Gay marriage?

...The majority opinion calls attention to the difference between the affirmative language of "common benefit"and the "equal protection" language of the Fourteenth Amendment of the U.S...

...The Declaration uses an interesting approach to show that affirmations used by one church tradition are not denials of the other church's teaching...

...Whether one would encompass this protection under the label of "marriage"or under some category such as "domestic partnership"was not best decided by judicial fiat...

...Marriage" is a statutory establishment of one sort of "couple" entitled to certain benefits...

...Common confession on this topic and the other related topics is so basic that the remaining differences "are no longer the occasion for doctrinal condemnations...

...When Vermont law specifies that the town clerk may issue a license to either Margaret O'Gara is a Roman Catholic professor of theology at the Faculty of Theology in the University of Saint Michael's College, Toronto, a member of the Lutheran-Roman Catholic International Commission on Unity, and the author of The Ecumenical Gift Exchange (Liturgical Press, 1998...

...It recalls the common biblical and liturgical heritage that allows Roman Catholics as well as Lutherans "together" to "understand the Christian as simul iustus et peccator (at the same time righteous and sinner...

...The choice of statutory language, "marriage" or "domestic partnership," was left to the proper statutory authority, the State Legislature...

...He lives in Vermont...

...In the latter case, one seeks remedy against denial and discrimination...

...No, says the Declaration, since "we confess together that sinners are justified by faith in the saving action of God in Christ....Such a faith is active in love and thus the Christian cannot and should not remain without works...

...Given the positive thrust of the common-benefits language, it was not difficult for the court to conclude that gay couples should have the common benefits of "couples," as the constitution reads, "common benefits...are not for the particutar...advantage of any single man, family, or set of men...

...Associate Justice Denise Johnson dissented from the majority opinion on the ground that the court should have reached its own conclusion on the issue of "marriage" and granted injunctive relief to the plaintiffs...

...Justice Amestoy then offers some historical background to establish the spirit embedded in the Vermont Constitution...

...Gay advocates were gratified by the recognition of equal benefits but vowed to press for recognition of gay marriage...

...Commonweal 9 January 14, 2000 the "bride"or "groom" it is clear that the legislature had gender in mind...

...I believe that the majority opinion, written by the Chief Justice Jeffrey L. Amestoy, is a model of judicial prudence worthy of national attention...

...This official "Annex" was issued in response to complaints about the Declaration from some German Lutheran theologians and from an earlier Vatican "Clarifications...

...Courts do best by proceeding in a way that is catalytic rather than preclusive and that is closely attuned to the fact that courts are participants in the system of democratic deliberation...

...The court noted that legally defined "domestic partnership" or "registered partnership"could instantiate the common benefits provisions...

...The Vermont Constitution was "the most radical constitution of the revolution...

...But the focus of the Joint Declaration is on the present and the future...

...In fact, I believe that the law should move beyond homosexual or heterosexual "partnerships...

...Johnson argued that the Court had "abdicated its constitutional duty to decide...

...This powerful movement for "social equivalence" was, as historians have characterized it, "the revolution inside the revolution...

...A small additional clarifying statement, called the "Annex" and linked to the signing ceremony, makes even a further point...

...Chief Justice Amestoy spent considerable effort in his opinion to counter his colleague's dissent: "[T]he dissenting opinion confuses decisiveness with wisdom and judicial authority with finality....No court has ever been more decisive than the United States Supreme Court in Dred Scott...

...Having rejected any claim to marriage under Vermont statutes, the court then turned to the constitutional question...

...So, it explains, when Lutherans call the justified "sinners" and their continuing opposition to God "truly sin," still "they do not deny that, despite this sin, they are not separated from God...

...He notes that the American Revolution was not only a protest against British rule, it was also an internal protest against any "entrenched clique favored by birth or social connections...

...Constitution...

...But whatever in the justified precedes or follows the free gift of faith is neither the basis of justification nor merits it...

...Judicial answers may be wrong...

...This point was elegantly detailed in the chief justice's opinion...

...Vermont may have the most revolutionary constitution in the land...

...Plaintiffs argued that refusal to grant a marriage license violated their right to "common benefit and protection of the law guaranteed by Chapter I, article 7 of the Vermont Constitution...

...Why should access to "common benefits" be based on a putative sexual connection...

...Will such a Solomonic slice across the gay-marriage issue become a national precedent...

...The court rejected the claim of the gay plaintiffs that denying them a marriage license was a violation of Vermont law...

...It need not be the only possible designation...

...The agreement clears the air and the deck for joint evangelization about God's graciousness...

...It is certainly not the only repository of wisdom...

...The Vermont Constitution dates from 1777 when Vermont was an independent republic...

...Dennis O'Brien is president emeritus of the University of Rochester...

...The Declaration is respectful of the condemnations from the past...

...Whether the law can or should deal with such "spiritual" concerns is doubtful...

...Gay marriage in the eyes of its advocates presumably would express moral or cultural parity with traditional heterosexual marriage...

...Vermont must decide n December 21, 1999, the eve of the shortest day of the year, the Vermont Supreme Court handed down a ruling on the vexed matter of "gay marriage...

...What would have been the outcome of the abortion debate had the U.S...

...Because the partners have experienced the "necessary purification of past memories" called for by Pope John Paul II in Ut unum sint, they now see each other in a new light...

...In short, making one point does not necessarily mean denying another, says the Declaration again and again as it considers issues that have historically been sources of division...

...The ruling has been hailed and condemned by both sides of the gay-marriage issue...

...Dennis O'Brien GAY MARRIAGE...

...Denying access to a civil marriage license excludes couples from an array of legal benefits "incident to the marital relation": access to spouse's medical, life, and disability insurance, etc...

...On the basis of this "Common Benefit" clause in the Vermont Constitution, the court ruled that gay couples were entitled to the benefits "incident on the marital relation...

...Legislation to affirm these entitlements was left to the Vermont legislature...

...The court stopped short of specifying the statutory language which would authorize specific kinds of "couples" ("sets of men") for a share in common benefits...

...The Vermont fundamental law has a cast not reflected in the U.S...

...Personally, I think that the "domestic partnership" suggestion is appropriate...

...They may be counterproductive even if they are right...

...Where does the Vermont ruling leave the national debate on gay marriage...

...The "Annex" allowed the churches to reach back into shared ancient faith foundations that precede the more recent divisions of the last five centuries...

...Two brothers or sisters, same- or opposite-sex couples who nonsexually enjoyed one another's companionship might well desire to act as domestic partners and accrue the appropriate benefits...

...The "Common Benefits"provision contains striking language: "[G]overnment is, or ought to be, instituted for the common benefit, protection, and security of the people...and not for the particular emolument or advantage of any single man, family, or set of men...

...When a democracy is in moral flux, courts may not have the best or the final answers...

...as applied in this case, it may offer wisdom even for the sexual revolution...

...The Catholic bishop of Burlington, Kenneth Angell, regretted the ruling but took comfort in the fact that the court had not legalized gay marriage...

...The court offered the proviso that if the Legislature fails to incorporate the intent of the Vermont Constitution into statute, the gay plaintiffs could return to the court for relief...

...Perhaps, but one should recognize that it stems from the unique character of the Vermont Constitution...

...Nor more wrong....[I]t was a profound understanding of law and the 'unruliness of the human condition' that prompted Abraham Lincoln to respond that the Court does not issue Holy Writ....[J]udical authority is not ultimate authority...

...Constitution...

...The plaintiffs argued that the purpose of marriage was to "protect and encourage the union of committed couples...

...Rather, the evidence demonstrates a clear legislative assumption that marriage under our statutory scheme consists of a union between a man and a woman...

...It is far from clear that limiting marriage to opposite-sex couples violates the Legislature's "intent and spirit...

...But Roman Catholics, while naming the inclination toward sin in justified people "concupiscence," not sin, still "do not thereby deny that this inclination does not correspond to God's original design for humanity and that it is objectively in contradiction to God and remains one's enemy in lifelong struggle...

...in the Vermont case one envisages a positive mandate of government to provide common benefits...

...Whether that ruling will cast as short a light on this issue as the winter solstice remains to be seen...

...The court rejected that broad construction of "marriage...

...In an achievementbased society like ours, the proclamation of God's gracious mercy will be even better news now that Lutherans and Roman Catholics can avoid condemning each other to proclaim it...

...In the final paragraphs, the chief justice notes wistfully that in seeking marriage status, gay couples may (given divorce statistics) be expressing the triumph of "hope over experience...

...The chief justice began his opinion by noting that by common definition (Webster's Dictionary) "marriage" is the union of one man and one woman as man and wife...

...Nothing is taken away from their "seriousness," it says, and they remain for both churches today "salutary warnings...

...Commonweal | 0 January 14, 2000...

...Supreme Court operated under such a caveat, understanding the Court as a catalyst and participant in democratic deliberation along with the legislative bodies...

...On the other hand, it granted that same-sex couples were entitled to all the civil benefits extended to married households...