THE CONSTITUTION, VERMONT, AND MY INNKEEPER

When Texas governor Rick Perry suggested earlier this year that his state might consider seceding from the Union, it was greeted as the persistent echo of the Southern Confederacy. So I was surprised when, vacationing in Vermont last month, I listened to a local political activist there make his case for the Green Mountain State, of all places, seceding from the Union. As you might expect, the secessionist movement in Vermont, which has a socialist senator (Bernie Sanders) serving in Washington, is from the opposite side of the political spectrum, but as it turns out the passion for secession there is just as fervent as it is in the Lone Star State.

You can go to an interesting website to get acquainted with the cause. It's called "The Second Vermont Republic" and it says on its home page that it is committed to "(1) the peaceful breakup of meganations such as the United States, Russia, and China; (2) the political independence of breakaway states such as Quebec, Scotland, and Vermont; and (3) a strategic alliance with other small, democratic, nonviolent, affluent, socially responsible, cooperative, egalitarian, sustainable, ecofriendly nations such as Austria, Finland, Sweden, and Switzerland which share a high degree of environmental integrity and a strong sense of community."

Vermont is a beautiful state and while it is usually thought of as a bastion of liberalism, particularly with the respect to environmental issues (think former Governor Howard Dean), it has a strong conservative strain as well. In the early 2000s, "Take Back Vermont" signs were regularly seen on many front lawns across the state, a movement that referred to seizing control of the leftward drift of the state and returning it to its Republican roots. And wow, does Vermont ever have Republican roots! For 134 years, from the founding of the modern Republican party in 1854 to the election of George H. W. Bush 1988, Vermont voted for the Republican presidential candidate in all but one election, the 1964 landslide that was won by Democrat Lyndon Baines Johnson. Furthermore, for 109 years, from 1854 to 1963, Vermont had a Republican governor, a stretch that included fifty -- fifty! -- consecutive Republican chief executives. Since then the governor's office has alternated back and forth between the parties, with five Democratic governors and four Republicans occupying the chair. (While Montpelier is the capital of Vermont and the governor has offices there, there is no official "governor's mansion" and there never has been one. The present governor, Democrat Peter Shumlin, lives in a rented house.)

All of this is backdrop to the situation at the Wildflower Inn, in Lyndonville, VT where my family and I have stayed most Augusts over the past five or so years. The Inn is owned and run by Jim and Mary O'Reilly around 570 wooded acres. This is the part of Vermont that is known as the "Northeast Kingdom" and it as idyllic a spot as you can find in New England. People vacation at the inn for extended stays, and over the years it has been the site of many marriage ceremonies and receptions. The O'Reillys are an Irish Catholic family, but other than that casual observation, I have have never been subject to any political or religious message attached to their business. I still haven't, yet suddenly this summer the inn became the subject of a federal lawsuit and a vicious Internet posting campaign for its decision to deny a lesbian couple its grounds for their marriage rite. In their defense, the O'Reilly's made it clear that they have never denied same sex couples accommodations or dining nor have they discriminated on the basis of sexual orientation in their employment practices. But, due to their Catholic faith, they do not feel comfortable hosting "expressive events" which they regard to be tantamount to "compelled speech."

The words are chosen carefully as they point directly to the First Amendment and in fact the dispute here is a most assuredly a constitutional one. On the one hand, we have the lesbian couple's argument that they are being denied a service on account of their sexual orientation. They maintain this to be a violation of Vermont's Fair Housing and Public Accommodations Act and the O'Reilly's, in their response to the complaint, acknowledge that they are in breach of the statute, even though it was written long before the state recognized same sex civil unions (2000) and same sex marriage (2007). Still, they argue that the law should not apply when it would force a proprietor to host something that is contrary to his or her religious principles and that applying it is in violation of their First Amendment rights.

It is tempting to compare this to a resort in Georgia in, say, 1960, denying its grounds for a marriage ceremony because the couple was African-American. Unless, of course, you are a devout Catholic or belong to some other religious community that considers the marriage of a lesbian couple to be an affront to God. Then you would say that this is not discrimination but an expression of faith. We would not expect an obstetrician who believes that abortion is sinful must nonetheless perform them, but since the Wildflower Inn regularly hosts heterosexual marriages, the more accurate analogy here would be an obstetrician who was willing to perform abortions for some but not for others. It is interesting it all leads back to this question: is the marriage of a gay or lesbian couple somehow a different rite than the marriage of a heterosexual couple and of course that is what is at the heart of the same-sex union debate. In the case of the Wildlfower Inn in mostly liberal Vermont, the state legislature has already made it clear that this state's law now regards same sex unions as equivalent to heterosexual unions. That is good news for gay and lesbian couples looking to enjoy the ancient tradition of marriage, along with its legal and social benefits. But from the O'Reillys' point of view, if you are a Catholic businessman in Vermont, must you now also adhere to the state's definition of marriage or to look at it from the flip side, if you are a businessman who is Catholic, is it a breach of your faith, and an interruption to your "free exercise" of religion, that you are forced to facilitate and profit from a rite that your faith considers to be wrong?

Naturally, the lawsuit was Topic A among guests chatting by the pool or over dinner this summer and each now faces a moral dilemma of his or her own. The inn's clientele is mostly urban Northeasterners from the Boston or New York area and, by the most cursory observation, more likely to attach themselves to the liberal Vermont spirit than to the latent conservative one. So, for these people (myself included), the question now comes, are the guests implicitly endorsing discrimination by patronizing the inn? Or is this decision by the O'Reillys theirs to make, a private and personal choice that should not fairly be represented either implicitly or explicitly in any other transaction with their business? As guests mull those issues, the federal district court will be considering answers to the constitutional questions here When that decision is handed down, it may well set the standard for so many other states which have recently recognized same-sex unions as well.

TB