily Ledbetter Fair Pay Act of 2009, and legislatures are often faster and more effective than judicial action.

Third, blocking and tackling counts. Gay marriage was abolished in statewide vote in California by a margin of less than 5%. In Vermont, the legislature's veto override hung on the thread of a single vote in the Vermont House, after failing to achieve the requisite 2/3 on the first go-around. One Representative who switched to vote in favor of the override cited phone calls from 228 of his constituents as the critical factor in his decision.

Politics, like baseball, is often a game of inches. Individuals can make a difference. Getting people to the polls and on the phones can be the critical difference between victory and defeat.