The Vermont Ruling: A Status Update
by Mary Bonauto, Esq.,
co-counsel in Baker v. State of Vermont
© February 9, 2000, Mary Bonauto
The Vermont Supreme Court unanimously ruled, on Dec. 20, 1999, that same-sex couples are entitled to the same legal protections and benefits provided to opposite-sex married couples. This decision, in Baker v. State of Vermont, is historic and marks the first time a court has moved toward comprehensive equality and citizenship rights for gay and lesbian people.
However, the Court did not decide how same-sex couples might achieve this equality. Instead, the Court referred the matter to the state legislature to craft a remedy. The Court gave the Vermont Legislature “a reasonable time” in which to complete its work.
The court also kept jurisdiction over the case. In the event the Legislature fails, or is unable to fulfill the Court’s ruling, the three plaintiff couples will be able to go back to court and seek a remedy.
Public hearings were held before the combined House and Senate Judiciary Committees on January 25 and February 1, 2000. Each lasting about four hours. The hearings were statewide broadcasts; the first on Vermont Public Radio, and the second on Vermont Public TV.
People spoke passionately and eloquently on both sides of the issue. Representative Thomas Little and Senator Richard Sears made brief introductory remarks, quoted the court decision, eschewed polls, and requested the speakers to provide guidance to the Committees about how to implement the court decision.
Lesbians, gay men, and same-sex families were front and center in the discussions, explaining they wanted marriage for both practical purposes, and to erase their status as second class citizens. Some had stories of hardship and mistreatment to tell, including being denied access to partners in hospitals or medical settings — even when they had the proper paperwork. Injecting a bit of humor, one woman stated, “I want marriage. And that’s my final answer.”
Many parents came forward with their children, urging the Committee to allow the benefits and protections of marriage to flow through them to their children. Non-gay allies were numerous, insisting that this issue is one of civil rights and basic fairness, and reassuring the committee that their own families would not be threatened by recognition of lesbian and gay families.
A large number of clergy also weighed in for the freedom to access civil marriage, arguing that the Bible does not forbid it, and that human compassion and dignity demands it.
At both hearings, and particularly the second, marriage opponents sent in busloads of people, primarily organized through Catholic and evangelical churches. The Catholic Church convened a rally on the State House steps to coincide with the hearings. There was a good deal of Bible quoting, as well as calls to defy the court ruling, impeach the justices, and allow the voters to amend the constitution.
These opponents made it crystal clear they are unalterably opposed to both domestic partnership and marriage. They called lesbians and gay men “immoral.” They quoted dictionary definitions of marriage, and pointed to the “natural world” stating the requirement of the union of male and female. A significant portion of the opponents testified that polygamy and other changes were around the corner, should lesbian and gay couples be allowed to marry. Many insisted Vermont would be “cursed” if it allowed either marriage or domestic partnership.
Also at the second hearing, a number of young people explained that they see this issue as one of discrimination and fairness.
House Judiciary Committee Hearings
For nearly a month, the Judiciary Committee of the Vermont House of Representatives heard testimony about how the Legislature should respond to the Baker ruling. On a particularly dramatic day of testimony, religious figures on both sides of the issue appeared before the Committee. Testifying in support of the freedom to marry were the Episcopal Bishop of Vermont, as well as the highest ranking official in Vermont of the United Church of Christ, and a Rabbi (Conservative).
In the final two weeks of testimony, the Committee heard from people familiar with how other countries recognize same-sex relationships. A Canadian scholar talked about her country’s rapid movements toward recognizing the legitimacy and dignity of lesbian and gay relationships, as well as developments in France, the Netherlands, and various Scandinavian countries. Additionally, various State agencies submitted testimony about how they would be affected by either the marriage or domestic partnership options.
On the final day of testimony, my co-counsel Susan Murray and Beth Robinson again spoke with the Committee. Susan addressed those who call us “immoral” and “unnatural” by referring back to the sad days when people said interracial relationships were “unnatural” and something “the natural instinct revolts at.”
Beth responded to calls for incremental steps and delay by quoting the Rev. Dr. Martin Luther King’s Letter From a Birmingham Jail, in which Dr. King responded to white clergymen who wanted him to move more slowly to avoid social turmoil. This is one of the passages she quoted:
“I have almost reached the regrettable conclusion that the Negro’s great stumbling block on the stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate who is more devoted to ‘order’ than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says, ‘I agree with you in the goal you seek, but I can’t agree with your methods of direct action’; who paternalistically feels that he can set the timetable for another man’s freedom; who lives by the myth of time and who constantly advises the Negro to wait until ‘a more convenient season.’”
What the Committee is Doing
The Committee has begun its drafting process. It’s new 22-page draft bill contains a long preamble making legislative findings about the goodness of gay and lesbian families, and the importance of ending discrimination. A crucial passage of the text states:
a) Domestic partners shall have the same benefits, privileges and responsibilities under State law that are enjoyed by spouses in marriage.
They hope to conclude their work and have a vote in the House by late February with the hope that the Senate will take over by Town Meeting Day on March 7, 2000.
b) A domestic partner shall be included in any definition of use of the terms “spouse,” “family,” “immediate family,” “dependent” and other gender-specific terms to denote the spousal relationship as those terms are used throughout the law.
On February 9, 2000, the House Judiciary Committee took a straw poll, deciding to focus its efforts in the next two-to-three weeks to drafting a bill which several legislators referred to as a “civil rights act for gay and lesbian families.” This approach is in lieu of amending Vermont’s marriage laws to allow couples of the same sex to marry.
When the Committee members announced their positions on how the Committee should proceed, all of them talked about equality for gay men and lesbians. Many talked about how much they had learned about gay and lesbian families.
After their initial statements, a straw poll was taken in which eight members indicated support for “domestic partnership” in lieu of marriage, and three favored amending the marriage laws to include same-sex partners. All members adamantly oppose a constitutional amendment, or any other effort to reject the Vermont Supreme Court’s historic ruling for equality.
Because this is not an official vote, the Committee or Legislature could move in a different direction as they start the drafting process.
Legislative opponents to equality have already vowed to attach a “DoMA”-like amendment to any measure protecting same-sex families, making the fate of any bill uncertain.
A variety of bills are now pending in the House and Senate; any of which could be added to the House Judiciary Committee once that bill is sent to the House floor. These measures include:
- A bill authorizing marriage of same-sex couples;
- A bill to ban marriage of same-sex couples, and to prevent Vermont’s acceptance of any such marriage from any other state;
- Two bills to provide a separate system for same-sex couples — allegedly with the same benefits that are accorded to married people; and
- A constitutional amendment. Note: there is no possibility a constitutional amendment could appear on the ballot this year. Its earliest possible appearance would be November 2005.
The Vermont Freedom to Marry Action Committee, an in-state group, is the clearinghouse for Vermonters who want to support this issue.
The Vermont anti-gay, anti-marriage group, Take It to The People, claims they are not getting outside help, but few believe it, especially when it comes to finances.
The notorious Randall Terry, of Operation Rescue infamy, has established an office to Montpelier. Terry, who is not a Vermont resident, has written; “Homosexuality: It is an abomination. It should be illegal.” Terry has made threats against Legislators. And although the “Take It to The People” claims to disavow Terry, it benefits from the climate of fear he creates.
At the urging of the Republicans, a small number of towns have placed questions on their local Town Meeting Day ballots about support for marriage, domestic partnership, or a constitutional amendment. Because it will not be on many town ballots, on March 7, 2000, and only about 20 percent of the eligible voters show for the Meeting, it is only an unscientific snapshot of Vermonters’ desires. However, it is expected that the media will give it a great deal of coverage.
1. Elected representatives listen to their constituents. If you live in Vermont, tell them you want legal marriage for same-sex couples.
If you are from out-of-state, please talk to your friends who live in Vermont. Talk to your old college roommates or friends from summer camp. Talk to them about this issue and how important it is.
2. All Vermont residents can get in touch with the Vermont Freedom to Marry Action Committee to find out how they may help gain legal marriage.
3. All Vermont residents can vote at their own Town Meeting on March 7, 2000.
4. We need your help. Support the Vermont Freedom to Marry Action Committee financially. Contributions are not tax deductible.
Please also support Gay & Lesbian Advocates & Defenders (GLAD), co-counsel on the Baker case, because there is still much legal work to do in evaluating the viability and constitutionality of any legislative proposals. Contributions to GLAD are tax deductible.
Gay & Lesbian Advocates & Defenders|
294 Washington St., #740, Boston, MA 02108-4608
617-426-1350; fax 617-426-3594
5. You can help Vermont, and all of us, by reaching out to the public policy makers in your own state. If you need help contacting people in your own state, please see Freedom to Marry Affiliate Organizations.
Finally, we will continue to work with the Legislature to show them that the only way to provide same-sex couples with the same protections, benefits, and responsibilities of marriage is indeed through marriage. We are not giving up.
Thanks to everyone — everywhere — for your continued encouragement and support. As Frederick Douglass said many years ago, “If there is no struggle, there is no progress.”