Ballot questions are quite different. It is easy to stir the masses, and frankly the public at large is nonplussed by the “separate but equal” argument made by marriage advocates. Trying to equate a difference in terminology with a substantive evil made possibly by racist laws diminishes the latter. Refusal to grant the same rights to same-sex couples is wrong; however calling their legal contract, which is what marriage is, something different in no way diminishes the force and effect of that contract. One cannot say if this whole process goes on the mind of a voter, but certainly pieces of it might.

Consider what happened in California. Same-sex marriage came, none too surprisingly, by way of the California Supreme Court. A ballot initiative was already underway. A court ruling, instead of a legislative avenue, made people upset. Courts are to interpret law, not create it. Add onto that same-sex marriage supporters like San Francisco Mayor Gavin Newsom (who is actually a good guy and would make a good gubernatorial candidate) who said same-sex marriage was coming “whether you like it or not.” There was some fear-baiting going on, too, which was uncalled for. Either way, the amendment to the California Constitution passed in no small part to the public’s indifference to the “separate but equal” argument.

If the separate, but equal mindset must prevail, then marriage must be reevaluated. It is and will be impossible to divorce–pun intended– marriage from its religious roots. Although some churches have agreed to bless same-sex unions, do not expect this to happen en masse ANY time soon. Therefore, if all everybody is getting excited about is words, maybe the word we used to describe the union of two people should be reconsidered in a legal context.

All these arguments aside, Vermont’s same-sex marriage bill is the best way to institute these changes. Although the world has not ended in Massachusetts, nor will it in Connecticut or Iowa, these victories were achieved by judicial fiat. Certainly in Massachusetts, this is the case, where the Supreme Judicial Court substituted its own feelings for the law. The Late Justice Martha Sosman, who dissented in Goodridge V. Board of Health worried that it was a dangerous precedent for the Court to fit the law to its agenda. Sosman, who was mocked in the majority ruling for being behind the times, was a liberal-minded justice whose dissent shocked many in the legal and gay communities.

Not knowing the full legal basis in the California, Connecticut, or Iowa rulings it is hard to dissect those decisions. What is probable and would be a worse precedent than anything done by the courts so far, would be overturning Proposition 8’s passage in California. The proponents of the amendment, as stated, did some awful things to get the public to vote for it–and they did. Prop 8 opponents are claiming the amendment was a revision, which must pass through the California Legislature before it can go to the voters, something that would not happen. As such opponents call for it to be stricken down. They also claim that no ruling has ever removed rights from a group, an argument meant to grant a moral imperative, but does attempt to bolster the revision versus amendment position. However, should the court invalidate the amendment, the result would send a chill down democracy’s spine. The electorate does not always make the best or even right decision and is prone to demagoguery; nonetheless its wisdom CANNOT be substituted for the wisdom of the courts. Waiting until the next election and overturning the amendment is the best way to correct whatever wrongs or evils inherent in Prop 8’s passage.

Whether the amendment stands or not, it would be foolish and wrong to invalidate the already performed marriages. The amendment was not written retroactively and undoing them could be likened to ex post facto laws. Ex Post Facto refers to laws meant to criminalize an act that was not illegal when it happened, and is prohibited by the US constitution.

Such a move would also grant it public ascension, strengthening the minority’s rights. Whether we want to think of it this way or not civil rights and women’s rights were ultimately gained through the democratic legislative process. Some might argue that we do not need to go through that process because of the gains made in both of those movements. However, racism, sexism, and homophobia are not the same things. Hate is hate. Discrimination is discrimination. However, all discrimination, however equally wrong, is not equal, ironically enough.

Back to Vermont. one should not be surprised to see some heads roll come the next election, but overturning the law now is unlikely. Vermont has always been a little off-beat with its socialist Congressman turned Senator. Whatever its politics and culture may be, they have shown us that democracy still does work. You may disagree about same-sex marriage; however opposition to or support of it is like being on opposite sides of a tax increase.

Gays and Lesbians deserve to be happy. However, happiness cannot be defined by a piece of paper. Marriage includes a number of legal rights and responsibilities, but it is really about the two people. What they make of their lives makes the union, not what the government calls it.

*Vermont State House photo and Prop 8 protest photo in Sacramento both from wikipedia