Gay marriage is once again in the news. This time, the rumblings come not from the Sandwich Islands, but the Green Mountains of Vermont. In a riding handed down right before Christmas, the state’s governing body, the Vermont Supreme Court, instructed the legislature to extend the benefits and protections of marriage to homosexual couples.

The court’s decision rested on its interpretation of the Common Benefits Clause of the Vermont Constitution. In essence, the clause declares that government is instituted for the benefit of the entire community, not for the advantage of the few. Homosexual couples argued that Vermont’s refusal to issue them marriage licenses unconstitutionally deprived them of certain statutory rights and privileges such as spousal insurance benefits, medical decision-making privileges, and intestate succession.

The court had asked whether Vermont’s prohibition of homo,sexual marriage bore a reasonable relation to the state’s interests behind the policy. Vermont advanced a number of reasons for the exclusion, including furthering the link between procreation and child-rearing, promoting child-rearing in a setting with both male and female models, and furthering the state’s general public policy against same-sex marriage. However, the court concluded that Vermont’s grounds for the policy were unreasonable.

The court littered the opinion with citations to such publications as “Lesbians Choosing Motherhood,” “Lesbian Mothers and Gay Fathers,” and “Children of the Lesbian Baby Boom.” Of course, Vermont cut its own throat through earlier legislation. For example, the court cited Vermont’s law permitting homosexual couples to adopt children, and the state’s hate-crimes law which specifically protects homosexuals. The court reasoned that “[i]n light of these express policy choices,” Vermont’s hostility towards same-sex marriage was “patently without substance.”

Considering the court’s radical interpretation of “common benefits,” one wonders how long other facets of the state’s marriage laws will stand. Surely age and consanguinity restrictions violate the Common Benefits Clause as well. And this Jacobin equality need not be limited to marriage laws. The possibilities are endless.

Surprisingly, the court declined to craft a remedy for the constitutional violation. Instead, it instructed the legislature “to consider and enact legislation consistent with the constitutional mandate” of die ruling. The court did suggest two options for its legislative lackeys: a domestic partnership law giving homosexual couples the same benefits as heterosexual couples; or a new marriage law which includes homosexuals.

If Vermont takes the latter course, there is a risk that homosexuals will travel there to marry, intending to return to their home states to demand recognition of the marriages. The United States Constitution commands that “Pull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” In determining die validity of a marriage, most states follow the rule of lex loci celebration-is—the place of the ceremony. But it is generally recognized that, if another state has a significant relationship to die spouses at die time of die marriage and upholding die marriage would violate that state’s public policy, then lex loci celebrationis need not be honored. South Carolina, for example, probably could deny recognition to a same-sex marriage if a South Carolina couple exchanged vows in Vermont and then returned to the Palmetto state. A more difficult question would arise if native Vermonters married in Vermont and then moved to South Carolina. If South Carolina had no significant contacts with die couple before the marriage, current case law would prohibit the state from refusing recognition under the public-policy exception. Congress sought to correct this problem by passing the Defense of Marriage Act (DOMA), which permits all states to deny full faith and credit to same-sex marriages, but there are some questions about DOMA’s constitutionality.

Vermont could follow Hawaii’s lead and amend its constitution to prohibit same-sex marriage. Rumor is, however, that the lieutenant governor and the speaker of the Vermont House favor a marriage law which includes homosexuals. Unfortunately, only time and extensive litigation will sort out the mess that Vermont’s Supreme Court has crafted for the Union.