Case Summaries

Baker v. Vermont
744 A.2d 864 (Vt. 1999)

Full text of opinion (Vt. Supreme Court website)

Three same-sex couples sued the State of Vermont in July of 1997 when they applied for marriage licenses and were denied. After motions, but no hearing, trial court judge Linda Levitt in Burlington granted summary judgment for the State. However, in her opinion Judge Levitt dismissed six of the seven State interests advanced by the Attorney General. The only interest she considered rational, “though flawed,” was that the marriage law sought to link procreation and child-rearing. Because Vermont has no relevant intermediate court, the case moved immediately to the Supreme Court. Oral argument was held on November 18, 1998 , and the Court had been silent since that date.

A. Vermont Supreme Court’s Holding

On December 20, 1999, the Court issued a unanimous 5-0 decision reversing the decision of the trial court. Justice Dooley wrote a concurring opinion and Justice Johnson wrote a concurring/dissenting opinion. The Court decided two things: (1) the Vermont Constitution requires that all (or almost all) of the benefits of marriage to be extended to same-sex couples, and (2) the Legislature, rather than the Court, must determine how to do this, whether by marriage, domestic partnership, or some other means.

It may be helpful to recite the Court’s own words (at 3):

under the Common Benefits Clause of the Vermont Constitution . . . 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.

Because the case is based exclusively on the Vermont Constitution, there is no further appeal. The Legislature is now faced with a mandate to fashion a remedy. Meanwhile the Court retains jurisdiction, so that if the plaintiffs feel their remedy is inadequate, they can return to the Court. [Note: The Court subsequently released its continuing jurisdiction over the case in the fall of 2000.]

1. The Reasoning of the Court

The Court began by insisting that it was aware of the controversial nature of the case, including its many moral, religious, and political implications. It then claimed it would leave all these aside.

a. The Statutory Question

Plaintiffs had argued that the existing marriage law either included same-sex couples or should be read to include them. The Court dismissed this argument, and held that by normal principles of statutory construction, marriage as used in the statute requires a man and a woman (at 5).

b. The Constitutional Question

The Court began with an extensive review of the history, case law, and “principles” of Vermont ’s Common Benefits Clause. Based on this, it announced its standard of review, and then applied it.

In assessing the importance of the right at issue, the Court held that under Loving v. Virginia, marriage and its benefits “enhance the quality of life in our society” (at 33). Because marriage is associated with so many benefits, the basis offered for not extending them must be strong (at 35).

1) Standard of Review for Chap. I, Art. 7

As previously noted, the Court’s analysis was specifically limited to the Vermont Constitution (at 8). The Court spent some time noting that the Vermont Constitution can be read to offer more expansive rights than the Federal Constitution (at 9). The opinion noted that the history and text of the provision at issue were different than the Federal Equal Protection Clause (at 9-18). The Court concluded that the Common Benefits Clause has as its basis not the redress of oppression, but the principle of inclusion: All Vermonters should have access to what other Vermonters have. If they do not, then some citizens have unconstitutional “advantages” over others. (at 18-21).

The Court concluded that its standard for the case would be “whether [the law] is reasonably necessary to accomplish the State’s claimed objectives” (at 24). Though this sounds like a Federal “rational basis” standard, they claimed otherwise, and their conclusions bear out their claims.

2) Analysis of the State’s Interests

The State had asserted seven interests that justified the marriage law. As noted above, only one had been accepted, grudgingly, by the trial court. The Court spent its energy on this interest, which the Court identified as “furthering the link between procreation and child raising” (at 28).

The Court noted that some opposite-sex couples marry without having children and that some same-sex couples have children through means of assisted reproduction. The link between marriage and procreation has already been blurred. Therefore, opposite-sex and same-sex couples are essentially the same in regard to children, so the State’s purpose is not advanced by a marriage law that excludes same-sex couples (at 29-31).

The Court also held that the State’s proffered interest in ensuring that children are reared by a mother and father is contradicted by the facts (1) that the State allows adoptions by same-sex couples, and (2) allows unmarried partners to seek visitation and support after their relationship breaks down (at 36).

The Court also held that the State’s interest in maintaining uniformity with other States was contradicted by the fact that current Vermont law is not identical with the laws of other States regarding same-sex adoptions (as noted above) and also regarding first cousin marriages (at 36).

The Court held that the State’s argument that striking down the current marriage law would promote marriages of convenience was speculative (at 37).

Finally, the Court attacked the State’s argument that since same-sex relationships have not traditionally been afforded legal recognition, they could not claim to be provided for by the Vermont Constitution. The Court responded by saying that past animus against same-sex couples could not justify an exclusionary marriage law, especially when the Legislature had already indicated a willingness to recognize these relationships (at 37-38).

Having rejected all of these justifications, the Court found that the State had failed to show any rational basis for the current marriage law (at 38).

c. The Question of Remedy

In deciding a remedy, the Court made clear that its decision only affected the benefits of marriage. The question of licenses, it said, need not be addressed at this time (at 39).

The Court said “We do not purport to infringe upon the prerogatives of the Legislature to craft an appropriate means of addressing this constitutional mandate,” but noted a number of options such as “domestic partnership” benefits (at 39). Most importantly, the court basic elements of such schemes, implying that such elements would be required in order to comply with their mandate:

(1) the law “must establish an alternative legal status” to marriage for same-sex couples.

(2) the law must “impose formal requirements and limitations.”

(3) the law must “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” (at 39).

The Court allowed that the State was justifiably concerned that a major shift in law could create destabilization, and said it would allow a “reasonable period” for the Legislature to respond (at 40). The Court warned, though that if the Legislature does not respond, the plaintiffs can return to court to seek the “remedy they originally sought” (at 41).

The Court concluded by acknowledging that the Judiciary is not always the best place to get an answer to difficult legal questions. It argued that allowing the Legislature to determine the remedy was constitutionally the right thing to do (at 44).

B. Justice Dooley’s Concurring Opinion

Justice Dooley agreed with the result, but strongly disagreed with the reasoning in two respects.

First, as regards the specific issue of the marriage law, Dooley argued that the Court should have decided this case under a more traditional “heightened scrutiny” approach. He would have extended “suspect class” status based on “sexual orientation.” He specifically cited with approval the Oregon Court of Appeals’ 1998 decision in Tanner v. Oregon Health Sciences University, 971 P.2d 435 (Or. Ct. App. 1998)(at 5-10). The justification for this standard would be the peculiar legal climate of Vermont which is accepting of same-sex relationships (at 6).

Second, as regards the meaning of the Common Benefits Clause, Justice Dooley was unpersuaded that the Court had actually produced clear guidelines for the application of this provision. He argued that the Opinion relied too much on its own “reasoned judgment” and too little on law. One adverse consequence of this, in his opinion, could be that civil rights and economic decisions might all end up subject to the same standard (at 11-12). Because of this lack of standards, Dooley concluded that the Court’s reading of the Clause would have little lasting value (at 17).

C. Justice Johnson’s Concurring and Dissenting Opinion

Justice Johnson joined the Court’s opinion, but would have issued the marriage licenses (at 3).

First, Johnson stated her understanding of the State’s interest in marriage. She described it as “regulatory.” Since “a marriage license merely acts as a trigger for state-conferred benefits,” the purpose of a marriage license is to create a record to identify where benefits should be given (at 5). Since the State had no “public health or safety” justifications for the existing marriage law, there was no reason to deny benefits to same-sex couples (at 6).

Second, Johnson disagreed with the remedy adopted by the Court. She argued that the Court had a duty to move swiftly to redress constitutional violations, rather than leaving that duty to the Legislature (at 9). Granting marriage licenses would be the best way to do this, in her opinion. To do so would further the goals of marriage identified by the Court: providing “stability to individuals, their families, and the broader community by clarifying and protecting the rights of married persons” (at 10).

Finally, like Justice Dooley, Justice Johnson was critical of the Court’s standard of review. She argued, however, that the marriage statute discriminated on the basis of sex, and that the “heightened scrutiny” already applied to sex-based classifications at the Federal level should be applied (at 16). She argued that the marriage statute was a sex-based classification because it relied on the sex of the person who the applicant for a marriage license had chosen to marry (at 17). (This is similar to the reasoning of the Hawai`i Supreme Court in its 1993 Baehr decision).