Civil Unions & Same-sex marriage in Vermont

The Vermont Supreme Court decision

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Quotation:

"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.

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Ruling of the Vermont Supreme Court

The court had three options:

	Uphold the decision by Chittenden Superior Court Judge Linda Levitt, and dismiss the case.
	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 benefits include:

"... 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 statutory protections."

The full text of the Supreme Court's decision is available online. ₅

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Responses to the Vermont Supreme Court decision:

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 constitution. ₆
	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 [1999] 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 equal.'

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 Rights said:

"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" route.
	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.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

Cristopher Graff, "Vermont court backs same-sex couples," Associated Press.
"Baker v. State, 98-032," 1999-DEC-20 ruling of the Vermont Supreme Court is at http://www.lambdalegal.org/sections/library/decisions/vermont
"In dramatic first, Vermont High Court orders state to treat gay and non-gay couples equally," Lambda legal Defense and Education Fund, 1999-DEC-20, at: http://www.lambdalegal.org/cgi-bin/pages/documents/
JoAnn DiLorenzo, "A more civil union: Vermont's courtship with same-sex marriage promises to transform the gay rights movement nationwide," Valley Advocate, Hatfield MA, 2000-MAR-8. Online at: http://www.valleyadvocate.com/articles/civilunion.html
The text of the Supreme Court's ruling can be seen at: http://www.state.vt.us/
Tom Strode & Art Toalston, "Vermont high court approves benefits for same-sex couples," Baptist Press. Online at http://www.baptistpress.org/CurrentBaptistPress/story1.html
The Vermont Freedom to Marry Task Force's press release is at: http://www.vtfreetomarry.org/press_release.htm
The Vermont Freedom to Marry Task Force's press release is at: http://www.vtfreetomarry.org/press_release.htm
David Snyder, "Vermont considers gay marriage," 1999-APR-5, at: http://www.cbn.org/newsstand/stories/990405.asp