"The extension of the Common Benefits Clause to acknowledge
plaintiffs as Vermonters who seek nothing more, nor less, than legal protection
and security for their avowed commitment to an intimate and lasting human
relationship is simply, when all is said and done, a recognition of our common
humanity." Chief Justice Jeffrey L. Amestoy, Vermont Supreme Court.
Uphold the decision by Chittenden Superior Court Judge Linda Levitt, and dismiss the
Send the case back to a lower court for a second trial.
Rule in favor of equal rights for same-sex couples.
They voted unanimously to chose the third route: to require the Vermont legislature to pass
legislation that would either:
Widen the laws regarding marriage to end special rights for heterosexuals
and allow homosexuals to marry.
Create a new category, perhaps called a "domestic partnership,"
that would allow gays and lesbians to register their relationship and
receive the same rights and privileges as are currently enjoyed only by
heterosexual couples. This option would bring Vermont into line with
the policies at the time of several countries in Europe, and both British Columbia and Ontario in
Canada. 1 (Canada later
allowed same-sex couples to marry).
The court ruling, issued on 2000-DEC-20, said, in part:
Granting equal rights to gays and lesbians
"arouses deeply-felt religious, moral, and political beliefs...The
issue before the Court, moreover, does not turn on the religious or moral
debate over intimate same-sex relationships, but rather on the statutory and
constitutional basis for the exclusion of same-sex couples from the secular
benefits and protections offered married couples."
"We hold that the state is
constitutionally required to extend to same-sex couples the common benefits and
protections that flow from marriage under Vermont law. Whether this ultimately
takes the form of inclusion within the marriage laws themselves or a parallel
'domestic partnership' system or some equivalent statutory alternative rests
with the legislature." 2
Associate Justice Denise R. Johnson wrote a separate motion, stating that the
Court should have gone further by immediately allowing lesbian and gay couples
to marry. 3
"The court retained jurisdiction in the case, meaning if the
Legislature does not provide a remedy that respects the court's ruling, the
justices have the power to do it themselves."4
The couples that brought the original case claim that
the state grants over 300 benefits to married couples. The U.S. General
Accounting Office counted 1,049 at the federal
government level. According to the court decision, these
"... access to a spouse's medical, life, and disability
insurance, hospital visitation and other medical decision making privileges,
spousal support, intestate succession, homestead protections, and many other
The full text of the Supreme Court's decision is available online. 5
A number of groups and individuals responded quickly to the court decision,
in fairly predictable ways:
Evan Wolfson, spokesperson for the Lambda legal Defense and Education
Fund, a gay rights organization,stated: "This is a
glorious day. Vermont's highest court has ordered an end to unequal
treatment of lesbian and gay families."
James Dobson, president of Focus on the Family, a Fundamentalist
Christian group, said that the court's decision "violates common
sense and the entire course of Western civilization." He suggested
that the legislature immediately begin the process of changing the state
Jennifer Levi, spokesperson for Gay & Lesbian Advocates &
Defenders, a gay rights organization of lawyers,said: "We
are thrilled with this decision. It's a tremendous victory. This is the
first court to say that the full range of benefits and protections must be
extended to same-sex couples."
Jay Sekulow of the American Center for Law and Justice, a
Fundamentalist Christian organization, said that the decision "represents
a slap in the face for marriage between a man and a woman..."This is
the first appellate court that has said there is a state constitutional
right for same-sex marriage."
Mary Bonauto, one of the lawyers arguing the case on behalf of the
plaintiffs, said that the ruling is "a legal and cultural milestone."
Richard Land, president of the Southern Baptist Convention's Ethics
& Religious Liberty Commission commented:
"Do the people of
Vermont want to be the one state in the country that gives this
semi-official status to same-sex relationships? If they do, all they have to
do is to acquiesce to their state supreme court's dictum. If not, then they
need to insist that their elected representatives begin the process of
amending the state constitution to render the Supreme Court's decision null
and void." 6
Holly Puterbaugh and Lois Farnham, one of the plaintiff couples said:
"We celebrated our 27th anniversary together in  October. We
look forward to the time when we can finally make it official."
Alan Sears, president of the evangelical Christian Alliance Defense
Fund said "On a scale of 1 to 10 with 10 being the worst, I
label this case a 7 or 8." 6
The Vermont Freedom to Marry Task Force issued a press
release on 1999-DEC-20. 7 In it, Attorney
Deborah Lashman commented:
'My partner and I have raised our sons
together from birth. We're thrilled that the Court has removed the
stigma of second-class citizenship on our family. The only logical
route for the legislature from here is to do the same. Anything short
of marriage,‚ domestic partnership laws, for example ‚ evokes the
old idea of separate but equal, which history shows is anything but
Referring to Vermont's distinction as the first state to
prohibit slavery in 1777, Task Force volunteer Chris Tebbetts noted:
"Once again Vermont affirms that all citizens are entitled
to equality under the law." 8
On 2000-JAN-3, Evangelical Christian and Republican party presidential
candidate Gary Bauer said "I think what the Vermont Supreme Court did last week
was in some ways worse than terrorism.''
William Donohue, president of the Catholic League for Religious and Civil
"In the eyes of the Vermont Supreme Court, the faithful
must pay for homosexuals to get the same benefits as a married couple, even
though doing so means having to subsidize expressly immoral behavior that
compromises their sincerely held religious beliefs." 9
Reaction by Vermont officials was mixed:
Governor Howard Dean, said that same-sex marriage "makes me
uncomfortable, the same as anybody else." He predicted,
correctly, that the
Vermont legislature would take the "domestic partnership"
The Lieutenant-Governor, Douglas Racine, favors same-sex marriage.
The Speaker of the House, Michael J. Obuchowski, also favors same-sex marriage.
Vermont cannot appeal the Vermont Supreme Court's decision to the U.S. Supreme Court. That is because this case
only effects state law. The plaintiffs appear to have based their case on the Vermont
Constitution, not the U.S. Constitution. The U.S. Supreme Court would not have
jurisdiction to hear an appeal. They could only get involved if the case
presented a question of federal law.
An amendment could be made to the Vermont constitution which specifically restricted
marriage to persons of the opposite gender. But this could not be voted upon by the
citizens of Vermont for two years. Josh Fitzhugh, a Vermont attorney, commented: "In
Vermont, the only way you can change our constitution is by the legislature, two
separately selected legislatures to vote in favor of a constitutional amendment, and if
that amendment is approved by two separate legislatures only then does it go to the people
for an election. 9 By that time, the voters would have
experienced over 2 years of same-sex marriages and realize that the sky did not fall in. The
voters might easily defeat the amendment.
When the legislature passes a law which implements either of the two options assigned to it by the
court, many gays and
lesbians will probably travel to Vermont to marry or register, and then return to their own states and ask that
their marriages or relationships be recognized. A similar process happened earlier in the century when
mixed-race couples married in Northern states and then returned to the South, only to find
that they had to sue their states in an attempt to have their marriages recognized. We
expect that the same sequence would follow in this case.
[Author's note: We find the reaction of the Vermont
governor to be strange. He said that the concept of same-sex marriage "makes
me uncomfortable, the same as anybody else." His opinion is clearly
wrong. The vast majority of homosexuals and a strong minority of heterosexuals
in the state feel quite comfortable with the idea. Perhaps he regards
homosexuals and bisexuals as second-class citizens. That seems to be a violation of his oath of office, which
involves a promise to treat all citizens of Vermont equally.]
In early 2000-JAN, radio personality "Dr. Laura"
urged her millions of listeners to flood the Vermont Legislative Council and the
Governor's office with faxes and phone calls in order to express their dislike
of the court ruling.