NATIONAL NEWS

Did Dean oppose Vermont civil unions?
Activists recall former governor fought marriage ‘tooth and nail’

By LOU CHIBBARO JR.
Friday, January 23, 2004

Gay Democrats were among the earliest and most active supporters behind the fledgling candidacy of former Vermont Gov. Howard Dean, raising much of the early money behind his longshot presidential bid. Much of that enthusiasm stemmed from Dean’s decision to back his state’s landmark civil union legislation, the most expansive recognition ever for same-sex couples in the United States.

But gay leaders from Vermont say they have a somewhat less rosy recollection of Dean’s role in the debate over whether the state would adopt civil unions or full-fledged marriage, after the question was was forced upon the state’s elected representatives by the Vermont Supreme Court in December 1999.

Dean himself has said he felt “awkward” at the time about the issue of gay marriage, and was unsure of how gays would react to his role in the raucous debate over the issue in Vermont.

State Rep. Bill Lipert of Vermont, a gay Democrat, said remembers accompanying then-Gov. Dean to a gathering of several hundred gay delegates and gay rights activists at the Democratic National Convention in Los Angeles in August 2000.

Dean came to the convention just over three months after he signed the historic Vermont civil union law. His appearance also came eight months after the Vermont Supreme Court handed down its landmark ruling ordering the state to legalize same-sex marriage or provide gay couples with all of the rights, benefits and obligations associated with marriage.

Although many Vermont gay activists praised Dean for lobbying hard for the civil unions law, others faulted him for pushing the legislature into passing a civil unions bill rather than a full, same-sex marriage bill. The marriage route was the clear choice of gay rights attorneys and the three gay couples who filed the lawsuit in 1997 that led to the Vermont court ruling in December 1999.

So Dean, with the thought of a possible run for the presidency in 2004, approached the gathering of gay participants at the 2000 Democratic National Convention with uncertainty, not knowing how the gay establishment would receive him, according to Lipert and others familiar with Dean.

When he entered a Los Angeles hotel meeting hall where the gathering was held, the gay delegates and activists leapt to their feet and greeted Dean with prolonged applause. Dean received a similarly rousing reception at other gay events associated with the 2000 convention, including an event at the Los Angeles Gay & Lesbian Community Center.

“He was stunned,” Lipert said. “I don’t think Gov. Dean had any sense at all at that time of the support he would receive in the gay community until he attended the Democratic convention.”

The warm relations Dean forged with gay Democrats at the 2000 convention provided a springboard for his gay support in the 2004 presidential campaign. The Washington Post reported this month that gay Democrats organized all but one of Dean’s fund-raisers outside of Vermont in 2002 and the first quarter of 2003.

The early gay financial support helped Dean launch an unprecedented fund-raising effort that has surprised the nation’s political establishment, and vaulted Dean to frontrunner status early in the campaign. Earlier this week, Dean finished a distant third in the Iowa caucuses despite a “rainbow army” of gay volunteers who descended on the state to help get out the vote.

But some gay activists — including gays supporting Dean’s rival Democratic presidential candidates — have said the perception by many gays of Dean’s role in the Vermont civil unions saga has taken a larger-than-life, even mythical image, which they say is at odds with the facts.

Critics say Dean, while supporting gay rights in general, declined to take a position on the pending Vermont court case, known as Baker vs. Vermont. He expressed great discomfort over gay marriage and he did not move in the direction of civil unions until he was forced to respond to the ruling by the Vermont Supreme Court, his critics say.

Dean’s gay supporters dispute this assessment, saying Dean acted cautiously because the public was deeply divided over the contentious issue, and he hoped to build a consensus for civil unions. They say he put his political career in jeopardy in his steadfast backing of the civil unions bill, which was met with fierce opposition.

When the legislature passed the civil unions bill in April 2000, Dean signed the measure the following day in the privacy of his office, with no press allowed to witness the event. Dean rejected claims by critics that he shunned a public bill-signing ceremony because he wanted to shield himself from television coverage that his Republican opponent could use in the upcoming election. He said he wanted to avoid the appearance of “triumphalism” at a time when more than half of the state’s voters opposed the bill.

Dean’s critics and supporters in Vermont, both gay and straight, each point to various developments surrounding the civil union battle to support their case on whether Dean did the right thing.

Marriage lawsuit filed in ’97
The civil unions saga began in Vermont on July 22, 1997, when three same-sex couples filed suit in the Chittenden, Vt., Superior Court seeking the right to marry. The couples — Stan Baker and Peter Harrigan, Nina Beck and Stacy Jolles, and Lois Farnham and Holly Puterbaugh — sued the state of Vermont and their three hometowns after clerks refused to issue them marriage licenses. The case became known as Baker vs. Vermont.

“The refusal to allow our clients to marry violates both state marriage laws and the state constitution, which require that all citizens and families have the same access to the legal protections and obligations of civil marriage,” read a statement issued by the plaintiffs’ two attorneys, Beth Robinson and Susan Murray.

During the week the suit was filed, Dean declined to answer questions from the press about the merits of the case, according to the Rutland, Vt., Daily Herald. He called the issue of same-sex marriage “a very difficult, value-laden decision.”

Later that week, Dean said he would withhold any comment on the case until, as expected, the Vermont Supreme Court ultimately ruled on the matter.

But Vermont Attorney General William Sorrell, whom Dean appointed to fill a vacancy, immediately denounced the suit, arguing that the state legislature, not the courts, should decide the issue of gay marriage. Sorrell’s comment prompted reporters to once again ask Dean if he would support a same-sex marriage bill. Again, Dean declined comment.

“Dean said he saw no purpose that would be served by voicing his opinion on the issue while it was still before the courts,” reported the Rutland Daily Herald in a story published July 24, 1997. Dean said he was concerned that a comment by him might influence the court’s decision, the newspaper reported.

Lawyers urged Dean silence
As Vermont’s only openly gay state representative, Lipert played a pivotal role in crafting the civil unions bill in 2000. He told the Blade this month that he understood the attorneys for the Vermont marriage plaintiffs had urged Dean not to comment while the case was before the courts.

Attorney Beth Robinson confirmed Lipert’s recollection, saying the legal team knew Dean was uncomfortable with gay marriage and felt it would be best if he waited for a decision before speaking out on the subject.

Four months later, in November 1997, Sorrell filed the state’s first legal brief opposing the suit on behalf of the state attorney general’s office. The brief, among other things, argued that child rearing was closely tied to marriage and that same-sex partners could not produce children without a third party.

“Vermont affords marriage to opposite-sex couples, in part, because of the biological differences between the sexes that are necessary to propagate the species,” the Burlington Free Press quoted the brief as stating.

The brief said the state’s ban on same-sex marriage was justified by several “state interests,” including promoting the union between men and women, promoting child-rearing with both male and female role models, and ensuring marriages in Vermont are recognized in other states, the Free Press reported.

Lipert, appointed by Dean to fill a vacant seat in the state House, points out that the Vermont attorney general is an elected, “constitutional officer,” completely independent from the governor. The fact that Dean appointed Sorrell to fill a vacancy was coincidental to the marriage issue.

Sorrell was acting as the state’s legal representative, with the obligation to defend state laws, Dean supporters argued.

The attorney general’s court briefs were overshadowed in December 1999, when the Vermont Supreme Court handed down its landmark ruling. The court sided with the gay couples that the Vermont Constitution required the state to grant them the full rights and privileges of marriage — equal to those granted to heterosexual couples through the state’s marriage law.

But the Vermont court left the final implementation of its ruling to the state’s legislature, making it clear that lawmakers could either go the route of full marriage or a parallel institution equivalent to marriage, such as domestic partnership. The term “civil union” had yet to be invented at the time the court handed down its decision.

Activists caught off guard by court’s ruling
Robinson said backers of gay marriage were prepared to respond to a decision turning down same-sex marriage and a decision ordering the state to immediately issue marriage licenses to gay couples, but they were caught “completely off guard” by the court’s decision to turn the matter over to the Legislature.

To the dismay of many of the state’s elected officials, the court ruling placed what a contentious and volatile issue ever into the laps of the state’s elected officials in the very year that all of them — members of the Legislature and Dean — were up for re-election.

In a press conference on the day the decision came down, Dean finally revealed his hand, saying he wanted the state to pass a domestic partner-type bill, not a gay marriage law, to meet the requirements of the court decision.

“It’s in the best interest of all Vermonters, gay and straight, to go forward with the domestic partnership act and not the gay marriage act,” the Rutland Herald quoted him as saying. “And that’s what I intend to do.”

Dean added that he was certain the Legislature would never pass a gay marriage bill, the Herald reported.

In his newly released book, “Civil Wars: A Battle for Gay Marriage,” the Rutland Herald’s editorial page editor David Moats recounted that Dean had earlier made one of his famously frank remarks, this time on gay marriage.

“It makes me uncomfortable,” Moats quoted Dean as saying, “the same as anyone else.”

Moats, whose editorials on the civil union controversy won him a Pulitzer Prize, said in a telephone interview this month that Dean acted courageously by becoming a staunch advocate of the civil unions bill once the issue entered the legislative arena. But he acknowledged that Dean’s decision to back the civil unions route rather than full marriage created a rift between Dean and many gay Vermonters who wanted to accept nothing short of marriage.

Dean, like many in Vermont, believed the overwhelming majority of people in the state opposed gay marriage, and thought the Legislature would never pass a gay marriage bill, Moats said.

Dean supporters argued that the governor’s assessment was confirmed in March 2000, three months after the court ruling, when voters in 50 town meetings throughout the state — in a time-honored New England tradition of grass-roots democracy — voted against gay marriage. Only a handful of towns supported a domestic partnership law, the forerunner of a civil unions measure, the Rutland Herald reported. Although the town meeting votes were non-binding, they were considered to have considerable influence on state legislators.

Bill Lipert was the only openly gay representative in Vermont during the debate over gay marriage vs. civil unions. He eventually decided to support civil unions because he didn’t think the Legislature would support gay marriage. (Photo by Linda Hollingdale)

With Dean lobbying behind the scenes for the civil unions solution, Lipert and his fellow state legislators began deliberations over which route to take after several highly contentious public hearings. Hundreds of Vermont citizens testified at the hearings — both for and against gay marriage. Lipert, an early advocate for a gay marriage bill, said he agreed to what he called an historic compromise in favor of a civil unions law.

Robinson and her team of gay rights lawyers, joined by the Vermont Freedom to Marry Task Force, argued that Dean and his lawmaker allies should push for a marriage bill. If the Legislature failed to pass a marriage bill, they argued, the court would most likely force the state to issue marriage licenses to same-sex couples.

Dean expressed concern that such a course of action would create too great an emotional rift among the states’ citizens, Moats wrote in his book. Dean and his allies argued that the democratically elected Legislature, rather than the court, should decide the issue.

Different views on Dean, Romney
Robinson argued that a system of constitutional democracy sometimes called for circumventing the “majority rule” principles in favor of minority rights. As the Legislature began its deliberations, Robinson noted that anti-gay forces saw little difference between a marriage bill and a civil unions bill. They were vehemently opposed to both, calling civil unions and domestic partnership nothing less than marriage in disguise, Robinson pointed out.

“Dean fought gay marriage tooth and nail,” Robinson said. “Dean took the same position that [Republican Mass. Gov.] Mitt Romney is taking now,” she said. “Yet Dean is viewed by his gay supporters as a hero while some gays say Romney is a homophobe.”

The Massachusetts Supreme Judicial Court ordering the state last November to pass within six months a law providing same-sex couples with the same rights as married couples. Some gay rights attorneys say the decision requires the Massachusetts legislature to pass a gay marriage bill, with no “wiggle room” for the legislature to adopt a civil union measure similar to Vermont.

Lipert, the only openly gay member of the Vermont Legislature at the time, said he and his colleagues agonized over the direction to take. He said they decided to side with Dean on civil unions only after concluding a marriage bill would not pass. Even if marriage could be obtained by court order, following the rejection of a marriage bill by the Legislature, Lipert said, he believed the issue was so contentious that the elected Legislature, not the court, should make the final decision.

‘Career on the line’
Lipert said Dean waged an aggressive, behind-the-scenes lobbying campaign to push through the civil unions bill. He said Dean rejected a proposal by some legislators to put the matter off for a year and to appoint a commission to study the matter, Lipert said.

“He put his political career on the line for the gay and lesbian couples and stood steadfast, fighting for his own political career afterwards,” Lipert said. “I personally think he deserves all the credit he’s getting. There’s no other governor or statewide elected official who has ever taken as equally courageous a stand for the lesbian and gay community in the country.”

Dean summed up his own views in a press conference on the day he signed the civil unions bill.

“There is much to celebrate about this bill,” Dean said. “Those celebrations, as the subject matter of this bill, will be private,” he said. “They will be celebrated by couples and their families, by people making commitments to each other.”

Added Dean, “I chose to sign this bill because I fundamentally believe it’s the right thing to do, and I also fundamentally believe that in the long run it’s the right thing for the state of Vermont and the United States of America.

“This bill enriches not just the very small percentage of gay and lesbian Vermonters who take advantage of this partnership and get the rights that the court has determined that they are due,” he said. “I believe this bill enriches all of us as we look with new eyes at a group of people who have been outcasts for many, many generations.”

Lipert said Dean held his ground in support of the bill during his re-election race over the next several months, as he came under attack from conservative Christian groups and hostile voters throughout the state. The atmosphere became so intense, following a series of death threats against Dean, that Dean was forced to wear a bulletproof vest while on the campaign stump, Lipert said.

While Dean won re-election by a close margin, 15 lawmakers who voted for the civil unions bill lost their races.

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