The Vermont Ruling: A Status Update
by Mary Bonauto, Esq.,
co-counsel in Baker v. State of Vermont
© April 6, 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.
Historic Debates on the Civil Union Bill
The “Civil Union” bill passed, March 16, 2000, in its second reading in the Vermont House of Representatives on a vote of 76-69. The House consists of 150 members; not all were present for either vote. About 12 amendments were offered during the two-day debate. Almost all of the hostile amendments were defeated.
Efforts to send, delay, or kill the bill by putting the issue to a popular vote were defeated. This included efforts to:
On the first day of debate, Dean Corren (Progressive Party) introduced a pro-marriage amendment that was defeated 22-125.
- Send the Civil Union issue to a statewide Advisory Ballot Question in the November, 2000 election (a key vote on the first day);
- Call a Constitutional Convention (not authorized under Vermont law);
- Reduce the numbers of protections;
- Lump together same-sex couples with blood relatives;
- Ban interstate recognition;
- Prohibit marriage for same-sex couples;
- Send the bill back to Committee;
- Mandate further hearings and place the matter on the ballot;
- Allow town clerks to refuse to certify Civil Unions through a “freedom of conscience” provision; and
- Require both Civil Union partners to have the same HIV status
House Judiciary Committee members opposed the “DoMA”-like amendments. Rep. Michael Kainen said that the DoMA amendments carry baggage of a national anti-homosexual agenda. Rep. Little referred to the DoMA language as part of “a pervasive national agenda aimed at reducing the rights of gays and lesbians.”
A partial “DoMA” was added to the definition section of the bill. It defines marriage as the union of a man and a woman — already defined as such under Vermont Statutes — and repeats what the Vermont Supreme Court already ruled. This marks the second appearance of a “marriage” definition in the bill, because the same definition appears in the “Findings” section of the bill.
One of the last amendments to be voted on, accompanied by a blistering attack on gay people, would have required Civil Union partners to have the same HIV status. The virulence backfired; the amendment went down 2-136.
Once the amendments had all been voted upon, the bill passed on a vote of 76-69. I was impressed with the enormous courage and conviction of the Representatives who voted for the bill, at least some of who knew they were voting in opposition to the wishes of their constituents.
Chair Thomas Little and the entire Judiciary Committee deserve praise for their persistence in standing up against attempts to further marginalize gay people. A life-long Catholic, Diane Carmolli, said she thought this was “the first time the church has turned its back on families — on children and families.”
Another member of that Committee, Rep. William Lippert (the only openly gay member of the legislature), rose late in the first day “to put a human face on this bill.” In a steady, but emotion-drenched voice, Lippert described the “privilege” and “struggle” in his life “to identify myself as a gay man” and his privilege in finding a long-term partner. He later went on to address opponents: “We can argue about whether these are civil rights or other rights, but they are rights I don’t have right now and almost everyone else in this chamber does.”
Another representative, Mary C. Mazzariello of Rutland City, came out as the mother of two lesbian daughters, a fact that had not been known by her colleagues, or even her “seat-mate,” with whom the representative had often talked about her three children. Describing her daughters’ and her family’s pain over their inability to “fit the mold,” she asked her colleagues to “make Vermont a leader in the preservation of family life.”
Last, but not least, at a particularly tense interlude in the debates, Rep. Francis Brooks of Montpelier, the only African-American in the House, stated, “I can’t sit here and be reminded of various acceptable ways of telling other people, ‘No, you’re not quite there.’” He talked about his own struggle to be viewed as different by other people, and concluded, “I guess if I could say anything to anyone is to say ‘Please consider the human being that you have decided to place a stigma on.’”
The “Civil Union” House Bill
While the civil union bill, passed by the Vermont House of Representatives, is far from legal marriage — opponents make the desperate claim that it is marriage — it is breathtaking in its own way.
Some of the many important details of the bill are:
The entire bill may be read at:
- The requirements for entering a civil union are virtually identical to the marriage licensing and certification process;
- The bill is intended to provide “a legal status with the attributes and effects of civil marriage;”
- The entire law of domestic relations, including annulment, separation and divorce, child custody and support, and property division and maintenance, applies to parties in a civil union;
- “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 marriage;”
- Parties to a civil union will be fully integrated into probate laws, including being treated as legal next-of-kin for purposes of inheritance, hospital visitation and medical decision-making;
- Parties to a civil union will be able to take unpaid leave from work to care for a partner who is ill (or the partner’s ill parent);
- Parties to a civil union will be able to transfer property to one another without paying property transfer taxes, and can own property in a way which is secure from the individual debts of either partner;
- State taxes on married couples and parties to a civil union will be the same;
- Causes of action related to spousal status, including wrongful death and loss of consortium, will be available to parties to a civil union;
- Worker’s compensation benefits will be equalized;
- Public assistance benefit rules will be equalized;
- Laws relating to immunity from compelled testimony against one’s spouse and the marital communication privilege will be available to parties in a civil union;
- Discrimination or different treatment of parties in a civil union would be considered discrimination based on both sexual orientation and marital status;
- Broad non-discrimination prohibitions regarding insurance ensure the equal treatment of spouses and parties to a civil union; and
- The bill attempts to equalize the tax treatment of spouses and parties to a civil union.
Vermont Senate Proceedings
The Judiciary Committee of Vermont’s 30 member Senate is now conducting its own hearings on the “Civil Union” bill passed by the House, as well as on the Baker decision which was the impetus for legislative action.
Political pressure on the Senate is intense. One of the leading oppositions to the bill paid for desperate and deceitful full-page newspaper ads claiming that the House bill is really marriage in disguise. Unfortunately, it is not.
With overturned hour glasses for visuals, the misleading ads claim “THERE’S ONLY ONE WAY TO END THE THREAT TO TRADITIONAL MARRIAGE NOW, AND KEEP IT SAFE: WITH AN AMENDMENT TO VERMONT’S CONSTITUTION.”
Only the Senate can begin a constitutional amendment process. Failing to do so this year, the process can not begin again until 2003.
Adding even more pressure, is the perception of popular opposition, fueled in part by the largely negative results of Town Meeting votes in about 50 of Vermont’s 249 cities and towns during the week of March 6. At the urging of the Republicans, these towns placed non-binding questions on their local Town Meeting Day ballots about support for marriage, domestic partnership, or a constitutional amendment. Because it was not on many of the town ballots, and only about five percent of the eligible voters spoke at the meetings, it did not represent Vermonters’ desires. In fact, exit polling conducted during the primaries on March 7 showed far more support for same-sex couples than was voiced at the Town Meetings.
Union and marriage opponents have been loud and threatening, with several supportive legislators reporting vicious name-calling and physical threats. The constant presence of the infamous Randall Terry, founder of Operation Rescue, has further aggravated tensions with his bluntly anti-gay national radio appeals opposing equal treatment of same-sex couples in Vermont.
On March 21, Senate Judiciary Chair Richard Sears convened the hearing Committee to explore whether, and if so, how, to change the bill presented by the House. The Committee is also considering various constitutional amendment proposals, including one to limit marriage to one man and one woman, and an even broader amendment designed to allow the denial of the legal benefits and protections of marriage to same-sex couples. Finally, the Committee is considering a domestic partnership bill originally proposed by Senator Vince Illuzzi, who now opposes his own bill.
On March 22 and 23, GLAD’s co-counsel Beth Robinson and Susan Murray testified on the meaning of the Baker decision, and were joined by five of the six plaintiffs in the case. Nina Beck, one of the plaintiffs, spoke of how the religious marriage, into which she and her partner Stacy Jolles entered in 1991, had sustained them through the joys and difficulties of their eight years together. She talked about the birth of their two sons and the devastating loss of one of their sons from a rare heart defect when he was two-and-a-half. In Nina Beck’s words:
“But then, as now, despite our spiritual union, Stacy and I have no legal bond to each other. The ramifications of this are far-reaching and affect our lives every day. … Civil marriage can strengthen the fabric of our society as it protects and nurtures the bonds between a couple and a family. Civil marriage is currently the only construct by which these benefits are granted in our society. Without access to this system, we are denied any legal recognition of our unions and of our families. Without legal recognition, we are vulnerable.”
The Committee also heard from Representative Thomas Little, Chair of the House Judiciary Committee which took the lead in drafting the Civil Union bill, as well as representatives from the Attorney General’s office and various law professors.
The plan is to hear from witnesses for about two weeks. The Senate has scheduled an interactive television public forum/hearing on April 3 to allow Vermonters to testify about the bill from various sites around the state.
The Vermont Legislature hopes to adjourn for the year between April 15 and April 30. If the bill passes in the Senate, the Governor has indicated that he would enthusiastically sign the bill. The bill goes to a conference committee only if the Senate changes the bill, and the House does not concur with those changes.
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” organization claims to disavow Terry, it benefits from the climate of fear he creates.
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.”