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Civil Unions & Same-sex marriage in Vermont

The Vermont Superior Court decision

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Sponsored link.


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Background:

In 1995, a group of lesbians and gays in Vermont organized the Vermont Freedom to Marry Task Force.1 This group has had two main activities:

bulletraising public awareness and concern about the denial to gays and lesbians of one of the most fundamental human rights: the right to marry
bulletcollecting signatures on the Marriage Resolution, 2 which promoted equal access to marriage for all adults.

The Vermont Freedom to Marry Task Force prepared a 17-minute informational video 3 called "The Freedom to Marry: A Green Mountain View". 22 Vermonters talk about how discrimination in marriage laws affects their friends and families.

The Lambda Legal Defense and Education has prepared a partial list of special rights, privileges and responsibilities which are available only to heterosexual couples in the US.

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The "Baker v. Vermont" case before the Chittenden Superior Court:

On 1997-JUL-22, three same-gendered couples in the state of Vermont sued the state, as well as the towns of Shelburne, South Burlington and Milton VT. Their goal is to obtain marriage licenses and to have their subsequent marriages recognized by the state. The couples were Stan Baker and Peter Harrigan (in a committed relationship for 4 years); Nina Beck and Stacy Jolles (7 year relationship; raising a family); and Lois Farnham and Holly Puterbaugh (together for 25 years; they have one daughter). The case is "Baker v. Vermont;" it was filed on 1997-JUL-22.

Their lawyers, Susan Murray and Beth Robinson from the legal firm of Langrock, Sperry & Wool in Middlebury VT stated that:

"...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...Marriage is a fundamental, individual, personal choice, which should be available to all Vermonters."

The co-counsel, Mary Bonauto, from Gay & Lesbian Advocates & Defenders added that

"... married couples receive over 150 supports and protections under Vermont law which are not available to gay and lesbian couples, no matter how long they have been together, no matter how committed their relationship is, and no matter how much they need those legal protections."

Matt Coles, Director of the ACLU's Lesbian and Gay Rights Project commented:

"Given that the status of the Hawaii suit is in some state of turmoil, a lawsuit in another state with a good chance of winning makes a great deal of sense...It fortifies the national battle for marriage rights." 3

In a lengthy filing (108 pages) the plaintiffs' lawyers stress that marriage is a fundamental human right, a foundational component of society, and should not be denied to gays or lesbians. "This case involves one of the most fundamental of all our human and civil rights: the right to marry the person we love, the person with whom we want to share our lives." The submission compared the Vermont attorney general's position as similar to that of the 1966 Virginia Supreme Court, which upheld a state law against interracial marriage. In a rather ironically named case, Loving v. Virginia, the court claimed that it was up to the legislature, not the courts, to change the law. The filing stated:

"The U.S. Supreme Court ultimately overturned laws outlawing interracial marriage. The couples' case boils down to the simple belief that society has changed and banning same-sex marriage is no longer reasonable...In light of the changing social mores in the state of Vermont, it would be unjust and unreasonable to construe Vermont's marriage statutes to exclude same-sex couples." 4

Their suit was naturally opposed by the Attorney General's office. They maintained that many of the statutory benefits that the plaintiffs wish to obtain through marriage can already be obtained through private contracts. They also claimed that "Vermont's history and traditions do not support including same-sex unions within the fundamental right to marriage...Marriage in this state has always been composed of one man and one woman." They cited seven arguments against same-sex marriage and asked that the suit be dismissed. The state claimed that they have an interest in giving special privileges to heterosexual couples, because it:

  1. Unites men and women to "bridge their differences";
  2. Promotes a [family] setting which provides both male and female role models;
  3. Preserves the "time honored" institution of marriage;
  4. Ensures that Vermont marriages are recognized in other states;
  5. Preserves the Legislature's authority to channel behavior and make normative statements;
  6. Minimizes the use of modern fertility treatments in order to avoid increased child custody and visitation disputes; and
  7. Furthers the link between procreation and childrearing. 

Chittenden Superior Court Judge Linda Levitt described arguments 1 to 6 as invalid, speculative, difficult to grasp, or "without common sense or logical basis." But she accepted point 7. She dismissed the suit on that basis.

Plaintiffs Nina Beck and Stacy Jolles commented. 

"Gay and lesbian individuals and couples, like us, have children.  We share the State's concern for promoting stable homes for children. That's why we wanted to marry."

The plaintiffs appealed the case to the Vermont Supreme Court.

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WARNING: Author's personal opinions:

We normally try to keep our personal thoughts out of our web site and remain objective. However, some times we cannot resist. The following are our subjective opinions on the Attorney General's arguments:

  1. Unites men and women: Most same-sex couples who wish to marry cannot form committed loving marital relationships with members of the opposite-sex. Since they cannot be united with members of the opposite sex anyway, the questions remains whether the state should recognize their same-sex relationships.
  2. Male and female role models: This is a key factor, particularly among religious and social conservatives who feel that parenting by both a man and a woman is vitally important to the mental and emotional health of their children. However, this belief is not held by everyone in society. Should the government promote one of many beliefs concerning gender?
  3. "Time honored" institution of marriage: Human slavery was also a time honored institution.
  4. Recognition of Vermont marriages in other states: Other states are required by the full faith and credit clause of the U.S. Constitution to recognize Vermont opposite-sex marriages.
  5. Legislature channeling behavior and make normative statements: Most loving committed bonds between adults are opposite-sex relationships. Does the state have the right to promote uniformity at the expense of the elementary human rights of same-sex couples?
  6. Minimizes the use of modern fertility treatments: The state can reduce the level of fertility treatments by any number of arbitrary means other than reducing the rights of same-sex couples: -- e.g. banning blonds or those under 35 years-of-age from seeking treatment. None of these make sense.
  7. Link between procreation and childrearing: Many couples, both homosexual and heterosexual, form committed relationships and raise children. Many same-sex couples have and/or raise children. In fact, two of the three plaintiff couples have children. Meanwhile, many heterosexual couples remain childless. Yet nobody talks of invalidating a man and women's marriage because they are childless.

We find no merit in any of the Attorney General's arguments.

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Comments by Some of the Plaintiffs:

bulletPeter Harrigan said: "Marriage is a fundamental right, central to me as a human being. I am deeply devoted to my relationship with Stan, and would like our commitment to be supported by legal rights afforded other committed couples."
bulletHolly Puterbaugh, who has been together with her partner for 25 years, noted that "Lois has done as much as any other spouse to earn my retirement benefits, but she's not entitled to them under present law."
bulletStacy Jolles and Nina Beck have been a couple for 7 years and are parents of a 2-year-old child. Stacy recalls when Nina was rushed to the hospital: "The doctors did not treat me as a family member, and if I had not had a signed medical power of attorney from Nina, they would not have let me be with Nina or participate in any medical decisions that needed to be made...Our son will be better off if his parents can marry and enjoy the legal support and protection that the civil marriage laws provide. He needs and deserves to know that his parents have a legal connection to one another, as well as to him."

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Roman Catholic Opposition

The Catholic News Service (CNS) reported a statement by Bishop Kenneth A. Angell of Burlington, VT, on 1997-JUL-23. On the topic of same-gender marriages, Bishop Angell said: "The church's position on marriage is absolutely, clearly defined as a 'faithful, exclusive and lifelong union between one man and one woman, established by God with its own proper laws.' The church's opposition to same-sex marriage has also been vocally and adamantly stated." He added that this stance "should in no way be misinterpreted to encourage disrespect for or prejudice against our brothers and sisters of homosexual orientation." He quoted as statement by the US Bishops as stating that gays and lesbians "have a right to and deserve our respect, compassion, understanding and defense against bigotry, attacks and abuse."

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Support by Unitarian Universalists

The Unitarian Universalist Association is probably the most liberal of all of the large religious denominations in North America. On 1996-JUN-3, the Unitarian Universalist Ministers' Association of New Hampshire/Vermont issued a pastoral letter affirming "the right of lesbians and gay men in coupled relationships to marry, with all attending legal and financial benefits." They argued that:

bulletgays and lesbians should only be deprived of the right to marry if those opposed to same-sex marriage can prove that society would be damaged by such marriages.
bulletafter examination of the evidence, they concluded that the "continued denial of the right of lesbian and gay couples to marry amounts to blatant prejudice rooted in misunderstanding and fear."
bulletthe Bible is silent on the issue of same-sex marriages.
bullet"...affirming the right of gay and lesbian couples to marry supports our culture's treasured values of commitment, loyalty and fidelity."
bullet"We believe in the sanctity of love between committed partners, no matter what the gender is of the persons who love. We believe families to come in many different configurations. We believe that in our often loveless world the expression of love should and must be honored."

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References:

  1. Kerry Lobel, Executive Director, National Gay and Lesbian Task Force, "Vermont Marriage Case," 1997-JUL-25. Available at: http://www.ngltf.org/vtmarr.html
  2. The full text of the Marriage Resolution is at: http://www.ftm.org/action/resolution.html
  3. "Gay Marriage Battle Erupts in Vermont," American Civil Liberties Union, at: http://www.aclu.org/news/w072597a.html
  4. "Judge Dismisses Vermont Gay Marriage Suit," http://www.vtpride.org/jan98/marrysty.htm

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Copyright 1998 to 2007 Ontario Consultants on Religious Tolerance
Last updated: 2007-AUG-26
Author: B.A. Robinson

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