The Vermont Supreme Court held that the state constitution prohibited exclusion of same-gender couples from the benefits of marriage. In response, the state legislature enacted the first civil union law in the United States.
On July 22, 1997, attorneys Beth Robinson, Susan M. Murray, and Mary Bonauto announced that they had filed suit on behalf of three same-gender couples, including Stan Baker, whose name became shorthand for the case itself. The other plaintiffs in the case were Peter Harrigan, Nina Beck, Stacy Jolles, Holly Puterbaugh, and Lois Farnham. Each of the couples had presented themselves to their local clerk’s office to request a marriage license, only to be turned away. As a result, they challenged the denial of their right to marry under Vermont law.
The case was initially dismissed by the Superior Court in December, 1997. The plaintiffs appealed and presented their arguments before the Vermont Supreme Court on November 18, 1998.
In its decision of December 20, 1999, written by Chief Justice Jeffrey L. Amestoy, the Vermont Supreme Court held that under the common benefits clause of the state constitution, “the State is constitutionally required to extend to same-gender couples the common benefits and protections that flow from marriage under Vermont law.” The court, however, rejected the argument that the plaintiffs were entitled to a marriage license under current law; the constitution guaranteed benefits of marriage only, not marriage itself.
While courts should defer to legislative ends, Amestoy required that the means to achieve those ends “bear a just and reasonable relation to the governmental objective.” This is a more stringent standard than required under the federal Fourteenth Amendment, which is often satisfied with means that are rational, with no requirement that they also be just.
State analysis also emphasized the “core value” of the constitutional provision—in contrast to interpretation of the federal constitution, which more specifically focuses on the legislative intent. Thus, while the framers of the state constitution could not have intended to protect same-gender couples, the values they expressed, most notably “the principle of inclusion,” embraced all persons, homosexuals included.
Against that background, the state’s professed interest in excluding same-gender marriages—to “further…the link between procreation and child rearing”—was deemed fatally over- and under-inclusive in that it extends the privileges of marriage “to many persons with no logical connection to the stated governmental goal” but also denies those privileges to many couples with children.
Finding “a constitutional obligation to extend to plaintiffs the common benefit, protection, and security that Vermont law provides opposite-gender married couples,” the court declined to order the state to issue the withheld marriage licenses, a timidity that prompted Justice Denise Johnson to dissent from this part of the decision. Instead, the court ordered the legislature “to craft an appropriate means of addressing this constitutional mandate.” Jurisdiction of the court was retained, however, so that the court would be free to impose a remedy if the legislature failed to respond adequately.
The legislative debate that followed proved divisive and rancorous. Of the many town meetings held across the state in 2000, none voted to support same-gender marriage. Domestic partnerships received stronger support, but still a minority. On March 16, 2000, in large part because of the personal commitment of Vermont house members such as Bill Lippert, the bill passed its final reading by a 76-69 vote.
After the senate passed the bill, and the house accepted the amendments, Governor Howard Dean
Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.
By the beginning of 2004 the number of reported civil unions in the state of Vermont had reached 6,613.
The Vermont debate markedly shifted the terms of the discussion about gay and lesbian relationships. While in 2000 civil unions had been the progressive compromise position, the idea had become so familiar that by the 2004 Massachusetts debates over the issue, civil unions had been positioned as a conservative alternative to same-gender marriage.
The advent of civil unions in Vermont immediately created a rift in the gay and lesbian community. Some, represented by William Eskridge, had viewed civil unions as a reasonable, perhaps temporary intermediate step on the way to the full marriage equality that wider society is not ready to accept. Others, such as Evan Wolfson, had argued that marriage should always be the goal and that civil rights activists should never set out to get a legal institution that is “separate but equal.”
At the practical level, civil unions have proven too limited to offer a permanent solution to the debate over gay and lesbian domestic relationships. Participants in civil unions do not enjoy the “same benefits” of a Vermont marriage after the couples leave Vermont, not least because the union provides no federal benefits. No state has a regular policy of recognizing this form of relationship, causing difficulties for those who wish either to terminate the union without returning to Vermont or to invoke the union as a basis for exercising some power ordinarily associated with a spouse, such as making medical decisions.
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Baker v. Vermont. 744 Atlantic Reporter (2d ser.), 864-912 (1999). -
Eskridge, William N. Equality Practice: Civil Unions and the Future of Gay Rights. New York: Routledge, 2002. -
Mello, Michael. Legalizing Gay Marriage. Philadelphia: Temple University Press, 2004. -
Moats, David. Civil Wars: A Battle for Gay Marriage. New York: Harcourt, 2004. -
“Same-Sex Marriage: A Selective Bibliography of the Legal Literature.” Law Library, Rutgers School of Law. http://law-library.rutgers.edu/SSM.html. -
Starr, Justin W. “Law Review Articles Citing Baker v. Vermont.” Brigham Young University Journal of Public Law 18 (2004): 353-370. -
Wolfson, Evan. Why Marriage Matters: America, Equality, and Gay People’s Right to Marry. New York: Simon & Schuster, 2004.
1981: Gay and Lesbian Palimony Suits Emerge
1993-1996: Hawaii Opens Door to Same-Gender Marriages
August 6, 1994: Japanese American Citizens League Supports Same-Gender Marriage
September 21, 1996: U.S. President Clinton Signs Defense of Marriage Act
February 21, 2003: Australian Court Validates Transsexual Marriage
April, 2003: Buenos Aires Recognizes Same-Gender Civil Unions
June 17, 2003, and July 19, 2005: Canada Legalizes Same-Gender Marriage
November 18, 2003: Massachusetts Court Rules for Same-Gender Marriage
November 18, 2004: United Kingdom Legalizes Same-Gender Civil Partnerships
April 4, 2005: United Kingdom’s Gender Recognition Act Legalizes Transsexual Marriage