Baker v. State (98-032)
[Filed 20-Dec-1999]
ENTRY ORDER
SUPREME COURT DOCKET NO. 98-032
NOVEMBER TERM, 1998
Stan Baker, et al. } APPEALED FROM:
}
}
v. } Chittenden Superior Court
}
State of Vermont, et al. }
} DOCKET NO. 1009-97CnC
In the above-entitled cause, the Clerk will enter:
The judgment of the superior court upholding the constitutionality of the
Vermont marriage statutes under Chapter I, Article 7 of the Vermont
Constitution is reversed. The effect of the Court's decision is suspended,
and jurisdiction is retained in this Court, to permit the Legislature to
consider and enact legislation consistent with the constitutional mandate
described herein.
_______________________________________
Jeffrey L. Amestoy, Chief Justice
Concurring:
Concurring and Dissenting:
_______________________________________
John A. Dooley, Associate Justice
________________________________
Denise R. Johnson, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
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NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 98-032
Stan Baker, et al. Supreme Court
On Appeal from
v. Chittenden Superior Court
State of Vermont, et al. November Term, 1998
Linda Levitt, J.
Beth Robinson and Susan M. Murray of Langrock Sperry & Wool,
Middlebury, and Mary Bonauto, Gay & Lesbian Advocates & Defenders, Boston,
Massachusetts, for Plaintiffs-Appellants.
William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan and
Timothy Tomasi, Assistant Attorneys General, Montpelier, for
Defendant-Appellee State.
Timothy M. Eustace of Stitzel, Page & Fletcher, P.C., Burlington, for
Defendants-Appellees Town of Shelburne and City of South Burlington.
Gregg H. Wilson of Kolvoord, Overton & Wilson, Essex Junction, for
Defendant-Appellee Town of Milton.
Harvey Golubock, Montpelier, for Amicus Curiae Vermont Human Rights
Commission.
Richard T. Cassidy of Hoff, Curtis, Pacht, Cassidy & Frame, P.C.,
Burlington, and Evan Wolfson, Lambda Legal Defense and Education Fund,
Inc., and Lawson M. Vicario and S. Elizabeth Foster of Gibson, Dunn &
Crutcher LLP, New York, New York, for Amici Curiae Vermont Coalition for
Lesbian and Gay Rights, et al.
David Rath of Kohn & Rath, Hinesburg, for Amicus Curiae Professors of
Legislation and Statutory Interpretation.
Eileen M. Blackwood of Blackwood and Kraynak, P.C., Burlington, David
Chambers, White River Junction, and Matthew Coles, American Civil Liberties
Union Foundation, New York, New York, for Amici Curiae Parents and Friends
of Lesbian and Gay Men, et al.
Peter M. Lawrence of Barr, Sternberg & Moss, P.C., Bennington, for
Amici Curiae Vermont Organization for Weddings of the Same-Gender, et al.
William M Dorsch of Mickenberg, Dunn, Sirotkin & Dorsch, Burlington,
for Amici Curiae Vermont NOW, et al.
Philip C. Woodward and Karen McAndrew of Dinse, Knapp & McAndrew,
P.C., Burlington, for Amici Curiae Vermont Psychiatric Association, et al.
Hal Goldman, Burlington, for Amicus Curiae Take It To the People.
J. Paul Giuliani of McKee, Giuliani & Cleveland, Montpelier, and
Dwight G. Duncan, North Dartmouth, Massachusetts, for Amici Curiae New
Journey, et al.
Robert H. Erdmann, South Burlington, Jay Alan Sekulow and John P.
Tuskey, Virginia Beach, Virginia, and Vincent P. McCarthy, New Milford,
Connecticut, for Amicus Curiae The American Center for Law and Justice.
Clarke A. Gravel of Gravel & Shea, Burlington, and Don Stenberg,
Nebraska Attorney General, and L. Steven Grasz, Deputy Attorney General,
Lincoln, Nebraska, for Amici Curiae State of Nebraska, et al.
Jon R. Eggleston, Burlington, for Amicus Curiae Professors of Law and
Jurisprudence.
Duncan F. Kilmartin, Newport, and David R. Huggins, The National Legal
Foundation, Memphis, Tennessee, for Amici Curiae Specialty Research
Associates, et al.
William M. O'Brien, O'Brien Law Offices, Winooski, Thomas E. McCormick
of McCormick Fitzpatrick Kasper & Burchard, Burlington, and Von G. Keetch
and Alexander Dushku of Kirton & McConkie, Salt Lake City, Utah, for Amici
Curiae Roman Catholic Diocese of Burlington, Vermont, et al.
John Fitzpatrick, Burlington, and David Zwiebel, New York, New York,
for Amicus Curiae Agudath Israel of America.
Duncan F. Kilmartin of Rexford & Kilmartin, Newport, and Steven T.
McFarland, Kimberlee W. Colby and Samuel B. Casey, Annandale, Virginia, for
Amici Curiae Christian Legal Society, et al.
Timothy J. O'Connor, Jr., O'Connor Law Office, Brattleboro, and David
Orgon Coolidge, The Catholic University of America, Washington, District of
Columbia, for Amici Curiae Hon. Peter Brady, et al.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
AMESTOY, C.J. May the State of Vermont exclude same-sex couples from
the benefits and protections that its laws provide to opposite-sex married
couples? That is the fundamental question we address in this appeal, a
question that the Court well knows arouses deeply-felt religious, moral,
and political beliefs. Our constitutional responsibility to consider the
legal merits of issues properly before us provides no exception for the
controversial case. 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 conclude that under the Common Benefits Clause of the Vermont
Constitution, which, in pertinent part, reads,
That government is, or ought to be, instituted for the common
benefit, protection, and security of the people, nation, or community, and
not for the particular emolument or advantage of any single person,
family, or set of persons, who are a part only of that community,
Vt. Const., ch. I, art 7., plaintiffs may not be deprived of the statutory
benefits and protections afforded persons of the opposite sex who choose
to marry. 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. Whatever system is chosen, however, must conform with
the constitutional imperative to afford all Vermonters the common benefit,
protection, and security of the law.
Plaintiffs are three same-sex couples who have lived together in
committed relationships
for periods ranging from four to twenty-five years. Two of the couples
have raised children together. Each couple applied for a marriage license
from their respective town clerk, and each was refused a license as
ineligible under the applicable state marriage laws. Plaintiffs thereupon
filed this lawsuit against defendants -- the State of Vermont, the Towns of
Milton and Shelburne, and the City of South Burlington -- seeking a
declaratory judgment that the refusal to issue them a license violated the
marriage statutes and the Vermont Constitution.
The State, joined by Shelburne and South Burlington, moved to dismiss
the action on the ground that plaintiffs had failed to state a claim for
which relief could be granted. The Town of Milton answered the complaint
and subsequently moved for judgment on the pleadings. Plaintiffs opposed
the motions and cross-moved for judgment on the pleadings. The trial court
granted the State's and the Town of Milton's motions, denied plaintiffs'
motion, and dismissed the complaint. The court ruled that the marriage
statutes could not be construed to permit the issuance of a license to
same-sex couples. The court further ruled that the marriage statutes were
constitutional because they rationally furthered the State's interest in
promoting "the link between procreation and child rearing." This appeal
followed. (FN1)
I. The Statutory Claim
Plaintiffs initially contend the trial court erred in concluding that
the marriage statutes
render them ineligible for a marriage license. It is axiomatic that the
principal objective of statutory construction is to discern the
legislative intent. See Merkel v. Nationwide Ins. Co., 166 Vt. 311, 314,
693 A.2d 706, 707 (1997). While we may explore a variety of sources to
discern that intent, it is also a truism of statutory interpretation that
where a statute is unambiguous we rely on the plain and ordinary meaning
of the words chosen. See In re P.S., 167 Vt. 63, 70, 702 A.2d 98, 102
(1997). "[W]e rely on the plain meaning of the words because we presume
they reflect the Legislature's intent." Braun v. Board of Dental
Examiners, 167 Vt. 110, 116, 702 A.2d 124, 127 (1997).
Vermont's marriage statutes are set forth in Chapter 1 of Title 15,
entitled "Marriage," which defines the requirements and eligibility for
entering into a marriage, and Chapter 105 of Title 18, entitled "Marriage
Records and Licenses," which prescribes the forms and procedures for
obtaining a license and solemnizing a marriage. Although it is not
necessarily the only possible definition, there is no doubt that the plain
and ordinary meaning of "marriage" is the union of one man and one woman
as husband and wife. See Webster's New International Dictionary 1506 (2d
ed. 1955) (marriage consists of state of "being united to a person . . .
of the opposite sex as husband or wife"); Black's Law Dictionary 986 (7th
ed. 1999) (marriage is "[t]he legal union of a man and woman as husband
and wife"). This understanding of the term is well rooted in Vermont
common law. See Le Barron v. Le Barron, 35 Vt. 365, 366-71 (1862)
(petition by wife to annul marriage for alleged physical impotence of
husband); Clark v. Field, 13 Vt. 460, 465 (1841) (suit to declare marriage
null and void on ground that husband and wife had not consummated
marriage); Overseers of the Poor of the Town of Newbury v. Overseers of the
Poor of the Town of Brunswick, 2 Vt. 151, 152 (1829) (dispute between
towns
over liability for support of family turned, in part, on validity of
marriage where justice of peace had not declared parties husband and
wife). The legislative understanding is also reflected in the enabling
statute governing the issuance of marriage licenses, which provides, in
part, that the license "shall be issued by the clerk of the town where
either the bride or groom resides." 18 V.S.A. § 5131(a). "Bride" and
"groom" are gender-specific terms. See Webster's, supra, at 334 (bride
defined as "a woman newly married, or about to be married;" bridegroom
defined as "a man newly married, or about to be married").
Further evidence of the legislative assumption that marriage consists
of a union of opposite genders may be found in the consanguinity statutes,
which expressly prohibit a man from marrying certain female relatives, see
15 V.S.A. § 1, and a woman from marrying certain male relatives, see id. §
2. In addition, the annulment statutes explicitly refer to "husband and
wife," see id. § 513, as do other statutes relating to married couples.
See, e.g., 12 V.S.A. § 1605 ("husband and wife" may not testify about
communications to each other under rule commonly known as "marital
privilege," see State v. Wright, 154 Vt. 512, 525, 581 A.2d 720, 728
(1990)); 14 V.S.A. §§ 461, 465, 470 (referring to interest of "widow" in
estate of her "husband"); id. § 10 (requiring three witnesses where
"husband or wife" are given beneficial interest in other's will); 15 V.S.A.
§ 102 (legal protections where "married man . . . deserts, neglects,
or abandons his wife").
These statutes, read as a whole, reflect the common understanding that
marriage under Vermont law consists of a union between a man and a woman.
Plaintiffs essentially concede this fact. They argue, nevertheless, that
the underlying purpose of marriage is to protect and encourage the union
of committed couples and that, absent an explicit legislative prohibition,
the
statutes should be interpreted broadly to include committed same-sex
couples. Plaintiffs rely principally on our decision in In re B.L.V.B.,
160 Vt. 368, 369, 628 A.2d 1271, 1272 (1993). There, we held that a woman
who was co-parenting the two children of her same-sex partner could adopt
the children without terminating the natural mother's parental rights.
Although the statute provided generally that an adoption deprived the
natural parents of their legal rights, it contained an exception where the
adoption was by the "spouse" of the natural parent. See id. at 370, 628
A.2d at 1273 (citing 12 V.S.A. § 448). Technically, therefore, the
exception was inapplicable. We concluded, however, that the purpose of
the law was not to restrict the exception to legally married couples, but
to safeguard the child, and that to apply the literal language of the
statute in these circumstances would defeat the statutory purpose and
"reach an absurd result." Id. at 371, 628 A.2d at 1273. Although the
Legislature had undoubtedly not even considered same-sex unions when the
law was enacted in 1945, our interpretation was consistent with its
"general intent and spirit." Id. at 373, 628 A.2d at 1274.
Contrary to plaintiffs' claim, B.L.V.B. does not control our
conclusion here. We are not dealing in this case with a narrow statutory
exception requiring a broader reading than its literal words would permit
in order to avoid a result plainly at odds with the legislative purpose.
Unlike B.L.V.B., it is far from clear that limiting marriage to
opposite-sex couples violates the Legislature's "intent and spirit."
Rather, the evidence demonstrates a clear legislative assumption that
marriage under our statutory scheme consists of a union between a man and a
woman. Accordingly, we reject plaintiffs' claim that they were entitled
to a license under the statutory scheme governing marriage.
II. The Constitutional Claim
Assuming that the marriage statutes preclude their eligibility for a
marriage license, plaintiffs contend that the exclusion violates their
right to the common benefit and protection of the law guaranteed by
Chapter I, Article 7 of the Vermont Constitution.(FN2) They note that in
denying them access to a civil marriage license, the law effectively
excludes them from a broad array of legal benefits and protections
incident to the marital relation, including access to a spouse's medical,
life, and disability insurance, hospital visitation and other medical
decisionmaking privileges, spousal support, intestate succession,
homestead protections, and many other statutory protections. They claim
the trial court erred in upholding the law on the basis that it reasonably
served the State's interest in promoting the "link between procreation and
child rearing." They argue that the large number of married couples
without children, and the increasing incidence of same-sex couples with
children, undermines the State's rationale. They note that Vermont law
affirmatively guarantees the right to adopt and raise children regardless
of the sex of the parents, see 15A V.S.A. § 1-102, and challenge the logic
of a legislative scheme that recognizes the rights of same-sex partners as
parents, yet denies them -- and their children -- the same security as
spouses.
In considering this issue, it is important to emphasize at the outset
that it is the Common Benefits Clause of the Vermont Constitution we are
construing, rather than its counterpart, the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution. It is
altogether fitting and proper that we do so. Vermont's constitutional
commitment to equal rights was the product of the successful effort to
create an independent republic and a fundamental charter of government,
the Constitution of 1777, both of which preceded the adoption of the
Fourteenth Amendment by nearly a century. As we explained in State v.
Badger, 141 Vt. 430, 448-49, 450 A.2d 336, 347 (1982), "our constitution
is not a mere reflection of the federal charter. Historically and
textually, it differs from the United States Constitution. It predates the
federal counterpart, as it extends back to Vermont's days as an
independent republic. It is an independent authority, and Vermont's
fundamental law."
As we explain in the discussion that follows, the Common Benefits
Clause of the Vermont Constitution differs markedly from the federal Equal
Protection Clause in its language, historical origins, purpose, and
development. While the federal amendment may thus supplement the
protections afforded by the Common Benefits Clause, it does not supplant it
as the first and primary safeguard of the rights and liberties of all
Vermonters. See id. (Court is free to "provide more generous protection
to rights under the Vermont Constitution than afforded by the federal
charter"); State v. Jewett, 146 Vt. 221, 224, 500 A.2d 233, 235 (1985)
(state constitution may protect Vermonters "however the philosophy of the
United States Supreme Court may ebb and flow"); see generally H. Linde,
First Things First, Rediscovering the States' Bill of Rights, 9 U. Balt. L.
Rev. 379, 381-82 (1980); S. Pollock, State Constitutions as Separate
Sources of Fundamental Rights, 35 Rutgers L. Rev. 707, 717-19 (1983).
A. Historical Development
In understanding the import of the Common Benefits Clause, this Court
has often referred
to principles developed by the federal courts in applying the Equal
Protection Clause.(FN3) See, e.g., Choquette v. Perrault, 153 Vt. 45,
51-52,569 A.2d 455, ___ (1989). At the same time, however, we have
recognized that "[a]lthough the provisions have some similarity of purpose,
they are not identical." Benning v. State, 161 Vt. 472, 485 n.7, 641 A.2d
757, 764 n.7 (1994). Indeed, recent Vermont decisions reflect a very
different approach from current federal jurisprudence. That approach may
be described as broadly deferential to the legislative prerogative to
define and advance governmental ends, while vigorously ensuring that the
means chosen bear a just and reasonable relation to the governmental
objective.
Although our decisions over the last few decades have routinely
invoked the rhetoric of
suspect class favored by the federal courts, see, e.g., Choquette, 153 Vt.
at 51, 569 A.2d at 458, there are notable exceptions. The principal
decision in this regard is the landmark case of State v. Ludlow
Supermarkets, Inc., 141 Vt. 261, 448 A.2d 791 (1982). There, Chief Justice
Albert Barney, writing for the Court, invalidated a Sunday closing law
that discriminated among classes of commercial establishments on the basis
of their size. After noting that this Court, unlike its federal
counterpart, was not constrained by considerations of federalism and the
impact of its decision on fifty varying jurisdictions, the Court declared
that Article 7 "only allows the statutory classifications . . . if a
case of necessity can be established overriding the prohibition of Article
7 by reference to the "`common benefit, protection, and security of the
people.'" Id. at 268, 448 A.2d at 795. Applying this test, the Court
concluded that the State's justifications for the disparate treatment of
large and small businesses failed to withstand constitutional scrutiny.
Id. at 269-70, 448 A.2d at 796.
Ludlow, as we later explained, did not alter the traditional
requirement under Article 7 that legislative classifications must
"reasonably relate to a legitimate public purpose." Choquette, 153 Vt. at
52, 569 A.2d at 459. Nor did it overturn the principle that the
justifications demanded of the State may depend upon the nature and
importance of the benefits and protections affected by the legislation;
indeed, this is implicit in the weighing process. It did establish that
Article 7 would require a "more stringent" reasonableness inquiry than was
generally associated with rational basis review under the federal
constitution. State v. Brunelle, 148 Vt. 347, 351, 534 A.2d 198, 201-202
(1987); see also Hodgeman v. Jard Co., 157 Vt. 461, 464, 599 A.2d 1371,
1373 (1991) (citing Ludlow for principle that Article 7 "may require this
Court to examine more closely distinctions drawn by state government than
would the Fourteenth
Amendment"). Ludlow did not override the traditional deference accorded
legislation having any reasonable relation to a legitimate public purpose.
It simply signaled that Vermont courts -- having "access to specific
legislative history and all other proper resources" to evaluate the object
and effect of State laws -- would engage in a meaningful, case-specific
analysis to ensure that any exclusion from the general benefit and
protection of the law would bear a just and reasonable relation to the
legislative goals. Ludlow, 141 Vt. at 268, 448 A.2d at 795.(FN4)
Although it is accurate to point out that since Ludlow our decisions
have consistently recited the federal rational-basis/strict-scrutiny
tests, it is equally fair to observe that we have been less than
consistent in their application. Just as commentators have noted the
United States Supreme Court's obvious yet unstated deviations from the
rational-basis standard, so have this Court's holdings often departed from
the federal test.(FN5) In Colchester Fire Dist. No. 2 v.
Sharrow, 145 Vt. 195, 198-99, 485 A.2d 134, 136-37 (1984), for example,
the Court ostensibly applied a rational-basis test to invalidate a payment
scheme for revenue-bond assessments. While acknowledging the broad
discretion traditionally accorded the Legislature in taxation and other
areas of public welfare, the Court nevertheless examined each of the
district's rationales in detail and found them to be unpersuasive in light
of the record and administrative experience. See id. at 200-201, 485 A.2d
at 137 (record established no "plausible relationship between the method
of bond assessment and its alleged purposes").
In Choquette, 153 Vt. at 51, 569 A.2d at 458, the Court again
purported to apply rational-basis review under Article 7 in holding a
fence-repair statute to be unconstitutional. Not content to accept
arguments derived from a bygone agricultural era, the Court held that the
policies underlying the law were outdated and failed to establish a
reasonable relation to the public purpose in the light of contemporary
circumstances. See id. at 53-54, 569 A.2d at 459-60; see also Oxx v.
Department of Taxes, 159 Vt. 371, 376, 618 A.2d 1321, 1324 (1992) (income
tax assessment violated Equal Protection and Common Benefits Clauses as
applied);
Lorrain v. Ryan, 160 Vt. 202, 215 628 A.2d 543, 551 (1993) (statutory
scheme denying right of spouse of injured worker to sue third-party
tortfeasor for loss of consortium violated Equal Protection and Common
Benefits Clauses).
The "more stringent" test was also implicit in our recent decision in
MacCallum v. Seymour's Administrator, 165 Vt. 452, 686 A.2d 935 (1996),
which involved an Article 7 challenge to an intestacy statute that denied
an adopted person's right of inheritance from collateral kin. While
employing the rhetoric of minimal scrutiny, our analysis was more rigorous
than traditional federal rational-basis review. Indeed, although the
State proffered at least a conceivable purpose for the legislative
distinction between natural and adopted children, we held that the
classification was unreasonable, explaining that "[a]dopted persons have
historically been a target of discrimination," id. at 459, 686 A.2d at
939, and that however reasonable the classification when originally
enacted, it represented an "outdated" distinction today. Id. at 460, 686
A.2d at 939. Thus, while deferential to the historical purpose underlying
the classification, we demanded that it bear a reasonable and just
relation to the governmental objective in light of contemporary
conditions.
This approach may also be discerned in the Court's recent opinion in
Brigham v. State, 166 Vt. 246, 692 A.2d 384 (1997), addressing an Article
7 challenge to the State's educational funding system. Consistent with
prior decisions, the Court acknowledged the federal standard, see id. at
265, 692 A.2d at 395, even as it eschewed the federal categories of
analysis. Indeed, after weighing the State's justifications for the
disparate funding of education against its impact upon public-school
students, the Court concluded; "Labels aside, we are simply unable to
fathom a legitimate governmental purpose to justify the gross inequities
in educational opportunities
evident from the record." Id. at 265, 692 A.2d at 396.
Thus, "labels aside," Vermont case law has consistently demanded in
practice that statutory exclusions from publicly-conferred benefits and
protections must be "premised on an appropriate and overriding public
interest." Ludlow, 141 Vt. at 268, 448 A.2d at 795. The rigid categories
utilized by the federal courts under the Fourteenth Amendment find no
support in our early case law and, while routinely cited, are often
effectively ignored in our more recent decisions. As discussed more fully
below, these decisions are consistent with the text and history of the
Common Benefits Clause which, similarly, yield no rigid categories or
formulas of analysis. The balancing approach utilized in Ludlow and
implicit in our recent decisions reflects the language, history, and
values at the core of the Common Benefits Clause. We turn, accordingly, to
a brief examination of constitutional language and history.
B. Text
We typically look to a variety of sources in construing our
Constitution, including the language of the provision in question,
historical context, case-law development, the construction of similar
provisions in other state constitutions, and sociological materials. See
Benning, 161 Vt. at 476, 641 A.2d 759. The Vermont Constitution was
adopted with little recorded debate and has undergone remarkably little
revision in its 200-year history. Recapturing the meaning of a particular
word or phrase as understood by a generation more than two centuries
removed from our own requires, in some respects, an immersion in the
culture and materials of the past more suited to the work of professional
historians than courts and lawyers. See generally, H. Powell, Rules for
Originalists, 73 Va. L. Rev. 659, 659-61 (1987); P. Brest, The Misconceived
Quest for the Original Understanding, 60 B.U.L. Rev. 204, 204-209 (1980).
The responsibility
of the Court, however, is distinct from that of the historian, whose
interpretation of past thought and actions necessarily informs our
analysis of current issues but cannot alone resolve them. See Powell,
supra, at 662-68; Brest, supra, at 237. As we observed in State v.
Kirchoff, 156 Vt. 1, 6, 587 A.2d 988, 992 (1991), "our duty is to discover
the core value that gave life to Article [7]." (Emphasis added). Out of
the shifting and complicated kaleidoscope of events, social forces, and
ideas that culminated in the Vermont Constitution of 1777, our task is to
distill the essence, the motivating ideal of the framers. The challenge
is to remain faithful to that historical ideal, while addressing
contemporary issues that the framers undoubtedly could never have imagined.
We first focus on the words of the Constitution themselves, for, as
Chief Justice Marshall observed, "although the spirit of an instrument,
especially of a constitution, is to be respected not less than its letter,
yet the spirit is to be collected chiefly from its words." Sturges v.
Crowningshield, 17 U.S. (4 Wheat.) 122, 202 (1819). One of the fundamental
rights included in Chapter I of the Vermont Constitution of 1777, entitled
"A Declaration of Rights of the Inhabitants of the State of Vermont," the
Common Benefits Clause as originally written provided:
That government is, or ought to be, instituted for the common
benefit, protection, and security of the people, nation or community;
and not for the particular emolument or advantage of any single
man, family or set of men, who are a part only of that community;
and that the community hath an indubitable, unalienable and
indefeasible right, to reform, alter or abolish government, in such
manner as shall be, by that community, judged most conducive to
the public weal.
Vt. Const. of 1777, ch. I, art. VI.(FN6)
The first point to be observed about the text is the affirmative and
unequivocal mandate of the first section, providing that government is
established for the common benefit of the people and community as a whole.
Unlike the Fourteenth Amendment, whose origin and language reflect the
solicitude of a dominant white society for an historically-oppressed
African-American minority (no state shall "deny" the equal protection of
the laws), the Common Benefits Clause mirrors the confidence of a
homogeneous, eighteenth-century group of men aggressively laying claim to
the same rights as their peers in Great Britain or, for that matter, New
York, New Hampshire, or the Upper Connecticut River Valley. See F.
Mahady, Toward a Theory of State Constitutional Jurisprudence: A Judge's
Thoughts, 13 Vt. L. Rev. 145, 151-52 (1988) (noting distinct eighteenth-
century origins of Article 7). The same assumption that all the people
should be afforded all the benefits and protections bestowed by government
is also reflected in the second section, which prohibits not the denial
of rights to the oppressed, but rather the conferral of advantages or
emoluments upon the privileged.(FN7)
The words of the Common Benefits Clause are revealing. While they do
not, to be sure, set forth a fully-formed standard of analysis for
determining the constitutionality of a given
statute, they do express broad principles which usefully inform that
analysis. Chief among these is the principle of inclusion. As explained
more fully in the discussion that follows, the specific proscription
against governmental favoritism toward not only groups or "set[s] of men,"
but also toward any particular "family" or "single man," underscores the
framers' resentment of political preference of any kind. The affirmative
right to the "common benefits and protections" of government and the
corollary proscription of favoritism in the distribution of public
"emoluments and advantages" reflect the framers' overarching objective
"not only that everyone enjoy equality before the law or have an equal
voice in government but also that everyone have an equal share in the
fruits of the common enterprise." W. Adams, The First American
Constitutions 188 (1980) (emphasis added). Thus, at its core the Common
Benefits Clause expressed a vision of government that afforded every
Vermonter its benefit and protection and provided no Vermonter particular
advantage.
C. Historical Context
Although historical research yields little direct evidence of the
framers' intentions, an examination of the ideological origins of the
Common Benefits Clause casts a useful light upon the inclusionary
principle at its textual core. Like other provisions of the Vermont
Constitution of 1777, the Common Benefits Clause was borrowed verbatim
from the Pennsylvania Constitution of 1776, which was based, in turn, upon
a similar provision in the Virginia Declaration of Rights of 1776. See J.
Shaeffer, A Comparison of the First Constitutions of Vermont and
Pennsylvania, 43 Vt. Hist. 33, 33-35 (1975); J. Selsam, The Pennsylvania
Constitution of 1776: A Study in Revolutionary Democracy 178 (1936). The
original Virginia clause differed from the Pennsylvania and Vermont
provisions only in the second section, which
was contained in a separate article and provided "[t]hat no man, or set of
men, are entitled to exclusive or separate emoluments or privileges from
the community, but in consideration of public services." See Virginia
Declaration of Rights, art. IV (reprinted in 11 West's Encyclopedia of
American Law 82 (1998)).(FN8)
Although aimed at Great Britain, the American Revolution -- as
numerous historians have noted -- also tapped deep-seated domestic
antagonisms. The planter elite in Virginia, the proprietors of Eastern
Pennsylvania, and New Yorkers claiming Vermont lands were each the object
of long-standing grievances. Selsam, supra, at 255-56; R. Shalhope,
Bennington and the Green Mountain Boys: The Emergence of Liberal Democracy
in Vermont, 1760-1850 at 70-97 (1996); G. Wood, The Creation of the
American Republic, 1776-1787 at 75-82 (1969). Indeed, the revolt against
Great Britain unleashed what one historian, speaking of Pennsylvania, has
called "a revolution within a revolution." Selsam, supra, at 1. By
attempting to claim equal rights for Americans against the English,
regardless of birthright or social status, "even the most aristocratic of
southern Whig planters . . . were pushed into creating an egalitarian
ideology that could be and even as early as 1776 was being turned against
themselves." Wood, supra, at 83. While not opposed to the concept of a
social elite, the framers of the first state constitutions believed that it
should consist of a "natural aristocracy" of talent, rather than an
entrenched clique favored by birth or social connections. See id. at
479-80. As the preeminent
historian of the ideological origins of the Revolution explained, "while
`equality before the law' was a commonplace of the time, `equality without
respect to the dignity of the persons concerned' was not; [the
Revolution's] emphasis on social equivalence was significant." B. Bailyn,
The Ideological Origins of the American Revolution 307 (1967). Thus,
while the framers' "egalitarian ideology" conspicuously excluded many
oppressed people of the eighteenth century -- including African-Americans,
Native Americans, and women -- it did nevertheless represent a genuine
social revolt pitting republican ideals of "virtue," or talent and merit,
against a perceived aristocracy of privilege both abroad and at home.
Vermont was not immune to the disruptive forces unleased by the
Revolution. One historian has described Vermont on the eve of the
Revolution as rife with "factional rivalry [and] regional jealousy." G.
Aichele, Making the Vermont Constitution: 1777-1824, 56 Vt. Hist. 166, 177
(1988). Competing factions in the Champlain and Upper Connecticut River
Valleys had long vied for political and economic dominance. See id. at
180. Echoing Selsam on Pennsylvania, another historian has spoken of
"Vermont's double revolution -- a rebellion within a rebellion" to describe
the successful revolt against both Great Britain and New York by the yeoman
farmers, small-scale proprietors, and moderate land speculators who
comprised the bulk of the Green Mountain Boys. D. Smith, Green Mountain
Insurgency: Transformation of New York's Forty-Year Land War, 64 Vt. Hist.
197, 197-98, 224 (1996); see also Shalhope, supra, at 169 (egalitarian
ideology of American Revolution "resonated powerfully with the visceral
feelings" of Green Mountain Boys and others in Vermont).
The powerful movement for "social equivalence" unleashed by the
Revolution ultimately found its most complete expression in the first
state constitutions adopted in the early years of
the rebellion. In Pennsylvania, where social antagonisms were most acute,
the result was a fundamental charter that has been described as "the most
radical constitution of the Revolution." Wood, supra, at 84-85; see also
Shaeffer, supra, at 35-36. Yet the Pennsylvania Constitution's
egalitarianism was arguably eclipsed the following year by the Vermont
Constitution of 1777. In addition to the commitment to government for the
"common benefit, protection, and security," it contained novel provisions
abolishing slavery, eliminating property qualifications for voting, and
calling for the governor, lieutenant governor, and twelve councilors to be
elected by the people rather than appointed by the Legislature. See
Shalhope, supra, at 171-72. These and other provisions have led one
historian to observe that Vermont's first charter was the "most democratic
constitution produced by any of the American states." See id. at 172.
The historical origins of the Vermont Constitution thus reveal that
the framers, although enlightened for their day, were not principally
concerned with civil rights for African-Americans and other minorities,
but with equal access to public benefits and protections for the community
as a whole. The concept of equality at the core of the Common Benefits
Clause was not the eradication of racial or class distinctions, but rather
the elimination of artificial governmental preferments and advantages.
The Vermont Constitution would ensure that the law uniformly afforded
every Vermonter its benefit, protection, and security so that social and
political preeminence would reflect differences of capacity, disposition,
and virtue, rather than governmental favor and privilege.(FN9)
[continues text of FN9 (see "Footnotes" below)]
D. Analysis under Article 7
The language and history of the Common Benefits Clause thus reinforce
the conclusion that a relatively uniform standard, reflective of the
inclusionary principle at its core, must govern our analysis of laws
challenged under the Clause. Accordingly, we conclude that this approach,
rather than the rigid, multi-tiered analysis evolved by the federal courts
under the Fourteenth Amendment, shall direct our inquiry under Article 7.
As noted, Article 7 is intended to ensure that the benefits and
protections conferred by the State are for the common benefit of the
community and are not for the advantage of persons "who are a part only of
that community." When a statute is challenged under Article 7, we first
define that "part of the community" disadvantaged by the law. We examine
the statutory basis that distinguishes those protected by the law from
those excluded from the State's protection. Our concern here is with
delineating, not with labelling the excluded class as "suspect,"
"quasi-suspect," or "non-suspect" for purposes of determining different
levels of judicial scrutiny.(FN10)
We look next to the government's purpose in drawing a classification
that includes some members of the community within the scope of the
challenged law but excludes others. Consistent with Article 7's guiding
principle of affording the protection and benefit of the law to all members
of the Vermont community, we examine the nature of the classification to
determine whether it is reasonably necessary to accomplish the State's
claimed objectives.
We must ultimately ascertain whether the omission of a part of the
community from the benefit, protection and security of the challenged law
bears a reasonable and just relation to the governmental purpose.
Consistent with the core presumption of inclusion, factors to be considered
in this determination may include: (1) the significance of the benefits and
protections of the challenged law; (2) whether the omission of members of
the community from the benefits and protections of the challenged law
promotes the government's stated goals; and (3) whether the classification
is significantly underinclusive or overinclusive. As Justice Souter has
observed in a different context, this approach necessarily "calls for a
court to assess the relative `weights' or dignities of the contending
interests." Washington v. Glucksberg, 521 U.S. 702, 767 (1997) (Souter,
J., concurring). What keeps that assessment grounded and objective, and
not based upon the private sensitivities or values of individual judges,
is that in assessing the relative weights of competing interests courts
must look to the history and "`traditions from which [the State]
developed'" as well as those "`from which it broke,'" id. at 767 (quoting
Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)), and not
to merely personal notions. Moreover, the process of review is
necessarily "one of close criticism going to the details of the opposing
interests and their relationships with the historically recognized
principles that lend them weight or value." Id. at 769 (emphasis
added).(FN11)
Ultimately, the answers to these questions, however useful, cannot
substitute for "`[t]he inescapable fact . . . that adjudication of . .
. claims may call upon the Court in interpreting the Constitution to
exercise that same capacity which by tradition courts always have
exercised: reasoned judgment.'" Id. (quoting Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833, 849 (1992)). The balance between
individual liberty and organized society which courts are continually
called upon to weigh does not lend itself to the precision of a scale. It
is, indeed, a recognition of the imprecision of "reasoned judgment" that
compels both judicial restraint and respect for tradition in
constitutional interpretation.(FN12)
E. The Standard Applied
With these general precepts in mind, we turn to the question of
whether the exclusion of same-sex couples from the benefits and
protections incident to marriage under Vermont law
contravenes Article 7. The first step in our analysis is to identify
the nature of the statutory classification. As noted, the marriage
statutes apply expressly to opposite-sex couples. Thus, the statutes
exclude anyone who wishes to marry someone of the same sex.(FN13)
Next, we must identify the governmental purpose or purposes to be
served by the statutory classification. The principal purpose the State
advances in support of the excluding same-sex couples from the legal
benefits of marriage is the government's interest in "furthering the link
between procreation and child rearing." The State has a strong interest,
it argues, in promoting a permanent commitment between couples who have
children to ensure that their offspring are considered legitimate and
receive ongoing parental support. The State contends, further, that the
Legislature could reasonably believe that sanctioning same-sex unions
"would diminish society's perception of the link between procreation and
child rearing . . . [and] advance the notion that fathers or mothers .
. . are mere surplusage to the functions of procreation and child
rearing." The State argues that since same-sex couples cannot conceive
a child on their own, state-sanctioned same-sex unions "could be seen by
the Legislature to separate further the connection between procreation and
parental responsibilities for raising children." Hence, the Legislature is
justified, the State concludes, "in using the marriage statutes to send a
public message that procreation and child rearing are intertwined."
Do these concerns represent valid public interests that are reasonably
furthered by the exclusion of same-sex couples from the benefits and
protections that flow from the marital relation? It is beyond dispute that
the State has a legitimate and long-standing interest in promoting a
permanent commitment between couples for the security of their children. It
is equally undeniable that the State's interest has been advanced by
extending formal public sanction and protection to the union, or marriage,
of those couples considered capable of having children, i.e., men and
women. And there is no doubt that the overwhelming majority of births
today continue to result from natural conception between one man and one
woman. See J. Robertson, Assisted Reproductive Technology and the Family,
47 Hast. L. J. 911, 911-12 (1996) (noting the number of births resulting
from assisted-reproductive technology, which remain small compared to
overall number of births).
It is equally undisputed that many opposite-sex couples marry for
reasons unrelated to procreation, that some of these couples never intend
to have children, and that others are incapable of having children.
Therefore, if the purpose of the statutory exclusion of same-sex couples is
to "further[] the link between procreation and child rearing," it is
significantly under-inclusive. The law extends the benefits and
protections of marriage to many persons with no logical connection to the
stated governmental goal.
Furthermore, while accurate statistics are difficult to obtain, there
is no dispute that a
significant number of children today are actually being raised by same-sex
parents, and that increasing numbers of children are being conceived by
such parents through a variety of assisted-reproductive techniques. See
D. Flaks, et al., Lesbians Choosing Motherhood: A Comparative Study of
Lesbian and Heterosexual Parents and Their Children, 31 Dev. Psychol. 105,
105 (1995) (citing estimates that between 1.5 and 5 million lesbian
mothers resided with their children in United States between 1989 and
1990, and that thousands of lesbian mothers have chosen motherhood through
donor insemination or adoption); G. Green and F. Bozett, Lesbian Mothers
and Gay Fathers, in Homosexuality: Research Implications for Public Policy
197, 198 (J. Gonsiorek et al. eds., 1991) (estimating that numbers of
children of either gay fathers or lesbian mothers range between six and
fourteen million); C. Patterson, Children of the Lesbian Baby Boom:
Behavioral Adjustment, Self-Concepts, and Sex Role Identity, in Lesbian and
Gay Psychology (B. Greene et al. eds., 1994) (observing that although
precise estimates are difficult, number of families with lesbian mothers
is growing); E. Shapiro & L. Schultz, Single-Sex Families: The Impact of
Birth Innovations Upon Traditional Family Notions, 24 J. Fam. L. 271, 281
(1985) ("[I]t is a fact that children are being born to single-sex families
on a biological basis, and that they are being so born in considerable
numbers").
Thus, with or without the marriage sanction, the reality today is that
increasing numbers of same-sex couples are employing increasingly
efficient assisted-reproductive techniques to conceive and raise children.
See L. Ikemoto, The In/Fertile, the Too Fertile, and the Dysfertile, 47
Hast. L. J. 1007, 1056 & n.170 (1996). The Vermont Legislature has not
only recognized this reality, but has acted affirmatively to remove legal
barriers so that same-sex couples may legally adopt and rear the children
conceived through such efforts. See 15A V.S.A. § 1-102(b)
(allowing partner of biological parent to adopt if in child's best
interest without reference to sex). The State has also acted to expand
the domestic relations laws to safeguard the interests of same-sex parents
and their children when such couples terminate their domestic
relationship. See 15A V.S.A. § 1-112 (vesting family court with
jurisdiction over parental rights and responsibilities, parent-child
contact, and child support when unmarried persons who have adopted minor
child "terminate their domestic relationship").
Therefore, to the extent that the State's purpose in licensing civil
marriage was, and is, to legitimize children and provide for their
security, the statutes plainly exclude many same-sex couples who are no
different from opposite-sex couples with respect to these objectives. If
anything, the exclusion of same-sex couples from the legal protections
incident to marriage exposes their children to the precise risks that the
State argues the marriage laws are designed to secure against. In short,
the marital exclusion treats persons who are similarly situated for
purposes of the law, differently.
The State also argues that because same-sex couples cannot conceive a
child on their own, their exclusion promotes a "perception of the link
between procreation and child rearing," and that to discard it would
"advance the notion that mothers and fathers . . . are mere surplusage
to the functions of procreation and child rearing" Apart from the bare
assertion, the State offers no persuasive reasoning to support these
claims. Indeed, it is undisputed that most of those who utilize
non-traditional means of conception are infertile married couples, see
Shapior and Schultz, supra, at 275, and that many assisted-reproductive
techniques involve only one of the married partner's genetic material, the
other being supplied by a third party through sperm, egg, or embryo
donation. See E. May, Barren in the Promised Land: Childless
Americans and the Pursuit of Happiness, 217, 242 (1995); Robertson, supra,
at 911-12, 922-27. The State does not suggest that the use of these
technologies undermines a married couple's sense of parental
responsibility, or fosters the perception that they are "mere surplusage"
to the conception and parenting of the child so conceived. Nor does it
even remotely suggest that access to such techniques ought to be restricted
as a matter of public policy to "send a public message that procreation and
child rearing are intertwined." Accordingly, there is no reasonable basis
to conclude that a same-sex couple's use of the same technologies would
undermine the bonds of parenthood, or society's perception of parenthood.
The question thus becomes whether the exclusion of a relatively small
but significant number of otherwise qualified same-sex couples from the
same legal benefits and protections afforded their opposite-sex
counterparts contravenes the mandates of Article 7. It is, of course,
well settled that statutes are not necessarily unconstitutional because
they fail to extend legal protection to all who are similarly situated.
See Benning, 161 Vt. at 486, 641 A.2d at 764 ("A statute need not regulate
the whole of a field to pass constitutional muster."). Courts have upheld
underinclusive statutes out of a recognition that, for reasons of
pragmatism or administrative convenience, the legislature may choose to
address problems incrementally. See, e.g., City of New Orleans v. Dukes,
427 U.S. 297, 303 (1976) (legislature may adopt regulations "that only
partially ameliorate a perceived evil"); Williamson v. Lee Optical of
Okla., Inc., 348 U.S. 483, 489 (1955) ("The legislature may select one
phase of one field and apply a remedy there, neglecting the others.").
The State does not contend, however, that the same-sex exclusion is
necessary as a matter of pragmatism or administrative convenience. We
turn, accordingly, from the principal justifications advanced by the State
to the interests asserted
by plaintiffs.
As noted, in determining whether a statutory exclusion reasonably
relates to the governmental purpose it is appropriate to consider the
history and significance of the benefits denied. See Glucksberg, 521 U.S.
at 710 (to assess importance of rights and interests affected by statutory
classifications, courts must look to "history, legal traditions and
practices"). What do these considerations reveal about the benefits and
protections at issue here? In Loving v. Virginia, 388 U.S. 1, 12 (1967),
the United States Supreme Court, striking down Virginia's anti-
miscegenation law, observed that "[t]he freedom to marry has long been
recognized as one of the vital personal rights." The Court's point was
clear; access to a civil marriage license and the multitude of legal
benefits, protections, and obligations that flow from it significantly
enhance the quality of life in our society.
The Supreme Court's observations in Loving merely acknowledged what
many states, including Vermont, had long recognized. One hundred
thirty-seven years before Loving, this Court characterized the reciprocal
rights and responsibilities flowing from the marriage laws as "the natural
rights of human nature." See Overseers of the Poor, 2 Vt. at 159.
Decisions in other New England states noted the unique legal and economic
ramifications flowing from the marriage relation. See, e.g., Adams v.
Palmer, 51 Maine 481, 485 (Me. 1863) ("it establishes fundamental and most
important domestic relations"). Early decisions recognized that a marriage
contract, although similar to other civil agreements, represents much more
because once formed, the law imposes a variety of obligations,
protections, and benefits. As the Maine Supreme Judicial Court observed,
the rights and obligations of marriage rest not upon contract, "but upon
the general law of the State, statutory or common, which defines and
prescribes those
rights duties and obligations. They are of law, not contract." See id. at
483; see also Ditson v. Ditson, 4 R.I. 87, 105 (1856) (marriage transcends
contract because "it gives rights, and imposes duties and restrictions upon
the parties to it"). In short, the marriage laws transform a private
agreement into a source of significant public benefits and protections.
While the laws relating to marriage have undergone many changes during
the last century, largely toward the goal of equalizing the status of
husbands and wives, the benefits of marriage have not diminished in value.
On the contrary, the benefits and protections incident to a marriage
license under Vermont law have never been greater. They include, for
example, the right to receive a portion of the estate of a spouse who dies
intestate and protection against disinheritance through elective share
provisions, under 14 V.S.A. §§ 401-404, 551; preference in being appointed
as the personal representative of a spouse who dies intestate, under 14
V.S.A. § 903; the right to bring a lawsuit for the wrongful death of a
spouse, under 14 V.S.A. § 1492; the right to bring an action for loss of
consortium, under 12 V.S.A. § 5431; the right to workers' compensation
survivor benefits under 21 V.S.A. § 632; the right to spousal benefits
statutorily guaranteed to public employees, including health, life,
disability, and accident insurance, under 3 V.S.A. § 631; the opportunity
to be covered as a spouse under group life insurance policies issued to an
employee, under 8 V.S.A. § 3811; the opportunity to be covered as the
insured's spouse under an individual health insurance policy, under 8
V.S.A. § 4063; the right to claim an evidentiary privilege for marital
communications, under V.R.E. 504; homestead rights and protections, under
27 V.S.A. §§ 105-108, 141-142; the presumption of joint ownership of
property and the concomitant right of survivorship, under 27 V.S.A. § 2;
hospital visitation and other rights incident to the medical treatment of
a family member, under
18 V.S.A. § 1852; and the right to receive, and the obligation to provide,
spousal support, maintenance, and property division in the event of
separation or divorce, under 15 V.S.A. §§ 751-752. Other courts and
commentators have noted the collection of rights, powers, privileges, and
responsibilities triggered by marriage. See generally Baehr v. Lewin, 852
P.2d 44, 59 (Haw. 1993); D. Chambers, What If? The Legal Consequences of
Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L.
Rev. 447, passim; J. Robbenolt & M. Johnson, Legal Planning for Unmarried
Committed Parties: Empirical Lessons for a Preventive and Therapeutic
Approach, 41 Ariz. L. Rev. 417, passim (1999); J. Trosino, American
Wedding: Same-Sex Marriage and the Miscegenation Analogy, 73 B.U.L. Rev.
93, 96 (1993).
While other statutes could be added to this list, the point is clear.
The legal benefits and protections flowing from a marriage license are of
such significance that any statutory exclusion must necessarily be
grounded on public concerns of sufficient weight, cogency, and authority
that the justice of the deprivation cannot seriously be questioned.
Considered in light of the extreme logical disjunction between the
classification and the stated purposes of the law -- protecting children
and "furthering the link between procreation and child rearing" -- the
exclusion falls substantially short of this standard. The laudable
governmental goal of promoting a commitment between married couples to
promote the security of their children and the community as a whole
provides no reasonable basis for denying the legal benefits and protections
of marriage to same-sex couples, who are no differently situated with
respect to this goal than their opposite-sex counterparts. Promoting a
link between procreation and childrearing similarly fails to support the
exclusion. We turn, accordingly, to the remaining interests identified by
the State in support of the statutory exclusion.
The State asserts that a number of additional rationales could support
a legislative decision to exclude same-sex partners from the statutory
benefits and protections of marriage. Among these are the State's
purported interests in "promoting child rearing in a setting that provides
both male and female role models," minimizing the legal complications of
surrogacy contracts and sperm donors, "bridging differences" between the
sexes, discouraging marriages of convenience for tax, housing or other
benefits, maintaining uniformity with marriage laws in other states, and
generally protecting marriage from "destabilizing changes." The most
substantive of the State's remaining claims relates to the issue of
childrearing. It is conceivable that the Legislature could conclude that
opposite-sex partners offer advantages in this area, although we note that
child-development experts disagree and the answer is decidedly uncertain.
The argument, however, contains a more fundamental flaw, and that is the
Legislature's endorsement of a policy diametrically at odds with the
State's claim. In 1996, the Vermont General Assembly enacted, and the
Governor signed, a law removing all prior legal barriers to the adoption
of children by same-sex couples. See 15A V.S.A. § 1-102. At the same
time, the Legislature provided additional legal protections in the form of
court-ordered child support and parent-child contact in the event that
same-sex parents dissolved their "domestic relationship." Id. § 1-112.
In light of these express policy choices, the State's arguments that
Vermont public policy favors opposite-sex over same-sex parents or
disfavors the use of artificial reproductive technologies, are patently
without substance.
Similarly, the State's argument that Vermont's marriage laws serve a
substantial governmental interest in maintaining uniformity with other
jurisdictions cannot be reconciled with Vermont's recognition of unions,
such as first-cousin marriages, not uniformly sanctioned
in other states. See 15 V.S.A. §§ 1-2 (consanguinity statutes do not
exclude first cousins); 1 H. Clark, The Law of Domestic Relations in the
United States § 2.9, at 153-54 (2d ed. 1987) (noting states that prohibit
first-cousin marriage). In an analogous context, Vermont has sanctioned
adoptions by same-sex partners, see 15A V.S.A. § 1-102, notwithstanding
the fact that many states have not. See generally, Annotation, Adoption
of Child By Same-Sex Partners, 27 A.L.R.5th 54, 68-72 (1995). Thus, the
State's claim that Vermont's marriage laws were adopted because the
Legislature sought to conform to those of the other forty-nine states is
not only speculative, but refuted by two relevant legislative choices
which demonstrate that uniformity with other jurisdictions has not been a
governmental purpose.
The State's remaining claims (e.g., recognition of same-sex unions
might foster marriages of convenience or otherwise affect the institution
in "unpredictable" ways) may be plausible forecasts as to what the future
may hold, but cannot reasonably be construed to provide a reasonable and
just basis for the statutory exclusion. The State's conjectures are not,
in any event, susceptible to empirical proof before they occur.(FN14)
Finally, it is suggested that the long history of official intolerance
of intimate same-sex relationships cannot be reconciled with an
interpretation of Article 7 that would give state-sanctioned benefits and
protection to individuals of the same sex who commit to a permanent
domestic relationship. We find the argument to be unpersuasive for several
reasons. First, to
the extent that state action historically has been motivated by an animus
against a class, that history cannot provide a legitimate basis for
continued unequal application of the law. See MacCallum, 165 Vt. at
459-60, 686 A.2d at 939 (holding that although adopted persons had
"historically been a target of discrimination," social prejudices failed
to support their continued exclusion from intestacy law). As we observed
recently in Brigham, 166 Vt. at 267, 692 A.2d at 396, "equal protection of
the laws cannot be limited by eighteenth-century standards." Second,
whatever claim may be made in light of the undeniable fact that federal
and state statutes -- including those in Vermont -- have historically
disfavored same-sex relationships, more recent legislation plainly
undermines the contention. See, e.g., Laws of Vermont, 1977, No. 51, § 2,
3 (repealing former § 2603 of Title 13, which criminalized fellatio). In
1991, Vermont was one of the first states to enact statewide legislation
prohibiting discrimination in employment, housing, and other services based
on sexual orientation. See 21 V.S.A. § 495 (employment); 9 V.S.A. § 4503
(housing); 8 V.S.A. § 4724 (insurance); 9 V.S.A. § 4502 (public
accommodations). Sexual orientation is among the categories specifically
protected against hate-motivated crimes in Vermont. See 13 V.S.A. § 1455.
Furthermore, as noted earlier, recent enactments of the General Assembly
have removed barriers to adoption by same-sex couples, and have extended
legal rights and protections to such couples who dissolve their "domestic
relationship." See 15A V.S.A. §§ 1-102, 1-112.
Thus, viewed in the light of history, logic, and experience, we
conclude that none of the interests asserted by the State provides a
reasonable and just basis for the continued exclusion of same-sex couples
from the benefits incident to a civil marriage license under Vermont law.
Accordingly, in the faith that a case beyond the imagining of the framers
of our Constitution
may, nevertheless, be safely anchored in the values that infused it, we
find a constitutional obligation to extend to plaintiffs the common
benefit, protection, and security that Vermont law provides opposite-sex
married couples. It remains only to determine the appropriate means and
scope of relief compelled by this constitutional mandate.
F. Remedy
It is important to state clearly the parameters of today's ruling.
Although plaintiffs sought injunctive and declaratory relief designed to
secure a marriage license, their claims and arguments here have focused
primarily upon the consequences of official exclusion from the statutory
benefits, protections, and security incident to marriage under Vermont
law. While some future case may attempt to establish that --
notwithstanding equal benefits and protections under Vermont law -- the
denial of a marriage license operates per se to deny constitutionally-
protected rights, that is not the claim we address today.
We hold only that plaintiffs are entitled under Chapter I, Article 7,
of the Vermont Constitution to obtain the same benefits and protections
afforded by Vermont law to married opposite-sex couples. We do not
purport to infringe upon the prerogatives of the Legislature to craft an
appropriate means of addressing this constitutional mandate, other than to
note that the record here refers to a number of potentially constitutional
statutory schemes from other jurisdictions. These include what are
typically referred to as "domestic partnership" or "registered
partnership" acts, which generally establish an alternative legal status to
marriage for same-sex couples, impose similar formal requirements and
limitations, create a parallel licensing or registration scheme, and
extend all or most of the same rights and obligations provided by the law
to married partners. See Report, Hawaii Commission on Sexual Orientation
and the Law (Appendix D-1B) (1995) (recommending enactment of "Universal
Comprehensive Domestic Partnership Act" to establish equivalent licensing
and eligibility scheme and confer upon domestic partners "the same rights
and obligations under the law that are conferred on spouses in a marriage
relationship") (emphasis added); C. Christensen, If Not Marriage? On
Securing Gay and Lesbian Family Values by a "Simulacrum of Marriage", 66
Fordham L. Rev. 1699, 1734-45 (1998) (discussing various domestic and
foreign domestic partnership acts); A. Friedman, Same-Sex Marriage and the
Right to Privacy: Abandoning Scriptural, Canonical, and Natural Law Based
Definitions of Marriage, 35 How. L. J. 173, 217-220 n. 237 (reprinting
Denmark's "Registered Partnership Act"); see generally, Note, A More
Perfect Union: A Legal and Social Analysis of Domestic Partnership
Ordinances, 92 Colum. L. Rev. 1164 (1992) (discussing local domestic
partnership laws); M. Pedersen, Denmark: Homosexual Marriage and New Rules
Regarding Separation and Divorce, 30 J. Fam. L. 289 (1992) (discussing
amendments to Denmark's Registered Partnership Act); M. Roth, The
Norwegian Act on Registered Partnership for Homosexual Couples, 35 J. Fam.
L. 467 (1997) (discussing Norway's Act on Registered Partnership for
Homosexual Couples). We do not intend specifically to endorse any one or
all of the referenced acts, particularly in view of the significant
benefits omitted from several of the laws.
Further, while the State's prediction of "destabilization" cannot be a
ground for denying relief, it is not altogether irrelevant. A sudden
change in the marriage laws or the statutory benefits traditionally
incidental to marriage may have disruptive and unforeseen consequences.
Absent legislative guidelines defining the status and rights of same-sex
couples, consistent with constitutional requirements, uncertainty and
confusion could result. Therefore, we hold that the
current statutory scheme shall remain in effect for a reasonable period of
time to enable the Legislature to consider and enact implementing
legislation in an orderly and expeditious fashion.(FN15) See Linkletter v.
Walker, 381 U.S. 618, 628 (1965) (no constitutional rule impedes court's
discretion to postpone operative date of ruling where exigencies require);
Smith v. State, 473 P.2d 937, 950 (Idaho 1970) (staying operative effect
of decision abrogating rule of sovereign immunity until adjournment of
next legislative session); Spanel v. Mounds View School Dist. No. 621, 118
N.W.2d 795, 803-04 (Minn. 1962) (same). In the event that the benefits and
protections in question are not statutorily granted, plaintiffs may
petition this Court to order the remedy they originally sought.
Our colleague asserts that granting the relief requested by plaintiffs
-- an injunction prohibiting defendants from withholding a marriage
license -- is our "constitutional duty." Post, at 3. (Johnson, J.,
concurring in part and dissenting in part). We believe the argument is
predicated upon a fundamental misinterpretation of our opinion. It appears
to assume that we hold plaintiffs are entitled to a marriage license. We
do not. 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. That the State could do so through a marriage
license is obvious. But it is not required to do so, and the mandate
proposed by our colleague is inconsistent with the Court's holding.
The dissenting and concurring opinion also invokes the United States
Supreme Court's
desegregation decision in Watson v. City of Memphis, 373 U.S. 526 (1963),
suggesting that the circumstances here are comparable, and demand a
comparable judicial response. The analogy is flawed. We do not confront
in this case the evil that was institutionalized racism, an evil that was
widely recognized well before the Court's decision in Watson and its more
famous predecessor, Brown v. Board of Education, 347 U.S. 483 (1954).
Plaintiffs have not demonstrated that the exclusion of same-sex couples
from the definition of marriage was intended to discriminate against women
or lesbians and gay men, as racial segregation was designed to maintain the
pernicious doctrine of white supremacy. See Loving, 388 U.S. at 11
(holding anti-miscegenation statutes violated Equal Protection Clause as
invidious effort to maintain white supremacy). The concurring and
dissenting opinion also overlooks the fact that the Supreme Court's urgency
in Watson was impelled by the City's eight year delay in implementing its
decision extending Brown to public recreational facilities, and "the
significant fact that the governing constitutional principles no longer
bear the imprint of newly enunciated doctrine." See Watson, 373 U.S. at
529; Dawson v. Mayor and City Council of Baltimore, 220 F.2d 386, aff'd,
350 U.S. 877 (1955). Unlike Watson, our decision declares decidedly new
doctrine.
The concurring and dissenting opinion further claims that our mandate
represents an "abdicat[ion]" of the constitutional duty to decide, and an
inexplicable failure to implement "the most straightforward and effective
remedy." Post, at 3, 10. Our colleague greatly underestimates what we
decide today and greatly overestimates the simplicity and effectiveness of
her proposed mandate. First, our opinion provides greater recognition of
-- and protection for -- same sex relationships than has been recognized
by any court of final jurisdiction in this
country with the instructive exception of the Hawaii Supreme Court in
Baehr, 825 P.2d 44. See Hawaii Const., art. I, § 23 (state
constitutional amendment overturned same-sex marriage decision in Baehr by
returning power to Legislature "to reserve marriage to opposite-sex
couples"). Second, the dissent's suggestion that her mandate would avoid
the "political caldron" (post, at 4) of public debate is -- even allowing
for the welcome lack of political sophistication of the judiciary --
significantly insulated from reality. See Hawaii Const., art. I, § 23; see
also Alaska Const., art. I, § 25 (state constitutional amendment reversed
trial court decision in favor of same-sex marriage, Brause v. Bureau of
Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super. Ct.
Feb. 27, 1998), by providing that "a marriage may exist only between one
man and one woman").
The concurring and dissenting opinion confuses decisiveness with
wisdom and judicial authority with finality. Our mandate is predicated
upon a fundamental respect for the ultimate source of constitutional
authority, not a fear of decisiveness. No court was ever more decisive
than the United States Supreme Court in Dred Scott, 60 U.S. (19 How.) 393
(1857). Nor more wrong. Ironically it was a Vermonter, Stephen Douglas,
who in defending the decision said -- as the dissent in essence does here
-- "I never heard before of an appeal being taken from the Supreme Court."
See A. Bickel, The Morality of Consent 101 (1975). But it was a profound
understanding of the law and the "unruliness of the human condition," id.
at 11, that prompted Abraham Lincoln to respond that the Court does not
issue Holy Writ. See id. at 101. Our colleague may be correct that a
mandate intended to provide the Legislature with the opportunity to
implement the holding of this Court in an orderly and expeditious fashion
will have precisely the opposite effect. Yet it cannot be doubted that
judicial authority is not ultimate authority.
It is certainly not the only repository of wisdom.
When a democracy is in moral flux, courts may not have the best or
the final answers. Judicial answers may be wrong. They may be
counterproductive even if they are right. Courts do best by
proceeding in a way that is catalytic rather than preclusive and
that is closely attuned to the fact that courts are participants
in the system of democratic deliberation.
C. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 6, 101
(1996).
The implementation by the Vermont Legislature of a constitutional
right expounded by this Court pursuant to the Vermont Constitution for the
common benefit and protection of the Vermont community is not an
abdication of judicial duty, it is the fulfillment of constitutional
responsibility.
III. Conclusion
While many have noted the symbolic or spiritual significance of the
marital relation, it is plaintiffs' claim to the secular benefits and
protections of a singularly human relationship that, in our view,
characterizes this case. The State's interest in extending official
recognition and legal protection to the professed commitment of two
individuals to a lasting relationship of mutual affection is predicated on
the belief that legal support of a couple's commitment provides stability
for the individuals, their family, and the broader community. Although
plaintiffs' interest in seeking state recognition and protection of their
mutual commitment may -- in view of divorce statistics -- represent "the
triumph of hope over experience,"(FN16) the essential aspect of their claim
is simply and fundamentally for inclusion in the family of
State-sanctioned human relations.
The past provides many instances where the law refused to see a human
being when it should have. See, e.g., Dred Scott, 60 U.S. at 407
(concluding that African slaves and their descendants had "no rights which
the white man was bound to respect"). The future may provide instances
where the law will be asked to see a human when it should not. See, e.g.,
G. Smith, Judicial Decisionmaking in the Age of Biotechnology, 13 Notre
Dame J. Ethics & Pub. Policy 93, 114 (1999) (noting concerns that
genetically engineering humans may threaten very nature of human
individuality and identity). The challenge for future generations will be
to define what is most essentially human. 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.
The judgment of the superior court upholding the constitutionality of
the Vermont marriage statutes under Chapter I, Article 7 of the Vermont
Constitution is reversed. The effect of the Court's decision is
suspended, and jurisdiction is retained in this Court, to permit the
Legislature to consider and enact legislation consistent with the
constitutional mandate described herein.
FOR THE COURT:
_______________________________________
Chief Justice
-----------------------------------------------------------------------------
Footnotes
FN1. In their motions, each of the parties presented the trial court
with extensive extra-pleading facts and materials, including legislative
history, scientific data, and sociological and psychological studies. See
V.R.C.P. 12(b) & (c) (motion treated as one for summary judgment where
"matters outside the pleadings are presented to and not excluded by the
court"); Fitzgerald v. Congleton, 155 Vt. 283, 293-94, 583 A.2 595, 601
(1990) (court effectively converted motion to dismiss into motion for
summary judgment where it considered matters outside pleadings and parties
had reasonable opportunity to submit extra-pleading materials). The
parties have continued to rely on these materials on appeal. In addition,
the Court has received numerous amicus curiae briefs, representing a broad
array of interests, supportive of each of the parties.
FN2. Although plaintiffs raise a number of additional arguments based
on both the United States and the Vermont Constitutions, our resolution of
the Common Benefits claim obviates the necessity to address them.
FN3. Conventional equal protection analysis under the Fourteenth
Amendment employs three "tiers" of judicial review based upon the nature
of the right or the class affected. See generally, Cleburne v. Cleburne
Living Center, Inc., 473 U.S. 432, 440-41 (1985); 3 R. Rotunda & J. Nowak,
Treatise on Constitutional Law § 18.3, at 216-10 (3d ed. 1999). The first
step in that analysis is to categorize the class affected as more or less
similar to race based upon certain judicially-developed criteria. See
Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272 (1979); see
generally, J. Baer, Equality Under the Constitution: Reclaiming the
Fourteenth Amendment 253-64 (1983); C. Sunstein, The Anticaste Principle,
92 Mich. L. Rev. 2410, 2441-44 (1994). If a legislative classification
implicates a "suspect" class, generally defined in terms of historical
discrimination, political powerlessness, or immutable characteristics, the
law is subject to strict scrutiny, and the state must demonstrate that it
furthers a compelling governmental interest that could not be accomplished
by less restrictive means. In addition to race (the original suspect
class), alienage and national origin have also been recognized as suspect.
See Cleburne, 473 U.S. at 440. The United States Supreme Court has
created a "middle-tier" level of review for legislative classifications
based on gender or illegitimacy; laws affecting these groups must be
substantially related to a sufficiently important governmental interest to
withstand constitutional scrutiny. See id. The balance of legislative
enactments, including nearly all economic and commercial legislation, are
presumptively constitutional and will be upheld if rationally related to
any conceivable, legitimate governmental interest. See Minnesota v. Clover
Leaf Creamery Co., 449 U.S. 456, 466 (1981); see also Cleburne, 473 U.S.
at 440. Thus, as one commentator has explained, rationality review may be
"used to uphold laws justified even by hypothesized or ad hoc state
interests." J. Wexler, Defending the Middle Way: Intermediate Scrutiny as
Judicial Minimalism, 66 Geo. Wash. L. Rev. 298, 300 (1998).
FN4. In this respect, Ludlow was consistent with an older line of
Vermont decisions which, albeit in the Fourteenth Amendment context,
routinely subjected laws involving economic classifications to a
relatively straightforward reasonableness evaluation, explicitly balancing
the rights of the affected class against the State's proffered rationale.
See, e.g., State v. Hoyt, 71 Vt. 59, 64, 42 A. 973, 975 (1899)
(peddler-licensing classifications must be "based on some reasonable
ground, some difference that bears a just and proper relation to the
attempted classification, and is not a mere arbitrary selection"); State
v. Cadigan, 73 Vt. 245, 252, 50 A. 1079, 1081 (1901) (State must establish
"reasonable basis" to support law distinguishing between business
partnerships organized in Vermont and those formed in other states); State
v. Haskell, 84 Vt. 429, 437, 75 A. 852, 856 (1911) (mill regulation must
be "based upon some difference having a reasonable and just relation to
the object sought"). These opinions are notable for their detailed
examination of the context and purposes of the challenged legislation, the
impact on the affected class, and the logical fit between the statutory
classification and the public ends to be achieved.
FN5. Cass Sunstein, among others, has documented the United States
Supreme Court's unacknowledged departures from the deferential
rational-basis standard without defining a new kind of scrutiny. See C.
Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 6, 59-61
(1996). These cases include Romer v. Evans, 517 U.S. 620, 635 (1996)
(holding Colorado statute that banned state or local laws forbidding
sexual-orientation discrimination was not rationally related to legitimate
governmental objective), City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 450 (1985) (applying rational basis review, Court
invalidated zoning discrimination against mentally retarded as based on
"irrational prejudice"), and United States Dept. of Agriculture v. Moreno,
413 U.S. 528, 534 (1973) (invalidating regulation that excluded non-family
members of household from food stamp program). In each of these
decisions, the Court employed a highly contextual, fact-based analysis
balancing private rights and public interests even while ostensibly
applying minimal rational basis review. Conversely, in Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995), the high court
itself questioned the notion that strict scrutiny was inevitably "fatal in
fact." See G. Gunther, The Supreme Court, 1971 Term -- Foreword: In Search
of Evolving Doctrine on a Changing Court: A Model for a New Equal
Protection, 86 Harv. L. Rev. 1, 8 (1972) (observing that strict scrutiny
is generally "`strict' in theory and fatal in fact"). Viewed together,
these cases have prompted one commentator to suggest that "[t]he hard edges
of the tripartite division have thus softened," and that the Court has
moved "toward general balancing of relevant interests." Sunstein, supra,
at 77.
FN6. The current version differs from the original only in that the
gender-neutral terms "person" and "persons" have been substituted for
"man" and "men." See Vt. Const., Ch. II § 76. This revision was not
intended to "alter the sense, meaning or effect of the" provision. Id.
FN7. There is little doubt as to the obligatory nature of the Common
Benefits Clause, which provides that "government is, or ought to be,
instituted for the common benefit, protection, and security . . . ."
(Emphasis added). Indeed the State does not argue that it is merely
hortatory or aspirational in effect, an argument that would not be
persuasive in any event. See Brigham, 166 Vt. at 261-62, 692 A.2d at
393-94 (1997) (framers "drew no distinction between `ought' and `shall' in
defining rights and duties").
FN8. The use of the word "family" in the Pennsylvania Common Benefits
Clause reflects Pennsylvania's history, where elite "proprietors"
including the Penns and other established families, had long dominated
colonial politics, religion, and economic interests. The revolt against
Great Britain presented an opportunity for western Pennsylvania farmers,
urban gentry, and dissenting Presbyterians nursing "deep seated and
long-felt grievances" to end Eastern domination of the colony, and
establish a more democratic form of government. See Selsam, supra, at 1,
255-56.
FN9. This Court has noted that interpretations of similar
constitutional provisions from other states may be instructive in
understanding our own. See Benning, 161 Vt. at 476, 641 A.2d at 759.
"Common Benefits" decisions from other states, however, are scarce.
Pennsylvania eliminated the Common Benefits Clause when it replaced its
constitution in 1790, and Virginia courts have not explored in any depth
the meaning of its clause. The New Hampshire Constitution of 1783 also
included a common benefits section substantially similar to Vermont's. See
N.H. Const., Pt. 1, art. 10. Although New Hampshire courts have not
developed an independent Common Benefits jurisprudence, several early New
Hampshire decisions noted the provision's significance. See State v.
Pennoyer, 18 A.2d 878, 881 (1889) (relying on Common Benefits Clause to
strike down physician-licensing statute that exempted physicians who had
resided in one place for four years); Rosenblum v. Griffin, 197 A. 701,
706 (1938) (noting that under Common Benefits Clause, "[e]quality of
benefit is no less required than equality of burden. Otherwise equal
protection is denied"). Massachusetts included a variation on Vermont's
Common Benefits Clause in its Constitution of 1780, as well as a separate
"emoluments" provision. See Mass. Const., Pt. 1, arts. VI & VII (adopted
1780). Massachusetts has not relied on the Common Benefits provision as a
separate source of equal protections rights. See Town of Brookline v.
Secretary of Com., 631 N.E.2d 968, 978 n.19 (Mass. 1994).
In the nineteenth century, a number of additional states adopted
variations on the Common Benefits Clause. See, e.g., Conn. Const. of
1818, art. 1, § 2 ("[A]ll political power is inherent in the people, and
all free governments are founded on their authority, and instituted for
their benefit."); Ohio Const. of 1851, art. 1, § 2 ("All political power
is inherent in the people. Government is instituted for their equal
protection and benefit."); W. Va. Const. Const., art. III, § 3 (adopted
1872) ("Government is instituted for the common benefit, protection and
security of the people, nation or community."). Even assuming that
provisions enacted in the nineteenth century have some bearing on the
meaning of a Revolutionary-era document, these sister-state constitutions
provide little guidance. Ohio has held that the state clause is the
"functional equivalent" of the Equal Protection Clause with similar
standards. See American Ass'n of Univ. Professors v. Central State Univ.,
699 N.E.2d 463, 467 (Ohio 1998). The West Virginia Supreme Court, in
contrast, has relied on the Common Benefits Clause to hold that the State
constitution provides greater individual protection than the United States
Constitution. See United Mine Workers of Am. Inter. Union v. Parsons, 305
S.E.2d 343, 353-54 (W. Va. 1983). Apart from noting the absence of an
equivalent provision in the federal constitution, however, the West
Virginia court has not engaged in any extensive textual or historical
analysis.
A number of states during the Revolutionary and early National periods
also adopted separate provisions, apparently modeled on the Pennsylvania
and Virginia clauses, declaring that no men, or set of men, are entitled
to exclusive or separate emoluments or privileges from the community, but
in consideration of public services. See, e.g., N.C. Const. of 1776, Decl.
of Rights, § 3; Mass. Const., Pt. 1, art. VI; Conn. Const. of 1818, art.
I, § 1; Miss. Const. of 1832, art. I, § 1; Ky. Const. of 1792, art. XII, §
1. These "emoluments and privileges" clauses have been extensively cited
and applied, often in the context of taxpayer suits challenging public
expenditures as unconstitutional "gifts" of public funds without
consideration of public service, or suits challenging legislative acts
granting special credits, payments, or exemptions to a specific class.
see, e.g., Commissioner of Pub. Works v. City of Middletown. 731 A.2d 749.
757 (Conn. 1999) (challenge to tax exemption); Driscoll v. City of New
Haven, 52 A. 618, 622 (Conn. 1902) (taxpayer suit to enjoin municipal
grant of land to private company); Kentucky Union R.R. Co. v. Bourbon
County, 2. S.W. 687, 690 (Ky. 1887) (taxpayer suit to enjoin subscription
of bonds for railroad purposes); Brumley v. Baxter, 36 S.E.2d 281, 286
(N.C. 1945) (taxpayer suit to enjoin municipal grant of real property for
use by military veterans); see also Gross v. Auditor of Accounts, 109 Vt.
156, 159, 194 A. 465, 467 (1937) (Article 7 challenge to payment to
sheriff's widow as "emolument" without consideration of public service).
These cases generally turned on whether the challenged action promoted a
public purpose or was made without some consideration of public service.
They represent, in effect, the reverse of the Common Benefits Clause,
prohibiting the grant of special privileges to a select class of persons
over and above those granted to the general community, as the Common
Benefits Clause requires the equal enjoyment of general benefits and
protections by the whole community.
FN10. The concurring opinion would tie its analysis to the presumably
"objective" test of suspect class. But suspect class analysis has never
provided a stable mooring for constitutional application of Vermont's
Common Benefits Clause. Although the concurrence identifies precedents of
this Court holding that a more searching scrutiny is required when a
statutory scheme involves suspect classes, we have never established the
criteria for determining what constitutes a suspect class under the
Vermont Constitution nor have we ever identified a suspect class under
Article 7. Moreover, the concurrence applies strict scrutiny predicated
on a finding that lesbians and gay men are a suspect class, although the
overwhelming majority of decisions have rejected such claims. See Ben-
Shalom v. Marsh, 881 F.2d 454, 464-66 (7th Cir. 1989), cert denied, 494
U.S. 1004 (1990); Equality Found'n of Greater Cincinnati, Inc. v. City of
Cincinnati, 128 F.3d 289, 292-93 (6th Cir. 1997); Thomasson v. Perry, 80
F.3d 915, 927 (4th Cir.), cert. denied, 519 U.S. 948 (1996); Richenberg v.
Perry, 97 F.3d 256, 260-61 (8th Cir. 1996), cert. denied, 522 U.S. 807)
(1997); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d
563, 571-72 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068,
1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1002 (1990); Padula v.
Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); Baker v. Wade, 769 F.2d 289,
292 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1035 (1986); National
Gay Task Force v. Board of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984),
aff'd 470 U.S. 903 (1985); Opinion of the Justices, 530 A.2d 21, 24 (N.H.
1987).
The Court -- no less than the concurrence -- seeks a rationale
faithful to our Constitution and careful in the exercise of this Court's
limited powers. The concurrence suggests that the Oregon Supreme Court's
decision in Hewitt v. State Accident Ins. Fund Corp., 653 P.2d 970, 977-78
(Or. 1982) should be relied upon to supply the missing Vermont
jurisprudence of suspect class criteria. Yet, the Oregon Court of Appeals
found it necessary to abandon the immutable personal-characteristic
criterion of Hewitt in order to find that homosexuals were a suspect class
entitled to heightened scrutiny. See Tanner v. Oregon Health Sciences
Univ., 971 P.2d 435, 446 (Or. Ct. App. 1998). The "adverse stereotyping"
analysis used in its place, see id., may provide one intermediate
appellate court's answer to the question of whether homosexuals are a
suspect class, but it is far from an "exacting standard" by which to
measure the prudence of a court's exercise of its powers. It is difficult
to imagine a legal framework that could provide less predictability in the
outcome of future cases than one which gives a court free reign to decide
which groups have been the subject of "adverse social or political
stereotyping." Id. The artificiality of suspect-class labeling should be
avoided where, as here, the plaintiffs are afforded the common benefits and
protections of Article 7, not because they are part of a "suspect class,"
but because they are part of the Vermont community.
FN11. The concurring and concurring and dissenting opinions are
mistaken in suggesting that this standard places identical burdens upon
the State regardless of the nature of the rights affected. As explained
above, the significance of the benefits and protections at issue may well
affect the justifications required of the State to support a statutory
classification. This is plainly demonstrated in the discussion of
marriage benefits and protections which follows. Nor is there any merit to
the assertion that this standard invites a more "activist" review of
economic and social welfare legislation. See post, at 15 (Dooley, J.,
concurring). Characterizing a case as affecting "economic" interests,
"civil rights," "fundamental" rights, or "suspect classes" -- as our
colleagues apparently prefer -- is no less an exercise in judgment.
Indeed, it may disguise the court's value judgments with a label, rather
than explain its reasoning in terms that the public and the litigants are
entitled to understand. "It is a comparison of the relative strengths of
opposing claims that informs the judicial task, not a deduction from some
first premise." Glucksberg, 521 U.S. at 764 (Souter, J., concurring).
That is a task we trust will continue to be undertaken in a legal climate
that recognizes that "constitutional review, not judicial lawmaking, is a
court's business here." Id. at 768.
FN12. Justice Harlan has described the process of constitutional
interpretation as follows:
If the supplying of content to this Constitutional concept has of necessity
been a rational process, it certainly has not been one where judges have felt
free to roam where unguided speculation might take them. The balance of
which I speak is the balance struck by this country, having regard to what
history teaches are the traditions from which it developed as well as the
traditions from which it broke. That tradition is a living thing. A decision
of this Court which radically departs from it could not long survive, while a
decision which builds on what has survived is likely to be sound. No
formula could serve as a substitute, in this area, for judgment and restraint.
Poe, 367 U.S. at 542 (Harlan, J. dissenting).
FN13. Relying largely on federal precedents, our colleague in her
concurring and dissenting opinion suggests that the statutory exclusion of
same-sex couples from the benefits and protections of marriage should be
subject to heightened scrutiny as a "suspect" or "quasi-suspect"
classification based on sex. All of the seminal sex-discrimination
decisions, however, have invalidated statutes that single-out men or women
as a discrete class for unequal treatment. See, e.g., United States v.
Virginia, 518 U.S. 515, 555-56 (1996) (repudiating statute that precluded
women from attending Virginia Military Institute); Mississippi Univ. for
Women v. Hogan, 458 U.S. 718, 731 (1982) (invalidating admission policy
that excluded males from attending state-supported nursing school); Craig
v. Boren, 429 U.S. 190, 204 (1976) (invalidating statute that allowed women
to purchase non-intoxicating beer at younger age than men); Frontiero v.
Richardson, 411 U.S. 677, 690 (1973) (striking statute that imposed more
onerous requirements upon female members of armed services to claim
spouses as dependents).
Although this Court has not addressed the issue, see State v. George,
157 Vt. 580, 588, 602 A.2d 953, 957 (1991), we do not doubt that a statute
that discriminated on the basis of sex would bear a heavy burden under the
Article 7 analysis set forth above. The difficulty here is that the
marriage laws are facially neutral; they do not single-out men or women as
a class for disparate treatment, but rather prohibit men and women equally
from marrying a person of the same sex. As we observed in George, 157 Vt.
at 585, 602 A.2d at 956, "[i]n order to trigger equal protection analysis
at all . . . a defendant must show that he was treated differently as a
member of one class from treatment of members of another class similarly
situated." (Emphasis added). Here, there is no discrete class subject to
differential treatment solely on the basis of sex; each sex is equally
prohibited from precisely the same conduct.
Indeed, most appellate courts that have addressed the issue have
rejected the claim that defining marriage as the union of one man and one
woman discriminates on the basis of sex. See, e.g. Baker v. Nelson, 191
N.W.2d 185, 186-87 (Minn. 1971); Singer v. Hara, 522 P.2d 1187, 1191-92
(Wash. Ct. App. 1974); see also Phillips v. Wisconsin Personnel Comm'n, 482
N.W.2d 121, 129 (Wis. Ct. App. 1992) (holding that health insurance
regulation limiting state employee's dependent coverage to spouse did not
constitute sex discrimination because coverage was "unavailable to
unmarried companions of both male and female employees"); State v. Walsh,
713 S.W.2d 508, 510 (Mo. 1986) (rejecting claim that sodomy statute
imposed sex-based classification because it "applie[d] equally to men and
women [in] prohibit[ing] both classes from engaging in sexual activity
with members of their own sex"). But see Baehr v. Lewin, 852 P.2d 44, 64
(Haw. 1993) (plurality opinion holding that state's marriage laws
discriminated on basis of sex).
Although the concurring and dissenting opinion invokes the United
States Supreme Court decision in Loving v. Virginia, 388 U.S. 1 (1967),
the reliance is misplaced. There the high court had little difficulty in
looking behind the superficial neutrality of Virginia's anti-miscegenation
statute to hold that its real purpose was to maintain the pernicious
doctrine of white supremacy. Id. at 11. Our colleague argues, by analogy,
that the effect, if not the purpose, of the exclusion of same-sex partners
from the marriage laws is to maintain certain male and female stereotypes
to the detriment of both. To support the claim, she cites a number of
antiquated statutes that denied married women a variety of freedoms,
including the right to enter into contracts and hold property.
The test to evaluate whether a facially gender-neutral statute
discriminates on the basis of sex is whether the law "can be traced to a
discriminatory purpose." Personnel Administrator v. Feeney, 442 U.S. 256,
272 (1979). The evidence does not demonstrate such a purpose. It is one
thing to show that long-repealed marriage statutes subordinated women to
men within the marital relation. It is quite another to demonstrate that
the authors of the marriage laws excluded same-sex couples because of
incorrect and discriminatory assumptions about gender roles or anxiety
about gender-role confusion. That evidence is not before us.
Accordingly, we are not persuaded that sex discrimination offers a useful
analytic framework for determining plaintiffs' rights under the Common
Benefits Clause.
FN14. It would, for example, serve no useful purpose to remand this
matter for hearings on whether marriages of convenience (i.e., unions for
the purpose of obtaining certain statutory benefits) would result from
providing same-sex couples with the statutory benefits and protections
accorded opposite-sex couples under marriage laws. For the reasons we have
stated in this opinion, it is not a failure of proof that is fatal to the
State's arguments, it is a failure of logic.
FN15. Contrary to the characterization in the concurring and
dissenting opinion, we do not "decline[] to provide plaintiffs with a
marriage license" because of uncertainty and confusion that change may
bring. Post, at 11. Rather, it is to avoid the uncertainty that might
result during the period when the Legislature is considering potential
constitutional remedies that we consider it prudent to suspend the Court's
judgment for a reasonable period.
FN16. J. Boswell, Life of Johnson (1791) (reprinted in Bartlett's
Familiar Quotations 54 (15th ed. 1980).