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Stan BAKER, et al. v. STATE of Supreme Court of 170 Decided: 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. n1 n1 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.2d 595 (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. 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). "We 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 "the 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 (1989)); 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 15 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. n2 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. n2 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. 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. at 449, 450 A.2d at 347 (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. n3 See, e.g., Choquette
v. Perrault, 153 Vt. 45, 51-52, 569 A.2d 455, 458-59 (1989). At the same
time, however, we have recognized that "although 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. n3 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 City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,
440-41, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (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, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (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, 66 L. Ed. 2d
659, 101 S. Ct. 715 (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). 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, 201-02 (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.
n4 n4 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, 79 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. 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. n5 In Colchester Fire District 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"). n5 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. 40, 59-61 (1996). These cases include Romer v. Evans, 517 U.S.
620, 635, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996) (holding Colorado
statute that banned state or local laws forbidding sexual-orientation
discrimination was not rationally related to legitimate governmental
objective), Cleburne, 473 U.S. at 450, 87 L. Ed. 2d 313, 105 S. Ct. 3249
(applying rational basis review, Court invalidated zoning discrimination
against mentally retarded as based on "irrational prejudice"), and United
States Dep't. of Agriculture v. Moreno, 413 U.S. 528, 534, 37 L. Ed. 2d 782,
93 S. Ct. 2821 (1973) (invalidating regulation that excluded nonfamily
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, 132 L. Ed. 2d 158, 115 S. Ct. 2097 (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 Newer 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
"the 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. 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 "adopted 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 at 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, 204-09 (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. Crowninshield, 17 U.S. (4 Wheat.)
122, 202, 4 L. Ed. 529 (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. n6 n6 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. 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. n7 n7 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 (framers "drew no distinction between 'ought' and
'shall' in defining rights and duties"). 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 "sets 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 "that 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)). n8 n8 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. 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 he 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. n9 n9 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, 65 N.H. 113, 18 A. 878, 881 (N.H. 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, 89 N.H. 314, 197 A. 701, 706 (N.H. 1938) (noting that under
Common Benefits Clause, "equality 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., 417 Mass.
406, 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 ("All 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., 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., 83 Ohio St. 3d 229, 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 America
Int'l. Union v. Parsons, 172 W. Va. 386, 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. 53 Conn. App. 438, 731 A.2d 749, 757
(Conn. App. Ct. 1999) (challenge to tax exemption); Driscoll v. City
of New Haven, 75 Conn. 92, 52 A. 618, 622 (Conn. 1902) (taxpayer suit to
enjoin municipal grant of land to private company); Kentucky Union R.R. v.
Bourbon County, 85 Ky. 98, 2 S.W. 687, 690 (Ky. 1887) (taxpayer suit to
enjoin subscription of bonds for railroad purposes); Brumley v. Baxter,
225 N.C. 691, 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. Gates, 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. 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. n10 n10 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. 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, 136 L. Ed. 2d 250, 117 S. Ct. 358 (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. 1003, 108 L. Ed.
2d 473, 110 S. Ct. 1295 (1990); Padula v. Webster, 261 U.S. App. D.C.
365, 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, 92 L. Ed.
2d 774, 107 S. Ct. 23 (1986); National Gay Task Force v. Board of
Educ., 729 F.2d 1270, 1273 (10th Cir. 1984), aff'd, 470 U.S. 903, 84
L. Ed. 2d 776, 105 S. Ct. 1858 (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 Insurance
Fund Corp., 294 Ore. 33, 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., 157 Ore. App. 502, 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. 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, 138 L. Ed.
2d 772, 117 S. Ct. 2258 (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, 6 L. Ed. 2d 989, 81 S. Ct. 1752 (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 to their relationships with the historically
recognized principles that lend them weight or value." 521 U.S. at
769 (emphasis added). n11 n11 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 Vt. at
, 744 A.2d at , 1999 Vt.
LEXIS 406, *90 (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. Ultimately, the answers to these
questions, however useful, cannot substitute for "'the 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, 120 L. Ed. 2d
674, 112 S. Ct. 2791 (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. n12 n12 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). 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. n13 n13 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, 135
L. Ed. 2d 735, 116 S. Ct. 2264 (1996) (repudiating statute that precluded
women from attending Virginia Military Institute); Mississippi Univ. for
Women v. Hogan, 458 U.S. 718, 731, 73 L. Ed. 2d 1090, 102 S. Ct. 3331 (1982)
(invalidating admission policy that excluded males from attending
state-supported nursing school); Craig v. Boren, 429 U.S. 190, 204, 50 L.
Ed. 2d 397, 97 S. Ct. 451 (1976) (invalidating statute that allowed women
to purchase nonintoxicating beer at younger age than men); Frontiero v.
Richardson, 411 U.S. 677, 690, 36 L. Ed. 2d 583, 93 S. Ct. 1764 (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, "in
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, 291 Minn. 310, 191 N.W.2d 185, 186-87 (Minn. 1971);
Singer v. Hara, 11 Wn. App. 247, 522 P.2d 1187, 1191-92 (Wash. Ct. App.
1974); see also Phillips v. Wisconsin Personnel Comm'n, 167 Wis. 2d
205, 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 "applied equally to
men and women [in] prohibiting both classes from engaging in sexual activity
with members of their own sex"). But see Baehr v. Lewin, 74 Haw. 530,
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, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (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." Feeney, 442
U.S. at 272, 60 L. Ed. 2d 870, 99 S. Ct. 2282. 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. 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 Hastings 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 & 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)
("It 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 Hastings 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 nontraditional means of conception
are infertile married couples, see Shapiro 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, 49 L. Ed. 2d
511, 96 S. Ct. 2513 (1976) (legislature may adopt regulations "that
only partially ameliorate a perceived evil"); Williamson v. Lee
Optical of Okla., Inc., 348 U.S. 483, 489, 99 L. Ed. 563, 75 S. Ct. 461
(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, 18 L. Ed. 2d 1010, 87 S. Ct. 1817 (1967), the
United States Supreme Court, striking down Virginia's anti- miscegenation
law, observed that "the 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 Me. 480, 485 (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 of 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, 74 Haw. 530, 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 (1996); J. Robbennolt & M. Johnson, Legal Planning
for Unmarried Committed Partners: 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. n14 n14 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. 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 1992, 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, 217-20 n.237 (1992) (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 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. n15 See Linkletter v. Walker, 381 U.S. 618, 628,
14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965) (no constitutional rule impedes
court's discretion to postpone operative date of ruling where exigencies
require); Smith v. State, 93 Idaho 795, 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, 264 Minn. 279, 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. n15 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. Vt. at
, 744 A.2d at 902, 1999 Vt. LEXIS 406,. 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. Our colleague asserts that granting the relief requested
by plaintiffs -- an injunction prohibiting defendants from withholding a
marriage license -- is our "constitutional duty." Vt. at , 744 A.2d at 898, 1999 Vt. LEXIS
406 (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, 10 L. Ed. 2d 529, 83 S. Ct.
1314 (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, 98 L.
Ed. 873, 74 S. Ct. 686 (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 & City Council of Baltimore, 220
F.2d 386 (4th Cir.), aff'd, 350 U.S. 877, 100 L. Ed. 774, 76 S. Ct.
133 (1955). Unlike Watson, our decision declares decidedly new doctrine. The concurring and dissenting
opinion further claims that our mandate represents an "abdication"
of the constitutional duty to decide, and an inexplicable failure to
implement "the most straightforward and effective remedy." 744 A.2d at 898, 901, 1999 Vt. LEXIS 406.
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, 74 Haw. 530, 852 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" (
Vt. at , 744 A.2d at 898,
1999 Vt. LEXIS 406) 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. 3
AN-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, 15 L. Ed. 691 (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. 4, 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," n16 the essential aspect of
their claim is simply and fundamentally for inclusion in the family of
state-sanctioned human relations. n16 J. Boswell, Life of Johnson
(1791) (reprinted in Bartlett's Familiar Quotations 54 (15th ed. 1980). 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. DOOLEY, J., concurring [in which JOHNSONC concurs in part].
I concur in Part I of the majority opinion, the holding of Part II, and the
mandate. I do not, however, concur in the reasoning of Part II. I recognize
that to most observers the significance of this decision lies in its result
and remedy. In the cases that come before us in the future, however, the
significance of this case will lie in its rationale - that is, how we
interpret and apply Chapter I, Article 7 of the Vermont Constitution.
Moreover, in this, the most closely-watched opinion in this Court's history,
its acceptability will be based on whether its reasoning and result are
clearly commanded by the Constitution and our precedents, and whether it is a
careful and necessary exercise of the Court's limited powers. I do not
believe that the majority's rationale meets this exacting standard, and I
fear how it may be applied - or ignored - in the future. This is a concurrence and not a
dissent. I agree with the majority that the consequence of limiting marriage
to a man and woman is the exclusion of these plaintiffs, and many persons
similarly situated, from numerous rights, benefits, and duties that
government and society provide to -
and impose on - married persons. However we might have described marriage in
relation to the very limited government that was created by our Constitution,
the complexity of the current system of government-created benefits and
burdens has made civil marriage a modern-day emolument, a government
recognized and supported special status for which these plaintiffs are not eligible. This is a civil rights case, very
different from a claim of discrimination with respect to, for example, a
peddler's fee, see State v. Hoyt, 71 Vt. 59, 42 A. 973 (1899),
operation of partnerships, see State v. Cadigan, 73 Vt. 245, 50 A. 1079
(1901), or regulation of river pollution, see State v. Haskell, 84 Vt.
429, 79 A. 852 (1911). It is also very different from a claim that
exemptions to a Sunday closing law unconstitutionally discriminated against
large stores, the issue in State v. Ludlow Supermarkets, Inc., 141 Vt.
261, 448 A.2d 791 (1982). The United States Supreme Court has recognized
that discrimination based on race, alienage, national origin, or sex requires
greater justification than economic discrimination, such as discrimination in
the fees charged certain peddlers based on the type of goods they are
selling. See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S.
432, 440-41, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985) (discussing the
standards for scrutinizing various classifications). Compare United States
v. Virginia, 518 U.S. 515, 532, 135 L. Ed. 2d 735, 116 S. Ct. 2264 (1996)
(sex), and Loving v. Virginia, 388 U.S. 1, 11, 18 L. Ed. 2d 1010, 87 S.
Ct. 1817 (1967) (race), with Williamson v. Lee Optical, Inc., 348 U.S.
483, 486-88, 99 L. Ed. 563, 75 S. Ct. 461 (1955) (economic regulation).
Until this decision, we also recognized this distinction. As we stated in Brigham
v. State, 166 Vt. 246, 265, 692 A.2d 384, 396 (1997): "Where a
statutory scheme affects fundamental constitutional rights or involves
suspect classifications, both federal and state decisions have recognized
that proper equal protection analysis necessitates a more searching scrutiny
..." The marriage statutes do not
facially discriminate on the basis of sexual orientation. There is, however,
no doubt that the requirement that civil marriage be a union of one man and
one woman has the effect of discriminating against lesbian and gay couples,
like the plaintiffs in this case, who are unable to marry the life partners of
their choice. The majority proclaims that most decisions have concluded that
lesbians and gay men are not a suspect classification, inferring that any
conclusion to the contrary is wrong. See 744 A.2d at 878 n.10, 1999 Vt.
LEXIS 406. On this point, however, I believe the central analysis of
Ludlow is critical: [A] state court reviewing state
legislation is in a very different posture from the United States Supreme
Court when it undertakes the parallel task. Rather than disposing of a case
on the premise that its impact will presumably affect more than fifty varying
jurisdictions, a state court reaches its result in the legal climate of the
single jurisdiction with which it is associated, if federal proscriptions are
not transgressed. 141 Vt. at 268, 448 A.2d at 795. Although our precedents mandate
use of at least a close cousin of the federal equal protection test, we must,
as we said in Ludlow, apply that test in our own "legal climate." Vermont's legal climate differs
considerably from that in other jurisdictions where courts have held that
lesbians and gay men are not a suspect classification. Indeed, the federal
analysis of the rights of lesbians and gay men almost always starts with Bowers
v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986), a
decision that reflects a legal climate quite hostile to those rights. Bowers
upheld a Georgia conviction for sodomy based on a sex act committed by two
males in the bedroom of defendant's home. See id. at 196. It held
that, for due process purposes, individuals do not have "a fundamental
right to engage in homosexual sodomy." Id. at 191. Federal courts considering
equal-protection challenges have relied on Bowers to conclude that lesbians
and gay men are not a suspect classification. They rationalize that if
homosexual conduct can constitutionally be criminalized, homosexuals cannot
constitute a suspect class. See, e.g., Equality Found. of Greater
Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 292-93 (6th Cir. 1997)
(holding that under Bowers and its progeny, homosexuals do not constitute
suspect class because conduct which defined them as homosexuals could
constitutionally be proscribed); Ben-Shalom v. Marsh, 881 F.2d 454, 464-65
(7th Cir. 1989) (citing Bowers and holding that because homosexual
conduct may constitutionally be criminalized, homosexuals do not constitute a
suspect class); High Tech Gays v. Defense Indus. Sec. Clearance Office,
895 F.2d 563, 571 (9th Cir. 1990) (same); Woodward v. United States,
871 F.2d 1068, 1074-76 (Fed. Cir. 1989) (same); Padula v. Webster, 261
U.S. App. D.C. 365, 822 F.2d 97, 102-03 (D.C. Cir. 1987) (same); see also
Opinion of the Justices, 530 A.2d 21, 24 (N.H. 1987) (stating that for
federal equal-protection analysis homosexuals do not constitute a suspect
class, nor is there a fundamental right to engage in sodomy according to
Bowers). The majority errs in relying on
these cases because the Bowers rationale applied in all of them is not
applicable in Vermont today. Although Vermont, like all states, once
criminalized sodomy, and had a "fellation" law, see State v.
LaForrest, 71 Vt. 311, 312, 45 A. 225, 226 (1899) (holding sodomy a crime
by virtue of 1 V.S.A. § 271 --
formerly V.S. § 898 -- and adopting
common law so far as applicable in Vermont); 13 V.S.A. § 2603 (repealed 1977, No. 51, § 2), it repealed this law in 1977 and does
not now prohibit, or otherwise restrict, homosexual conduct between adults,
except on the same terms that it restricts heterosexual conduct. See, e.g., 13
V.S.A. § 3252 (sexual assault); 13
V.S.A. § 3253 (aggravated
assault); 13 V.S.A. § 2601
(lewd and lascivious conduct). Since 1992, it has generally been
the policy of Vermont to prohibit discrimination based on sexual orientation.
See 1991, No. 135 (Adj. Sess.). This includes discrimination based on
"female or male homosexuality." 1 V.S.A. § 143.. Thus, I believe our "legal
climate" is vastly different from that in Bowers, where, after
considering that twenty-four states had criminalized sodomy between
consenting adults, the United States Supreme Court concluded that there was
no fundamental right, deeply rooted in the Nation's history, to engage in
such conduct. My point here is simply that the rationale in federal decisions
for withholding a more searching scrutiny does not apply in Vermont. The
majority errs in relying on these decisions and the state court decisions
applying the same federal analysis. Chapter I, Article 7 of the
Vermont Constitution actually contains three clauses, the most important of
which is the second, which contains the prohibition on governmental actions
"for the particular emolument or advantage of any single person, family,
or set of persons, who are a part only of that community." This
anti-privilege language, and variations on it, is contained in the vast
majority of pre-civil war state constitutions. See, e.g., Conn. Const. of
1818, art. I, § 1; Ky. Const. of 1792,
art. XII, § 1; Mass. Const., art. VI
(adopted in 1780); N.H. Const., art. X (adopted in 1784); N.C. Const. of
1776, art. III; Ohio Const. of 1851, art. I, § 2; Va. Const. of 1776, Bill of Rights,
§ 4; Tx. Const. of 1845, art. I,
§ 2. At least in this century, the jurisprudence
in Vermont is similar to that in most states. See, e.g., Town of Emerald
Isle v. State, 320 N.C. 640, 360 S.E.2d 756, 764 (N.C. 1987)
(classification is not exclusive emolument if intended to promote general
welfare and reasonable basis exists to conclude it serves public interest); Primes
v. Tyler, 43 Ohio St. 2d 195, 331 N.E.2d 723, 728-29 (Ohio 1975) (statute
violates constitution because no governmental interest justifies grant of
special privilege and immunity); Rosenblum v. Griffin, 89 N.H. 314, 197 A.
701, 706 (N.H. 1938) (classification is constitutional under New
Hampshire or federal law if based on some reasonable ground); City of
Corbin v. Louisville & Nashville R.R., 233 Ky. 709, 26 S.W.2d 539, 540
(Ky. 1930) (purpose of emoluments and privileges clause is to place all similarly situated citizens on
plane of equality under law). Oregon, like Vermont, has
developed an independent state constitutional jurisprudence. Article I,
Section 20 of the Oregon Constitution, adopted in 1859, provides that no law
shall "grant[] to any citizen or class of citizens privileges, or
immunities, which, upon the same terms, shall not equally belong to all
citizens." This provision is similar in purpose and effect to our Common
Benefits Clause. See D. Schuman, The Right to "Equal Privileges and
Immunities": A State Version of "Equal Protection," 13 Vt.
L. Rev. 221, 222-25 (1988). The Oregon Supreme Court has described that
provision precisely how we today have described Chapter I, Article 7:
"Antedating the Civil War and the equal protection clause of the
fourteenth amendment, its language reflects early egalitarian objections to
favoritism and special privileges for a few rather than the concern of the
Reconstruction Congress about discrimination against disfavored individuals
or groups." State v. Clark, 291 Ore. 231, 630 P.2d 810, 814 (Or.
1981). Just as this Court has acknowledged in developing its Article 7
jurisprudence, the Oregon court has recognized that a privilege for a person
or group of persons means discrimination against others. See 630 P.2d at
814 (Article I, Section 20 of Oregon Constitution protects against
adverse discrimination as well as against favoritism). Thus, while developing
an independent state constitutional jurisprudence, the Oregon Supreme Court
has looked to the decisions of the United States Supreme Court, but has
adopted the federal analysis only where the court finds it persuasive. See State
v. Kennedy, 295 Ore. 260, 666 P.2d 1316, 1321 (Or. 1983); see, e.g., Hewitt
v. State Accident Ins. Fund Corp., 294 Ore. 33, 653 P.2d 970, 976 (Or. 1982)
(declining to adopt federal standard of intermediate scrutiny for sex-based
classifications). The Oregon Supreme Court, like
this Court, has adopted the federal, tiered framework for analyzing
equal-protection type constitutional challenges. See Hewitt, 653 P.2d at
976 (following United States Supreme Court analysis that asks whether
classification is made on basis of suspect classification, and if so, whether
such classification is subject to strict scrutiny). Moreover, it has held, as
we have held, that its state constitution "prohibits disparate treatment
of groups or individuals by virtue of 'invidious' social categories" and
that discrimination against a suspect class is subject to strict scrutiny.
Id.; see MacCallum v. Seymour's Adm'r, 165 Vt. 452, 460, 686 A.2d 935, 939
(1996) (Article 7 protects against invidious discrimination). I point out
the similarities between our Article 7 jurisprudence and Oregon's § 20 jurisprudence because this Court has not
established the criteria for identifying suspect classifications, while the
Oregon courts have. Because of the historical similarity, I find it useful to
look to Oregon case law, and the United States Supreme Court decisions upon
which it relies, in considering whether lesbians and gay men are a suspect
classification under Article 7. In Hewitt, the Oregon Supreme
Court determined that sex-based classifications are suspect because (1) they
focus on an immutable personal characteristic and thus "can be suspected
of reflecting 'invidious' social or political premises, that is to say,
prejudice or stereotyped prejudgments," and (2) "the purposeful
historical, legal, economic and political unequal treatment of women is well
known." 653 P.2d at 977. Accordingly, the court held that
sex-based classifications are inherently suspect, like the United States
Supreme Court found classifications based on race, alienage, and nationality.
See id. at 977-78 (citing Loving v. Virginia, 388 U.S. 1, 11, 18 L. Ed. 2d
1010, 87 S. Ct. 1817 (1967) (race); Graham v. Richardson, 403 U.S.
365, 372, 29 L. Ed. 2d 534, 91 S. Ct. 1848 (1971) (alienage); Oyama v.
California, 332 U.S. 633, 646, 92 L. Ed. 249, 68 S. Ct. 269 (1948)
(nationality)). Although the Oregon Supreme Court has not
addressed whether lesbians and gay men are a suspect classification, the
Oregon Court of Appeals has recently done so. See Tanner v. Oregon Health
Sciences Univ., 157 Ore. App. 502, 971 P.2d 435 (Or. Ct. App. 1998). In
Tanner, the court held that Article I, Section 20 of the Oregon Constitution
requires the Oregon Health Sciences University to extend health and life
insurance benefits to the unmarried domestic partners of its homosexual
employees. See 971 P.2d at 448. The Tanner court examined the Hewitt
two-part test for defining suspect classes and determined that
"immutability -- in the sense of inability to alter or change -- is not
necessary" because alienage and religious affiliation -- which may be
changed -- have been held to be suspect classifications. Thus, it held that
defining a suspect class depends not on the immutability of a class-defining
characteristic, but upon (1) whether the characteristic has historically been
regarded as defining a distinct socially-recognized group, and if so (2)
whether that group has been the subject of adverse social or political
stereotyping. See id. at 446. Applying this test, the court
concluded that the class of homosexual couples is clearly defined in terms of
stereotyped personal and social characteristics; is widely regarded as a
distinct, socially recognized group; and indisputably has "been and
continue[s] to be the subject of adverse social and political stereotyping
and prejudice." Id. at 447. Thus, the court found that the plaintiffs,
three lesbian couples, were members of a suspect class. In this concurrence, I do not detail
a suspect-classification analysis, but I can summarize my opinion by saying
that I agree with the general framework adopted by the Oregon courts in
Hewitt and Tanner. These decisions concerning Article I, Section 20 of that
state's constitution are entirely consistent with the law we have developed
under Chapter I, Article 7 of the Vermont Constitution, at least prior to
this decision. I find Hewitt and Tanner far more persuasive than the
majority's decision, which backtracks from the established legal framework
under Article 7 and fails to provide any guidelines whatsoever for the
Legislature, the trial courts, or Vermonters in general to predict the
outcome of future cases. I agree with the majority that
the State cannot justify the denial of legal benefits and responsibilities of
civil marriage to gay and lesbian couples. And I agree that the appropriate
remedy is either to require the State to extend the option of receiving these
benefits and associated responsibilities to these couples, or to require that
it offer the opportunity for civil marriage on equal terms. I will briefly
explain my disagreement with the majority's rationale for reaching the same
result. The majority's analysis under
Chapter I, Article 7 proceeds in three steps: (1) there is one equality
standard imposed by Article 7, and it applies to claims of civil rights
discrimination and economic discrimination alike; (2) the equality standard
is higher, that is, more active, than the standard imposed by the Equal
Protection Clause of the Fourteenth Amendment for analyzing claims of
economic discrimination; and (3) under the new standard, the denial of the
benefits of marriage to lesbians and gay men violates Chapter I, Article 7.
In the first two steps, the majority makes statements entirely contrary to
our existing Article 7 jurisprudence. As to the third step, I find no
standard in the Court's decision - it is entirely a matter of
"judgment." The first step in the Court's
analysis requires overruling a long series of precedents holding that where a
statutory scheme affects fundamental constitutional rights or involves
suspect classifications, Article 7 requires "a more searching
scrutiny." Brigham, 166 Vt. at 265, 692 A.2d at 396. n1 Among the
decisions that have stated this standard are L'Esperance v. Town of
Charlotte, 167 Vt. 162, 165, 704 A.2d 760, 762 (1997); McCallum, 165
Vt. at 457, 686 A.2d at 936-37; Benning v. State, 161 Vt. 472, 486,
641 A.2d 757, 764 (1994); In re Sherman Hollow, Inc., 160 Vt. 627,
628, 641 A.2d 753, 755 (1993) (mem.); Oxx v. Department of Taxes, 159
Vt. 371, 376, 618 A.2d 1321, 1324 (1992); Hodgeman v. Jard Co., 157
Vt. 461, 464, 599 A.2d 1371, 1373 (1991); State v. George, 157 Vt.
580, 588, 602 A.2d 953, 957 (1991); Town of Sandgate v. Colehamer, 156
Vt. 77, 88, 589 A.2d 1205, 1211 (1990); and Choquette v. Perrault, 153
Vt. 45, 51-52, 569 A.2d 455, 459 (1989). n2 The majority barely
acknowledges the multi-tiered standard stated in those cases, and dismisses
it as a "rigid" analysis. See Vt. at
, 744 A.2d at 873, 1999 Vt. LEXIS 406. It is ironic that in a
civil rights case we overrule our precedent requiring the State to meet a
higher burden in civil rights cases, but still conclude, under the lower
standard, that the State has not met its burden. n1 The majority's
characterization of Brigham is neither fair nor accurate. The majority states
that Brigham "acknowledged the federal standard," but
"eschewed the federal categories of analysis." Vt. at
, 744 A.2d at 873, 1999 Vt. LEXIS 406, *22. Far beyond
"acknowledging" the federal standards, Brigham held explicitly that
they applied under Article 7 -- a holding now implicitly overruled by the
majority decision. Rather than eschewing the federal standards, we held that
the educational financing system advanced no "legitimate governmental
purpose" under any standard. See Brigham, 166 Vt. at 265, 692 A.2d at
396. n2 The majority's statement that
suspect class analysis is "often effectively ignored in our more recent
decisions" is inaccurate, unless our statements that we need not reach
the issue in a case somehow "ignores" suspect-class analysis. Vt. at
, 744 A.2d at 873, 1999 Vt. LEXIS 406. See, e.g., MacCallum,
165 Vt. at 457 n.1, 686 A.2d at 938 n.1 (in view of our disposition, we
need not reach plaintiff's claim that adopted persons are suspect class). The effect of the majority
decision is that the State now bears no higher burden to justify
discrimination against African-Americans or women than it does to justify
discrimination against large retail stores as in Ludlow. I doubt that the
framers of our Constitution, concerned with preventing the equivalent of
British royalty, would believe that the inevitable line-drawing that must
occur in economic regulation should be equated with the denial of civil and
human rights. I do not believe that the new standard is required by, or even
consistent with, the history on which the majority bases it. The second step is also at
variance with our Article 7 law, even as it seeks to rely upon it. The
majority holds that Article 7 requires a more active standard of
constitutional review than the Fourteenth Amendment, as interpreted by the
United States Supreme Court, in the absence of a fundamental right or suspect
classification. See 170 Vt. at 203-04, 744 A.2d at 871-72, 1999 Vt. LEXIS
406. This means that in the future this Court is less likely to defer to
the Legislature and more likely to find its acts unconstitutional than would
the United States Supreme Court. Again, I find great irony in the fact that
we are doing this unnecessarily in a case where the main theme of the State
and many amici is that we must defer to the Legislature on the issue before
us. I agree that Ludlow, Choquette,
and MacCallum contain important holdings about how equality challenges are
addressed by a state court. Ludlow holds that we must look at justifications
for distinctions that are realistic in view of Vermont's unique legal
culture. See Ludlow, 141 Vt. at 268, 448 A.2d at 795. Choquette and
MacCallum hold that such justifications must be relevant to contemporary
circumstances and not be wholly archaic. See Choquette, 153 Vt. at 53-54,
569 A.2d at 460; MacCallum, 165 Vt. at 461, 686 A.2d at 940. None of these decisions demonstrate
that "Vermont decisions reflect a very different approach from current
federal jurisprudence," which is how the majority characterizes
them. 744 A.2d at 871, 1999 Vt.
LEXIS 406. Indeed, we have said over and over that the test, where no
fundamental right or suspect class is involved, "is the same under the
Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution" as under Article 7.
Lorrain v. Ryan, 160 Vt. 202, 212, 628 A.2d 543, 550 (1993);
see Brigham, 166 Vt. at 265, 692 A.2d at 395; L'Esperance, 167 Vt.
at 165, 704 A.2d at 762. Although the majority seeks to rely on isolated
statements from Ludlow, in fact, we are by this decision creating a new, more
active standard of review in Article 7 challenges. n3 n3 My concern about the effect of
this decision as a precedent is heightened by the majority's treatment of the
Ludlow decision. It is fair to say that for some purposes, there have been
two versions of the Ludlow decision. First, there is the one we have
described in dicta, usually as a historical event. See State v. Brunelle,
148 Vt. 347, 351, 534 A.2d 198, 201-02 (1987); Hodgeman, 157 Vt. at
464, 599 A.2d at 1373. This one holds that Article 7 is "more
stringent than the federal constitutional standard which requires only a
rational justification." Brunelle, 148 Vt. at 351, 534 A.2d at
201-02. Second, there is the Ludlow decision that we have actually used
in deciding cases. See, e.g., Choquette, 153 Vt. at 52, 569 A.2d at 459;
In re Property of One Church Street, 152 Vt. 260, 263-65, 565 A.2d 1349,
1350-51 (1989). This version of Ludlow holds that the Article 7 standard
is the reasonable-relationship test applicable under the Fourteenth Amendment
to the United States Constitution. See Choquette, 153 Vt. at 52, 569 A.2d
at 459; see also Lorrain, 160 Vt. at 212, 628 A.2d at 550 (test
under Article 7 is same as that under federal Equal Protection Clause). Obviously, these versions of
Ludlow are irreconcilable, and only one can be accurate. In case after case,
advocates pursuing Article 7 challenges have tried, and failed, to get us to
adopt the first version of Ludlow as the basis for a favorable decision. The
first version has appeared only in dicta in two isolated cases. Today,
seventeen years after the Ludlow decision, the advocates have finally
succeeded, with a begrudging acknowledgment from the majority that our
decisions "have consistently recited" the federal test and are now
wholesale overruled. In view of this history of
treatment of Ludlow, I find incredible the majority's statement that
"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,'" Vt. at
, 744 A.2d at 873, 1999 Vt.
LEXIS 406, *22, quoting Ludlow as if all of our decisions after Ludlow
disingenuously mouthed one deferential constitutional standard but silently
employed a more activist standard. If one general statement could be made, it
would be that we have never actually employed the standard quoted by the
majority in any case, until this one. My fear is that once we get
beyond this controversial decision, we will end up with two versions of it.
Will we go back to minimalist review when we get a claim of discrimination,
for example, between large stores and small ones, or will the more activist
review promised by this decision prevail? Our history in applying Ludlow says
that we will do the former, which I find to be the more desirable, but a
serious blow will have been dealt to our ability to develop neutral
constitutional doctrine. We have wisely, in the past,
avoided the path the majority now chooses, a path worn and abandoned in many
other states. When Justice Hayes decried the failure of litigants to raise
state constitutional issues, see State v. Jewett, 146 Vt. 221, 229, 500
A.2d 233, 238 (1985), he could not have been referring to challenges
under state anti-emolument and equality provisions. In state after state,
throughout the nineteenth and early twentieth centuries, state supreme courts
routinely struck down economic and social welfare statutes under these
provisions using an analysis similar to that employed by the majority in this
case. See H. Gillman, The Constitution Besieged: The Rise and Demise of
Lochner Era Police Powers Jurisprudence 9 (1993). For example, in Auditor
of Lucas County v. State, 75 Ohio St. 114, 78 N.E. 955, 957 (Ohio 1906),
the Ohio Supreme Court struck down an Ohio law that provided a stipend of $
25 each quarter to adult blind persons because it was over-inclusive --
including rich and poor -- and under-inclusive -- including only some
disabled persons. See also City of Cincinnati v. Cook, 107 Ohio St. 223,
140 N.E. 655, 656 (Ohio 1923) (striking down ordinance that allowed
parking in front of train station only with consent of supervisor of station,
in part because it created "privilege or immunity" in those who
were allowed to park); Low v. Rees Printing Co., 41 Neb. 127, 59 N.W. 362,
368 (Neb. 1894) (striking down eight-hour-day law because it exempted
farm or domestic labor); State v. Pennoyer, 65 N.H. 113, 18 A. 878, 881
(N.H. 1889) (striking down statute requiring licensing of all physicians,
except those who resided in only one town between 1875 and 1879, because it
imposed unequal burden on members of same class); Millett v. People, 117
Ill. 294, 7 N.E. 631, 636 (Ill. 1886) (striking down statute requiring
mine operators who tied wages to amount of coal extracted to keep scale at
mine so coal could be weighed before managers had chance to separate unusable
material); In re Jacobs, 98 N.Y. 98, 112-14 (1885) (striking down act
addressing deplorable working conditions under which cigar makers labored in
tenements by banning the manufacturing of cigars in those dwellings); Ex
parte Westerfield, 55 Cal. 550, 551 (Sup. Ct. 1880) (striking down law
making it misdemeanor for bakers to force employees to work between six
o'clock Saturday evening and six o'clock Sunday evening). Most of these decisions reflect
judicial attitudes prevalent in the era of Lochner v. New York, 198 U.S.
45, 49 L. Ed. 937, 25 S. Ct. 539 (1905), when the United States Supreme
Court was routinely striking down economic and social welfare legislation. As
the United States Supreme Court modified its jurisprudence to give primacy to
the federal and state legislative role in economic and social welfare
legislation, state courts did likewise, often on the basis that Fourteenth
Amendment jurisprudence was equally applicable under state due process and
equality provisions. See Gillman, supra, at 62. See, e.g., Department of
Mental Hygiene v. Kirchner, 62 Cal. 2d 586, 400 P.2d 321, 322, 43 Cal. Rptr.
329 (Cal. 1965) (Fourteenth Amendment to federal constitution and § 11 and 21 of Article I of California
Constitution provide generally equivalent but independent protections in
their respective jurisdictions); People v. Willi, 109 Misc. 79, 179 N.Y.S.
542, 547 (Del. Cty. Ct. 1919) (methods of analysis under Fourteenth
Amendment and state constitution are identical); City of Chicago v. Rhine,
363 Ill. 619, 2 N.E.2d 905, 908 (Ill. 1936) (simultaneously analyzing
federal and state equal protection claims); Ex parte Caldwell, 82 Neb.
544, 118 N.W. 133, 134 (Neb. 1908) (upholding under state and federal constitutions
statute prohibiting common labor on Sunday). The Vermont Supreme Court never
adopted an activist stance in reviewing economic and social welfare
legislation, and history shows we chose the right course. We could have
relied upon the looser and more activist language that prevailed in the
federal cases in the early twentieth century -- the same language that the
majority relies upon today, 744 A.2d at 872 n.4, 1999 Vt. LEXIS 406,
*18 -- to substitute our judgment for the Legislature, but wisely we did not.
Unfortunately, we have now resurrected that approach. I can find no
justification for the holding that Article 7 requires a more activist
approach than the Fourteenth Amendment for reviewing social welfare and
economic legislation. We were right in Lorrain, Brigham, and L'Esperance on
this point and should adhere to those precedents. Finally, concerning the third
step of the majority's analysis, I question whether the majority's new
standard is ascertainable, is consistent with our limited role in
constitutional review, and contains appropriate judicial discretion. As
Justice Johnson explains in her dissent, see 744 A.2d at 907-08 n.13, 1999
Vt. LEXIS 406, the strength of the federal approach is that it
disciplines judicial discretion and promotes predictability. See C. Sunstein,
Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 6, 78 (1996).
Indeed, the Oregon courts have followed the federal approach in this area to
avoid a balancing process "of pragmatic considerations about which
reasonable people may differ over time," Kennedy, 666 P.2d at 1321,
and "policy choices disguised as ad hoc evaluations based on comparison
of incommensurables," Schuman, supra, at 227. The majority calls the
federal approach "rigid" at one point 744 A.2d at 877, 1999 Vt.
LEXIS 406, but then describes it, as applied in Tanner, as an invitation
to subjective judicial decision-making.
744 A.2d at 878 n.10, 1999 Vt. LEXIS 406. The two criticisms
are as inconsistent as any criticisms could be. I accept the former -- rigid
-- as accurate, at least in comparison with the wide judicial discretion the
majority claims here as an alternative. The latter -- subjective judicial
decision-making -- is, however, the least accurate criticism the majority
could level. Two points about the new standard
are particularly troublesome for me. The majority now requires that
legislative classifications be "reasonably necessary to accomplish the
State's claimed objectives." 744 A.2d at 878, 1999 Vt. LEXIS 406.
In our imperfect world, few legislative classifications are
"necessary," and most legislation could be more narrowly tailored
to the state's objective. I cannot square this standard with our limited role
in constitutional adjudication. As I noted earlier, while language to this
effect appears in Ludlow, it has never been used as the basis of one of our
decisions until today. More importantly, I cannot
endorse, in this vitally important area of constitutional review, a standard
that relies wholly on factors and balancing, with no mooring in any criteria
or guidelines, however imperfect they may be. On this point, I agree with
Justice Johnson. See 744 A.2d at 908 n.13, 1999 Vt. LEXIS 406. I
accept the majority's assertion that it has attempted to avoid a standard
based on "personal notions," and that all constitutional
adjudication requires reasoned judgment, but I do not believe that it has
succeeded in properly applying the critical considerations it has identified.
744 A.2d at 879, 1999 Vt. LEXIS 406. Instead of mooring its analysis
within the framework of fundamental rights and suspect classifications, the
majority professes to make its new Article 7 standard "objective and
grounded" by requiring courts, in balancing the competing interests, to
"look to the history and 'traditions from which [the State] developed'
as well as those 'from which it broke.'" 744 A.2d at 879, 1999 Vt.
LEXIS 406. It is difficult to conceive that any persons sitting on this
Court, whatever their philosophical persuasions, would be insensitive to the
history and traditions from which Vermont developed, and those from which it
broke, but how this standard will be applied to Article 7 challenges is not
at all predictable. In the end, the approach the majority has developed
relies too much on the identities and personal philosophies of the men and
women who fill the chairs at the Supreme Court, too little on ascertainable
standards that judges of different backgrounds and philosophies can apply
equally, and very little, if any, on deference to the legislative branch. The final irony in this decision
for me is that the balancing and weighing process set forth in the Court's
opinion describes exactly the process we would expect legislators to go
through if they were facing the question before us. We are judges, not
legislators. For the above reasons, I concur
in the mandate, but respectfully disagree with Part II of the Court's
decision, the majority's rationale for reaching this mandate. JOHNSON, J., concurring in part and dissenting in part.
Forty years ago, in reversing a decision that had denied injunctive relief
for the immediate desegregation of publicly owned parks and recreational
facilities in Memphis, Tennessee, a unanimous United States Supreme Court
stated: The basic guarantees of our
Constitution are warrants for the here and now and, unless there is an
overwhelmingly compelling reason, they are to be promptly fulfilled. Watson v. City
of Memphis, 373 U.S. 526, 533, 10 L. Ed. 2d 529, 83 S. Ct. 1314 (1963). Plaintiffs come before this Court
claiming that the State has unconstitutionally deprived them of the benefits
of marriage based solely upon a discriminatory classification that violates
their civil rights. They ask the Court to remedy the unlawful discrimination
by enjoining the State and its municipalities from denying them the license
that serves to identify the persons entitled to those benefits. The majority
agrees that the Common Benefits Clause of the Vermont Constitution entitles
plaintiffs to obtain the same benefits and protections as those bestowed upon
married opposite-sex couples, yet it declines to give them any relief other
than an exhortation to the Legislature to deal with the problem. I concur
with the majority's holding, but I respectfully dissent from its novel and
truncated remedy, which in my view abdicates this Court's constitutional duty
to redress violations of constitutional rights. I would grant the requested
relief and enjoin defendants from denying plaintiffs a marriage license based
solely on the sex of the applicants. The majority declares that the
issue before this Court does not turn on the heated moral debate over
intimate same-sex relationships, and further, that this Court has a
constitutional responsibility to consider the legal merits of even
controversial cases. See 744 A.2d at 867, 1999 Vt. LEXIS 406. Yet,
notwithstanding these pronouncements, the majority elects to send plaintiffs
to an uncertain fate in the political caldron of that very same moral debate.
n1 And to what end? Passing this case on to the Legislature will not
alleviate the instability and uncertainty that the majority seeks to avoid,
and will unnecessarily entangle this Court in the Legislature's efforts to
accommodate the majority's mandate within a "reasonable period of
time." 744 A.2d at 887, 1999 Vt. LEXIS 406. n1 In the 1999 legislative
session, while the instant case was pending before this Court, fifty-seven
representatives signed H. 479, which sought to amend the marriage statutes by
providing that a man shall not marry another man, and a woman shall not marry
another woman. In 1948, when the California
Supreme Court struck down a state law prohibiting the issuance of a license
authorizing interracial marriages, the court did not suspend its judgment to
allow the legislature an opportunity to enact a separate licensing scheme for
interracial marriages. See Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17, 29
(Cal. 1948) (granting writ of mandamus compelling county clerk to issue
certificate of registry). Indeed, such a mandate in that context would be
unfathomable to us today. Here, as in Perez, we have held that the State has
unconstitutionally discriminated against plaintiffs, thereby depriving them
of civil rights to which they are entitled. Like the Hawaii Circuit Court in Baehr
v. Miike, No. Civ. 91-1394, 1996 WL 694235 (Haw. Cir. Ct., Dec. 3, 1996),
which rejected the State's reasons for excluding same-sex couples from
marriage, we should simply enjoin the State from denying marriage licenses to
plaintiffs based on sex or sexual orientation. That remedy would provide
prompt and complete relief to plaintiffs and create reliable expectations
that would stabilize the legal rights and duties of all couples. I. My dissent from the majority's mandate
is grounded on the government's limited interest in dictating public morals
outside the scope of its police power, and the differing roles of the
judicial and legislative branches in our tripartite system of government. I
first examine the State's narrow interest in licensing marriages, then
contrast that interest with the judiciary's fundamental duty to remedy civil
rights violations, and lastly emphasize the majority's failure to adequately
explain why it is taking the unusual step of suspending its judgment to allow
the Legislature an opportunity to redress the unconstitutional discrimination
that we have found. This case concerns the secular
licensing of marriage. The State's interest in licensing marriages is
regulatory in nature. See Southview Coop. Housing v. Rent Control Bd., 396
Mass. 395, 486 N.E.2d 700, 704 (Mass. 1985) ("Licensing is simply a
means of regulating."). The regulatory purpose of the licensing scheme
is to create public records for the orderly allocation of benefits,
imposition of obligations, and distribution of property through inheritance.
Thus, a marriage license merely acts as a trigger for state-conferred
benefits. See Priddy v. City of Tulsa, 882 P.2d 81, 83 (Okla. Crim. App.
1994) (license gives to licensee special privilege not accorded to
others, which licensee otherwise would not enjoy). In granting a marriage
license, the State is not espousing certain morals, lifestyles, or
relationships, but only identifying those persons entitled to the benefits of
the marital status. n2 See People ex rel Deukmejian v. County of
Mendocino, 36 Cal. 3d 476, 683 P.2d 1150, 1155, 204 Cal. Rptr. 897 (Cal.
1984) (licensing regulates activity based on determination of
qualification of licensee). n2 Although the State's licensing
procedures do not signal official approval or recognition of any particular
lifestyles or relationships, commentators have noted that denying same-sex
couples a marriage license is viewed by many as indicating that same-sex
relationships are not entitled to the same status as opposite-sex
relationships. See, e.g., C. Christensen, If Not Marriage? On Securing Gay
and Lesbian Family Values by a "Similacrum of Marriage", 66
Fordham L. Rev. 1699, 1783-84 (1998) (most far reaching consequence of
legalizing same-sex marriage would be symbolic shedding of sexual outlaw
image and civil recognition of shared humanity); D. Chambers, What If? The
Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male
Couples, 95 Mich. L. Rev. 447, 450 (1996) (allowing same-sex couples
to marry would signify acknowledgement of same-sex couples as equal
citizens). This Court has recognized that singling out a particular group for
special treatment may have a stigmatizing effect more significant than any
economic consequences. See MacCallum v. Seymour's Administrator, 165 Vt.
452, 460, 686 A.2d 935, 939 (1996) (noting that symbolic and
psychological damage resulting from unconstitutional classification depriving
adopted children of right to inherit from collateral kin may be more significant
than any concern over material values). The United States Supreme Court has
also recognized this phenomenon. See Romer v. Evans, 517 U.S. 620, 634,
134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996) (laws singling out gays and
lesbians for special treatment "raise the inevitable inference that the
disadvantage imposed is born of animosity toward the class of persons
affected"); Heckler v. Mathews, 465 U.S. 728, 739-40, 79 L. Ed. 2d
646, 104 S. Ct. 1387 (1984) (stigmatizing members of disfavored group as
less worthy participants in community "can cause serious noneconomic
injuries . . . solely because of their membership in a disfavored
group"). Because enjoining defendants from denying plaintiffs a marriage
license is the most effective and complete way to remedy the constitutional
violation we have found, it is not necessary to reach the issue of whether
depriving plaintiffs of the "status" of being able to obtain the
same state-conferred marriage license provided to opposite-sex couples violates
their civil rights. Apart from
establishing restrictions on age and consanguinity related to public health
and safety, see 18 V.S.A. § 5142
(minors and incompetent persons); 15 V.S.A. § § 1, 2 (consanguinity), the statutory
scheme at issue here makes no qualitative judgment about which persons may
obtain a marriage license. See Leduc v. Commonwealth, 421 Mass. 433, 657
N.E.2d 755, 756-57 (Mass. 1995) (historical aim of licensure is generally
to preserve public health, safety and welfare). Hence, the State's interest
concerning the challenged licensing statute is a narrow one, and plaintiffs
have prevailed on their constitutional claim because the State has failed to
raise any legitimate reasons related to public health or safety for denying
marital benefits to same-sex couples. See Commonwealth v. Bonadio, 490 Pa.
91, 415 A.2d 47, 50 (Pa. 1980) ("With respect to regulation of
morals, the police power should properly be exercised to protect each
individual's right to be free from interference in defining and pursuing his
own morality but not to enforce a majority morality on persons whose conduct
does not harm others."). In my view, the State's interest in licensing
marriages would be undisturbed by this Court enjoining defendants from
denying plaintiffs a license. While the State's interest in
licensing marriages is narrow, the judiciary's obligation to remedy
constitutional violations is central to our form of government. Indeed, one
of the fundamental principles of our tripartite system of government is that
the judiciary interprets and gives effect to the constitution in cases and
controversies concerning individual rights. See Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 163, 177-78, 2 L. Ed. 60 (1803); see also Shields v.
Gerhart, 163 Vt. 219, 223, 658 A.2d 924, 927-28 (1995) (emphasizing
"the preeminence of the Vermont Constitution in our governmental
scheme," which includes right of citizens under Chapter I, Article 4 to
find a certain remedy promptly and without delay). n3 n3 Unlike the Vermont
Constitution, see Vt. Const. ch. II, §
5 ("The Legislative, Executive, and Judiciary departments, shall
be separate and distinct, so that neither exercise the powers properly
belonging to the others."), the United States Constitution does not
contain an explicit separation-of-powers provision; however, the United
States Supreme Court has derived a separation-of-powers requirement from the
federal constitution's statement of the powers of each of the branches of
government. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721-22, 92 L. Ed.
2d 583, 106 S. Ct. 3181 (1986). Because we have relied upon federal
separation-of-powers jurisprudence in interpreting Chapter II, § 5, see Trybulski v. Bellows Falls
Hydro-Elec. Corp., 112 Vt. 1, 7, 20 A.2d 117, 120 (1941), I draw upon
federal case law for analysis and support in discussing separation-of-powers
principles. See In re D.L., 164 Vt. 223, 228 n.3, 669 A.2d 1172, 1176 n.3
(1995); see also In re Constitutionality of House Bill 88, 115 Vt.
524, 529, 64 A.2d 169, 172 (1949) (noting that judicial power of Vermont
Supreme Court and United States Supreme Court is same). This power is "not merely to
rule on cases, but to decide them." Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211, 218-19, 131 L. Ed. 2d 328, 115 S. Ct. 1447 (1995) (emphasis
in original); see Records of the Council of Censors of the State of Vermont
431 (P. Gillies and D. Sanford eds., 1991) (supreme judicial tribunals are to
regard constitution as fundamental law superior to legislative enactment;
consequently, if enactment is repugnant to constitution, judges are bound to
pronounce it inoperative and void). As this Court has stated on numerous
occasions, when measures enacted pursuant to the State's police powers have
no real or substantial relation to any legitimate purpose of those powers and
invade individual "'rights secured by the fundamental law, it is the
duty of the courts to so adjudge, and thereby give effect to the
Constitution.'" State v. Morse, 84 Vt. 387, 394, 80 A. 189, 191-92
(1911) (quoting Mugler v. Kansas, 123 U.S. 623, 31 L. Ed. 205, 8 S.
Ct. 273 (1887)); see Beecham v. Leahy, 130 Vt. 164, 172, 287 A.2d 836,
841 (1972) ("It is the function of the judicial branch to pass upon
the appropriateness and reasonableness of the legislative exercise of police
power."). This Court emphasized in Morse that "in its last
analysis, the question of the validity of such measures [enacted under the
police powers] is one for the court." 84 Vt. at 394, 80 A. at 191. The power of courts to fashion
remedies for constitutional violations is well established in both this
Court's and the United States Supreme Court's jurisprudence concerning
individual rights and equal protection. See MacCallum v. Seymour's Adm'r,
165 Vt. 452, 462, 686 A.2d 935, 941 (1996) (holding that statute denying
adopted children right to inherit from collateral heirs violated Common
Benefits Clause, and declaring plaintiff to be lawful heir of estate of
collateral relative); Medical Ctr. Hosp. v. Lorrain, 165 Vt. 12, 14-15,
675 A.2d 1326, 1329 (1996) (determining that doctrine making husbands
liable to creditors for necessary items provided to wives violated principle
of equal protection when applied only to men, and choosing to abolish
doctrine rather than to extend it to both men and women); see also Heckler
v. Mathews, 465 U.S. 728, 740, 79 L. Ed. 2d 646, 104 S. Ct. 1387 (1984)
(when right invoked is that to equal treatment, "the appropriate remedy
is a mandate of equal treatment"); Davis v. Passman, 442 U.S. 228,
241-42, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979) (within "great
outlines" of Constitution, "judiciary is clearly discernible as the
primary means through which these rights may be enforced"; unless
Constitution commits issue to coordinate branch, "we presume that
justiciable constitutional rights are to be enforced through the
courts"). Particularly in civil rights cases involving discrimination
against a disfavored group, "courts do not need specific [legislative]
authorization to employ a remedy, at law or in equity, that is tailored to correct
a constitutional wrong." Aguayo v. Christopher, 865 F. Supp. 479,
487-88 (N.D. Ill. 1994) (finding unconstitutional on its face statute
making citizenship available to foreign-born children of citizen fathers, but
not citizen mothers, and issuing judgment declaring plaintiff to be citizen). Accordingly, absent
"compelling" reasons that dictate otherwise, it is not only the
prerogative but the duty of courts to provide prompt relief for violations of
individual civil rights. See Watson, 373 U.S. at 532-33 (defendants
have heavy burden of showing that delay in desegregating public parks and
recreational facilities is "manifestly compelled by constitutionally
cognizable circumstances"). This basic principle is designed to assure
that laws enacted through the will of the majority do not unconstitutionally
infringe upon the rights of a disfavored minority. There may be situations, of
course, when legislative action is required before a court-ordered remedy can
be fulfilled. For example, in Brigham v. State, 166 Vt. 246, 249, 269, 692
A.2d 384, 386, 398 (1997), this Court declared that Vermont's system for
funding public education unconstitutionally deprived Vermont schoolchildren
of a right to an equal educational opportunity, and then retained
jurisdiction until the Legislature enacted legislation that satisfied the
Court's holding. Plainly, it was not within the province of this Court to
create a new funding system to replace the one that we had declared
unconstitutional. The Legislature needed to enact legislation that addressed
issues such as the level of state funding for public schools, the sources of
additional revenue, and the framework for distributing state funds. See Act 60, 16 V.S.A. § § 4000-4029. In finding a funding source,
the Legislature had to consider whether to apply a flat or progressive tax on
persons, property, entities, activities or income. These considerations, in
turn, required the Legislature to consider what state programs would have to
be curtailed to make up for the projected additional school funding. All of
these complex political decisions entailed core legislative functions that
were a necessary predicate to fulfillment of our holding. See Brigham, 166
Vt. at 249, 692 A.2d at 386 (devising system for funding public education
lies within prerogative of Legislature). A completely different situation
exists here. We have held that the Vermont Constitution entitles plaintiffs
"to obtain the same benefits and protections afforded by Vermont law to
married opposite-sex couples." 744
A.2d at 882, 1999 Vt. LEXIS 406. Given this holding, the most
straightforward and effective remedy is simply to enjoin the State from
denying plaintiffs a marriage license, which would designate them as persons
entitled to those benefits and protections. n4 No legislation is required to
redress the constitutional violation that the Court has found. Cf. Watson,
373 U.S. at 532 (desegregation of
recreational facilities does not present same kind of cognizable difficulties
inherent in desegregating schools). Nor does our paramount interest in
vindicating plaintiffs' constitutional rights interfere in any way with the
State's interest in licensing marriages. Far from intruding upon the State's
narrow interest in its licensing statute, allowing plaintiffs to obtain a
license would further the overall goals of marriage, as defined by the
majority -- to provide stability to individuals, their families, and the
broader community by clarifying and protecting the rights of married persons.
See 744 A.2d at 889, 1999 Vt. LEXIS
406. Cf. In re B.L.V.B., 160
Vt. 368, 372, 375, 628 A.2d 1271, 1274-75 (1993) (purpose of adoption
statute read in its entirety is to clarify and protect legal rights of
adopted persons, not to proscribe adoptions by certain combinations of individuals;
denying children of same-sex partners security of legally recognized
relationship with second parent serves no legitimate state interest). n4 I do not misinterpret the
majority's holding. See 744 A.2d at 887, at 1999 Vt. LEXIS 406. I am
aware that the Legislature is not obligated to give plaintiffs a marriage
license, or any other remedy for that matter. It is this Court, not the
Legislature, that has the duty to remedy the constitutional violation we have
found. We are left to speculate why the majority is not enjoining defendants
from denying plaintiffs the regulatory license that they seek and that would
entitle them to the same benefits and protections to which they are entitled
under the majority's holding. The majority declines to provide
plaintiffs with a marriage license, however, because a sudden change in the
marriage laws "may have disruptive and unforeseen consequences,"
and "uncertainty and confusion could result." 744 A.2d at 887, 1999 Vt. LEXIS 406.
Thus, within a few pages of rejecting the State's doomsday speculations as a
basis for upholding the unconstitutionally discriminatory classification, the
majority relies upon those same speculations to deny plaintiffs the relief to
which they are entitled as the result of the discrimination. See 744 A.2d at 887, 1999 Vt. LEXIS 406. During the civil rights movement
of the 1960's, state and local governments defended segregation or gradual
desegregation on the grounds that mixing the races would lead to interracial
disturbances. The Supreme Court's "compelling answer" to that
contention was "that constitutional rights may not be denied simply
because of hostility to their assertion or exercise." See Watson, 373
U.S. at 535. Here, too, we should not relinquish our duty to redress the
unconstitutional discrimination that we have found merely because of
"personal speculations" or "vague disquietudes." Id.
at 536. While the laudatory goals of preserving institutional credibility
and public confidence in our government may require elected bodies to wait
for changing attitudes concerning public morals, those same goals require
courts to act independently and decisively to protect civil rights guaranteed
by our Constitution. n5 n5 The majority states that my
analogy to the circumstances in Watson is "flawed" because (1) we
are not confronting the evil of institutionalized racism; and (2) our ruling
today is "decidedly new doctrine."
744 A.2d at 888, 1999 Vt. LEXIS 406, *62-63. The majority's
first point implies that our duty to remedy unconstitutional discrimination
is somehow limited when that discrimination is based on sex or sexual
orientation rather than race. I would not prioritize among types of civil
rights violations; our duty to remedy them is the same, once a constitutional
violation is found. Regarding the second point, the
Court in Watson enunciated "the usual principle that any deprivation of
constitutional rights calls for prompt rectification," stating further
that the unavoidable delay in implementing the desegregation of schools
ordered in Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S.
Ct. 686 (1954), was "a narrowly drawn, and carefully limited,
qualification upon usual precepts of constitutional adjudication and is not
to be unnecessarily expanded in application." 373 U.S. at 532-33.
The majority has not explained why it is diverging from that basic principle
in this case. Further, as both the majority and concurrence acknowledge, see 744
A.2d at 891, 1999 Vt. LEXIS 406 (Dooley, J., concurring), allowing
same-sex couples to obtain the benefits and protections of marriage is a
logical extension of Vermont's legislatively enacted public policy
prohibiting discrimination on the basis of sex and sexual orientation, see
1991, No. 135 (Adj. Sess.), decriminalizing consensual homosexual conduct
between adults, see 1977, No. 51, §
22, and permitting same-sex partners to adopt children, see 15A V.S.A.
§ 1-102(b) (codifying holding in B.L.V.B.,
160 Vt. at 369, 628 A.2d at 1272, which allowed same-sex partner of
natural parent to adopt parent's child without terminating parent's rights);
15A V.S.A. § 1-112 (giving family
court jurisdiction to adjudicate issues pertaining to parental rights and
responsibilities and child support with respect to adopted children of
domestic partners). Yet, the majority suggests that there is
"wisdom" in delaying relief for plaintiffs until the Legislature
has had a chance to act, 744 A.2d at 888, 1999 Vt. LEXIS 406, much as
the City of Memphis urged the "wisdom of proceeding slowly and gradually
in its desegregation efforts." Watson, 373 U.S. at 528. None of the cases cited by the majority support its
mandate suspending the Court's judgment to allow the Legislature to provide a
remedy. In Linkletter v. Walker, 381 U.S. 618, 622, 14 L. Ed. 2d 601, 85
S. Ct. 1731 (1965), the issue was whether the decision in Mapp v.
Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961) extending the
exclusionary rule n6 to the states through the federal due process clause
applied to all state court convictions that had become final before Mapp. The
Court declined to apply Mapp retroactively, stating that both defendants and
the states had relied upon the decision that Mapp had overruled, that the
fairness of the underlying trials had not been placed at issue, and that
applying Mapp retroactively would severely tax the administration of justice
in state courts. See Linkletter, 381 U.S. at 637-39. After noting that
it was not concerned with "pure" prospectivity because the
exclusionary rule had been applied in Mapp itself, the Court held that new
rules may be applied prospectively "where the exigencies of the
situation require such an application." See id. at 622, 628. n6 This rule requires the
exclusion of evidence obtained as the result of unconstitutional searches and
seizures. Unlike Linkletter, the issue here
is not whether the majority's holding should be applied retroactively or
prospectively, but rather whether the relief it has promised should be
provided promptly by this Court or at some uncertain future time by the
Legislature. Neither these plaintiffs, nor any same-sex couples seeking the
benefits and protections of marriage, obtain any relief until the Legislature
acts, or failing that, this Court acts again. Thus, the majority is not
applying its holding on even a purely prospective basis. In any event,
assuming that Linkletter continues to have vitality in cases involving civil
rights violations, see Fairfax Covenant Church v. Fairfax County Sch. Bd.,
17 F.3d 703, 709, 710 (4th Cir. 1994) (stating that Supreme Court has
recently cast serious doubt upon practice of departing from traditional rule
of retroactive application, which is "the rule inherent in the judicial
function" of applying and interpreting law in real controversies), the
"unforeseen consequences" alluded to by the majority cannot be
considered "exigencies" warranting relief only at some unspecified
future time. The other two cases cited by the
majority also concern whether court rulings should be applied prospectively or
retroactively. In those cases, the courts weighed the potential consequences
of a decision to abrogate common-law sovereign immunity -- the doctrine
declaring that the government is immune from lawsuits. See Smith v. State,
93 Idaho 795, 473 P.2d 937, 950 (Idaho 1970) (applying decision to
abrogate doctrine of sovereign immunity to cases before court but otherwise
staying decision until adjournment of following legislative session to
prevent undue hardship to government agencies that relied on doctrine); Spanel
v. Mounds View Sch. Dist. No. 621, 264 Minn. 279, 118 N.W.2d 795, 803-04
(Minn. 1962) (staying decision to abrogate sovereign immunity until
following legislative session to prevent hardship to government agencies that
relied on doctrine); cf. Presley v.
Mississippi State Highway Comm'n, 608 So. 2d 1288, 1298 (Miss. 1992)
(giving retroactive application to decision finding sovereign immunity act
unconstitutional would pose fiscally disastrous consequences to state
agencies). These courts simply acknowledged that retroactively applying their
holding abrogating sovereign immunity, without affording the legislature an
opportunity either to alter insurance coverage or enact an immunity statute,
would have potentially disastrous fiscal consequences for the state. See Hillerby
v. Town of Colchester, 167 Vt. 270, 293, 706 A.2d 446, 459 (1997)
(Johnson, J., dissenting) (favoring quasi-prospective approach that would
afford Legislature time to react to holding abrogating general municipal
immunity). That is not the situation here, where no disastrous consequences,
fiscal or otherwise, have been identified. I recognize that the Legislature
is, and has been, free to pass legislation that would provide same-sex
couples with marital benefits. But the majority does not explain why it is
necessary for the Legislature to act before we remedy the constitutional
violation that we have found. In our system of government, civil rights
violations are remedied by courts, not because we issue "Holy Writ"
or because we are "the only repository of wisdom." 744 A.2d at
888, 1999 Vt. LEXIS 406. It is because the courts "must ultimately
define and defend individual rights against government in terms independent
of consensus or majority will." L. Tribe, American Constitutional Law § 15.3, at 896 (1978). n7 n7 Judicial authority is not,
however, the ultimate source of constitutional authority. Within our
constitutional framework, the people are the final arbiters of what law
governs us; they retain the power to amend our fundamental law. If the people
of Vermont wish to overturn a constitutionally based decision, as happened in
Alaska and Hawaii, they may do so. The possibility that they may do so,
however, should not, in my view, deprive these plaintiffs of the remedy to
which they are entitled. "'Groups that have
historically been the target of discrimination cannot be expected to wait
patiently for the protection of their human dignity and equal rights while
governments move toward reform one step at a time.'" Rosenberg v.
Canada, Docket No. C22807 (Ontario Court of Appeals, April 23, 1998, at 17-18
(quoting Vriend v. Alberta, [1998] S.C.J. No. 29 (Q.L.), at para.
122). Once a court has determined that a discriminatory classification has
deprived plaintiffs of a constitutionally ripe entitlement, the court must
decide if the classification "is demonstrably justifiable in a free and
democratic society, not whether there might be a more propitious time to
remedy it." Id. at 18. Today's decision, which is little
more than a declaration of rights, abdicates that responsibility. The
majority declares that plaintiffs have been unconstitutionally deprived of
the benefits of marriage, but does not hold that the marriage laws are
unconstitutional, does not hold that plaintiffs are entitled to the license
that triggers those benefits, and does not provide plaintiffs with any other
specific or direct remedy for the constitutional violation that the Court has
found to exist. By suspending its judgment and allowing the Legislature to
choose a remedy, the majority, in effect, issues an advisory opinion that
leaves plaintiffs without redress and sends the matter to an uncertain fate
in the Legislature. Cf. In re Williams, 154 Vt. 318, 318-19, 321, 577 A.2d
686, 686-87 (1990) (statute requiring district court to hold hearings,
issue findings, and advise local legislative bodies concerning alleged police
misconduct violated separation of powers between judicial and legislative
branches by requiring courts to give advisory opinions, upon which municipalities
might or might not act). Ironically, today's mandate will only increase
"the uncertainty and confusion" that the majority states it is
designed to avoid. 744 A.2d at 887,
1999 Vt. LEXIS 406, *59-60. No decision of this Court will
abate the moral and political debate over same-sex marriage. My view as to
the appropriateness of granting plaintiffs the license they seek is not based
on any overestimate (or any estimate) of its effectiveness, nor on a
miscalculation (or any calculation) as to its likely permanence, were it to
have received the support of a majority of this Court. Rather, it is based on
what I believe are the commands of our Constitution. II. Although I concur with the
majority's conclusion that Vermont law unconstitutionally excludes same-sex
couples from the benefits of marriage, I write separately to state my belief
that this is a straightforward case of sex discrimination. As I argue below, the marriage
statutes establish a classification based on sex. Whether such classification
is legally justifiable should be analyzed under our common-benefits
jurisprudence, which until today, has been closely akin to the federal
equal-protection analysis under the Fourteenth Amendment. Therefore, the
State must show that the classification is narrowly tailored to further
important, if not compelling, interests. Not only do the rationalizations
advanced by the State fail to pass constitutional muster under this or any
other form of heightened scrutiny, n8 they fail to satisfy the rational-basis
test as articulated under the Common Benefits Clause. n9 n8 The majority misconstrues my
opinion. See 744 A.2d at 880 n.13,
1999 Vt. LEXIS 406, n.13. I do not reach the issue of whether heightened
scrutiny is appropriate for sex-based classifications under the Common
Benefits Clause. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288,
347, 80 L. Ed. 688, 56 S. Ct. 466 (1936) (Brandeis, J., concurring)
(courts should not formulate rules of constitutional law broader than is required
by precise facts to which they are to be applied). I mention federal law and
that of other states merely to acknowledge the approach of other
jurisdictions on an issue that we have not yet decided. I analyze the
sex-based classification under our current test for rational-basis review. n9 In its brief, the State notes
that if the Court declares that heightened scrutiny is applicable, it might
offer additional arguments and justifications to demonstrate a compelling
State interest in the marriage statutes. Obviously, in its extensive filings
both in the trial court and here, which included a one-hundred-page appellate
brief, the State made every conceivable argument in support of the marriage
laws, including what it perceived to be its best arguments. For the reasons
stated by the majority, see 744
A.2d at 868 n.1, 885 n.14, 1999, n.14, I agree that it would be pointless
to remand this matter for further proceedings in the trial court. "We have held that the
Common Benefits Clause in the Vermont Constitution, see ch. I, art. 7, is
generally coextensive with the equivalent guarantee in the United States
Constitution, and imports similar methods of analysis." Brigham, 166
Vt. at 265, 692 A.2d at 395; see also Lorrain, 160 Vt. at 212, 628
A.2d at 550 (test under Common Benefits Clause is same as test under
federal Equal Protection Clause). Where the statutory scheme affects a
fundamental constitutional right or involves a suspect classification,
"the State must demonstrate that any discrimination occasioned by the
law serves a compelling governmental interest, and is narrowly tailored to
serve that objective." Brigham, 166 Vt. at 265, 692 A.2d at 396.
Otherwise, classifications are constitutional if they are "reasonably
related to the promotion of a valid public purpose." MacCallum, 165
Vt. at 457, 686 A.2d at 937-38. As the majority states, the
marriage "statutes, read as a whole, reflect the common understanding
that marriage under Vermont law consists of a union between a man and a
woman." 744 A.2d at 869.
Thus, the statutes impose a sex-based classification. See, e.g., Brause v.
Bureau of Vital Statistics, No. 3AN-95-6562 CI, *6, 1998 WL 88743
(Alaska Super. Feb. 27, 1998) (prohibition on same-sex marriage is sex-based
classification); Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44, 64 (Haw. 1993)
(Levinson, J., plurality opinion) (same). A woman is denied the right to
marry another woman because her would-be partner is a woman, not because one
or both are lesbians. Similarly, a man is denied the right to marry another
man because his would-be partner is a man, not because one or both are gay.
Thus, an individual's right to marry a person of the same sex is prohibited
solely on the basis of sex, not on the basis of sexual orientation. Indeed,
sexual orientation does not appear as a qualification for marriage under the
marriage statutes. The State makes no inquiry into the sexual practices or
identities of a couple seeking a license. The State advances two arguments
in support of its position that Vermont's marriage laws do not establish a
sex-based classification. The State first contends that the marriage statutes
merely acknowledge that marriage, by its very nature, cannot be comprised of
two persons of the same sex. Thus, in the State's view, it is the definition
of marriage, not the statutes, that restricts marriage to two people of the
opposite sex. This argument is circular. It is the State that defines civil
marriage under its statute. The issue before us today is whether the State
may continue to deprive same-sex couples of the benefits of marriage. This
question is not resolved by resorting to a historical definition of marriage;
it is that very definition that is being challenged in this case. The State's second argument, also
propounded by the majority, see 744 A.2d at 880 n.13, is that the
marriage statutes do not discriminate on the basis of sex because they treat
similarly situated males the same as similarly situated females. Under this
argument, there can be no sex discrimination here because "if a man
wants to marry a man, he is barred; a woman seeking to marry a woman is
barred in precisely the same way. For this reason, women and men are not
treated differently." C. Sunstein, Homosexuality and the Constitution, 70
Ind. L.J. 1, 19 (1994). But consider the following example. Dr. A and Dr.
B both want to marry Ms. C, an X-ray technician. Dr. A may do so because Dr.
A is a man. Dr. B may not because Dr. B is a woman. Dr. A and Dr. B are
people of opposite sexes who are similarly situated in the sense that they
both want to marry a person of their choice. The statute disqualifies Dr. B
from marriage solely on the basis of her sex and treats her differently from
Dr. A, a man. This is sex discrimination. n10 n10 Under the State's analysis, a
statute that required courts to give custody of male children to fathers and
female children to mothers would not be sex discrimination. Although such a
law would not treat men and women differently, I believe it would
discriminate on the basis of sex. Apparently, the Legislature agrees. By
prohibiting consideration of the sex of the child or parent in custody
decisions, see 15 V.S.A. § 665(c),
the Legislature undoubtedly intended to prohibit sex discrimination, even if
the rules applied equally to men and women. See Harris v. Harris, 162 Vt.
174, 182, 647 A.2d 309, 314 (1994) (stating the family court's custody
decision would have to be reversed if it had been based on preference that
child remain with his father because of his gender). I recognize, of course, that
although the classification here is sex-based on its face, its most direct
impact is on lesbians and gay men, the class of individuals most likely to
seek same-sex marriage. Viewing the discrimination as sex-based, however, is
important. Although the original purpose of the marriage statutes was not to
exclude same-sex couples, for the simple reason that same-sex marriage was
very likely not on the minds of the Legislature when it passed the licensing
statute, the preservation of the sex-based classification deprives lesbians
and gay men of the right to marry the life partner of their choice. If, as I
argue below, the sex-based classification contained in the marriage laws is
unrelated to any valid purpose, but rather is a vestige of sex-role
stereotyping that applies to both men and women, the classification is still
unlawful sex discrimination even if it applies equally to men and women. See MacCallum,
165 Vt. at 459, 686 A.2d at 939 (Constitution does not permit law to give
effect, either directly or indirectly, to private biases; when government
itself makes the classification, it is obliged to afford all persons equal
protection of the law); Loving v. Virginia, 388 U.S. 1, 8-9, 11, 18 L. Ed.
2d 1010, 87 S. Ct. 1817 (1967) (statute prohibiting racial intermarriage
violates Equal Protection Clause although it applies equally to Whites and
Blacks because classification was designed to maintain White Supremacy.) n11 n11 I do not contend, as the
majority suggests, that the real purpose of the exclusion of same-sex
partners from the marriage laws was to maintain certain male and female
stereotypes. See 744 A.2d at 880 n.13, 1999 Vt. LEXIS 406, *38, n.13.
As noted above, I agree that the original purpose was very likely not
intentionally discriminatory toward same-sex couples. The question is whether
the State may maintain a classification today only by giving credence to
generally discredited sex-role stereotyping. I believe our decision in
MacCallum says no. See Sunstein, supra, at 23, 27 (exclusion of same-sex
couples from marriage is, in reality, impermissible sex-role stereotyping,
and therefore, is discrimination on basis of sex); J. Culhane, Uprooting the
Arguments Against Same-Sex Marriage, 20 Cardozo L. Rev. 1119, 1171-75
(1999) (accord). Although Vermont has not had occasion to consider the
question, most, if not all, courts have held that the denial of rights or
benefits on the basis of sex subject the state's action to some level of
heightened scrutiny. n12 This is so because the sex of an individual "frequently
bears no relation to ability to perform or contribute to society." Frontiero
v. Richardson, 411 U.S. 677, 686, 36 L. Ed. 2d 583, 93 S. Ct. 1764 (1973)
(plurality opinion). Moreover, in some cases, such as here, sex-based
classifications "very likely reflect outmoded notions of the relative
capabilities of men and women." City of Cleburne v. Cleburne Living
Ctr., Inc., 473 U.S. 432, 441, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). n12 See, e.g., United States
v. Virginia, 518 U.S. 515, 533, 135 L. Ed. 2d 735, 116 S. Ct. 2264 (1996)
(concluding that sex-based classifications are subject to heightened standard
of review less rigorous than that imposed for race or national origin
classifications); Frontiero, 411 U.S. at 684, 686, 36 L. Ed. 2d 583, 93 S.
Ct. 1764 (plurality opinion) (concluding that sex is suspect
classification under two-part test inquiring whether class is defined by
immutable characteristic and whether there is history of invidious
discrimination against class); Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1,
485 P.2d 529, 540, 95 Cal. Rptr. 329 (Cal. 1971) (applying federal
two-part test and concluding that sex is immutable trait and women have
historically labored under severe legal and social disabilities); Hewitt
v. State Accident Ins. Fund Corp., 294 Ore. 33, 653 P.2d 970, 977 (Or. 1982)
(applying federal two-part test and concluding that sex is immutable personal
characteristic and purposeful unequal treatment of women is well known). I do not believe that it is necessary
to reach the question in this case, however, because in my view, the
justifications asserted by the State do not satisfy even our rational-basis
standard under the Common Benefits Clause, which requires that the
classification be "reasonably related to the promotion of a valid public
purpose." MacCallum, 165 Vt. at 457 n.1, 686 A.2d at 938 n.1
(because statute failed to pass constitutional muster under rational-basis
test, no need to determine whether adopted persons are suspect class). n13 In
MacCallum, we invalidated, under the Common Benefits Clause, a statute
denying an adopted person's right of inheritance from collateral kin, stating
that the statute was grounded on outdated prejudices instead of a valid
public purpose. See id. at 460-62, 686 A.2d at 939-41. Rather than
blindly accept any conceivable justification proffered by the State in that
case, we carefully considered the State's rationales to determine whether the
discriminatory classification rested upon a reasonable consideration of legislative
policy. See id. at 457, 459-61, 696 A.2d at 938, 939-40; see also Romer
v. Evans, 517 U.S. 620, 635-36, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996)
(state constitutional amendment prohibiting all legislative, executive, or
judicial action designed to protect homosexuals from discrimination violated
Equal Protection Clause under rational-basis test because it was
discriminatory and had no proper legislative end); Cleburne, 473 U.S. at
450 (ordinance requiring special use permit for operation of home for
mentally retarded violated Equal Protection Clause under rational basis test
because it rested on irrational prejudice rather than legitimate government
purpose). n13 The question remains why I
feel it is necessary to identify the class of persons being discriminated
against in this case if the majority and I reach the same conclusion. It is
important because I have concerns about the test that the majority devises to
review equal-protection challenges under the Common Benefits Clause. The
majority rejects the notion that the Court should accord some measure of
heightened scrutiny for classifications denying benefits to historically
disadvantaged groups. It argues that the history of the Common Benefits
Clause supports the Court's adoption of a uniform standard that is reflective
of the broad inclusionary principle at its core. Therefore, rather than
accord any particular group heightened scrutiny, it will balance all the
factors in the case and reach a just result. While this notion is
superficially attractive in its attempt to achieve fundamental fairness for
all Vermonters, it is flawed with respect to an equal-protection analysis.
The guarantee of equal protection is about fundamental fairness in a large
sense, but its most important purpose is to secure the rights of historically
disadvantaged groups whose exclusion from full participation in all facets of
society has resulted from hatred and prejudice. I share Justice Dooley's concern
that the new standard enunciated by the majority may not give sufficient
deference to the Legislature's judgment in economic and commercial
legislation. See 744 A.2d at 896, 1999 Vt. LEXIS 406, *90 (Dooley, J.,
concurring). It is the Legislature's prerogative to decide whether, for
example, to give "optometrists" more protection than
"opticians." See Cleburne, 473 U.S. at 471 (Marshall, J.,
concurring in part and dissenting in part). Such classifications ought not to
become a matter of serious constitutional review, even though optometrists
and opticians comprise "a part of the community" and may have vital
economic interests in the manner in which they are regulated. I am certain
the majority would agree with that proposition and argue that its balancing
of all the relevant factors in that kind of a case would not result in
striking down a classification that treated those two groups differently. But
therein lies my concern with the majority's approach. Although we might agree
on the optometrists/opticians classification, a balancing of all relevant
factors in all equal-protection cases puts the rule of law at "excessive
risk." C. Sunstein, Foreward: Leaving Things Undecided, 110 Harv. L.
Rev. 4, 78 (1996). As Professor Sunstein explains: The use of 'tiers' has
two important goals. The first is to ensure that courts are most skeptical in
cases in which it is highly predictable that illegitimate motives are at
work. . . . The second goal of a tiered system is to discipline judicial
discretion while promoting planning and predictability for future cases.
Without tiers, it would be difficult to predict judicial judgments under the
Equal Protection Clause, and judges would make decisions based on ad hoc
assessments of the equities. The Chancellor's foot * is not a promising basis
for antidiscrimination law. Id. The majority argues that
subjective judgment is required to make choices about classes who are
entitled to heightened review and, therefore, that a tiered approach is not
more precise than the balancing-of-factors approach. See, 744 A.2d at 878
n.10, 1999 Vt. LEXIS 406, *34, n.10. But, in choosing the suspect class,
it would be incumbent upon the Court to articulate its rationale, thereby
providing predictive value in future cases of discrimination rather than
depending on the perspicacity of judges to see it. Cleburne, 473 U.S. at 466 (Marshall,
J., concurring in part and dissenting in part). * The reference to the
Chancellor's foot in the Sunstein quote is from John Seldon's (1584-1654)
critique of equity, which is relevant here: Equity is a roguish thing. For
Law we have a measure, know what to trust to; Equity is according to the
conscience of him that is Chancellor, and as that is larger or narrower, so
is Equity. 'Tis all one as if they should make the standard for the measure
we call a "foot" a Chancellor's foot; what an uncertain measure
would this be! One Chancellor has a long foot, another a short foot, a third
an indifferent foot. 'Tis the same thing in the Chancellor's conscience. J. Bartlett, Familiar Quotations,
263 (15th ed. 1980). Before applying the
rational-basis standard to the State's justifications, it is helpful to
examine the history of the marriage laws in Vermont. There is no doubt that,
historically, the marriage laws imposed sex-based roles for the partners to a
marriage -- male provider and female dependent -- that bore no relation to
their inherent abilities to contribute to society. Under the common law,
husband and wife were one person. See R. & E. Builders, Inc. v.
Chandler, 144 Vt. 302, 303-04, 476 A.2d 540, 541 (1984). The legal
existence of a woman was suspended by marriage; she merged with her husband
and held no separate rights to enter into a contract or execute a deed. See
id. She could not sue without her husband's consent or be sued without
joining her husband as a defendant. See id. Moreover, if a woman did not hold
property for her "sole and separate use" prior to marriage, the
husband received a freehold interest in all her property, entitling him to all
the rents and profits from the property. See id. Starting in the late nineteenth
century, Vermont, like other states, began to enact statutes, such as the
Rights of Married Women Act, see 15 V.S.A. § § 61-69, to grant married women property
and contractual rights independent of their husbands. See Medical Ctr.
Hosp. v. Lorrain, 165 Vt. 12, 14, 675 A.2d 1326, 1328 (1996). The
Legislature's intent in enacting the Rights of Married Women Act was to
"reject[] the archaic principle that husband and wife are 'one person,'"
and "to set a married woman free 'from the thraldom of the common
law.'" Richard v. Richard, 131 Vt. 98, 102, 106, 300 A.2d 637, 639,
641 (1973). Thus, we recognized that the legal existence of married women
was no longer merged into that of their husbands, see Lorrain, 165 Vt. at
15, 675 A.2d at 1329, and that "a married woman is a 'person' under
the Constitution of Vermont." Richard, 131 Vt. at 106, 300 A.2d at
641. Today, the partners to a marriage
are equal before the law. See R. & E. Builders, 144 Vt. at 304, 476
A.2d at 541 (modern statutes attempt to accord wives legal rights equal
to husbands). A married woman may now enter contracts, sue and be sued
without joining her husband, purchase and convey property separate from her
husband, own property, and collect rents and profits from it. See Lorrain,
165 Vt. at 15, 675 A.2d at 1329 (women have property and contractual
rights equal to men regardless of their marital status). As the Legislature
enacted statutes to confer rights upon married women, this Court abolished
common-law doctrines arising from the common law theory that husband and wife
were one person and that the wife had no independent legal existence. See,
e.g., Richard, 131 Vt. at 106, 300 A.2d at 641 (abolishing
interspousal immunity, which was based on "archaic principle" that
husband and wife are one person, to allow passenger wife to sue husband for
personal injuries arising from husband's negligence in operating automobile). The question now is whether the
sex-based classification in the marriage law is simply a vestige of the
common-law unequal marriage relationship or whether there is some valid
governmental purpose for the classification today. See MacCallum, 165 Vt.
at 460-62, 686 A.2d at 939-41 (State's rationales proffered to validate
statutory classification cannot rest on outdated presumptions not reasonable
today when vast cultural and social changes have occurred). In support of the
marriage statutes, the State advances public purposes that fall into three
general categories. In the first category, the State
asserts public purposes -- uniting men and women to celebrate the
"complementarity" (sic) of the sexes and providing male and female
role models for children -- based on broad and vague generalizations about
the roles of men and women that reflect outdated sex-role stereotyping. The
State contends that (1) marriage unites the rich physical and psychological
differences between the sexes; (2) sex differences strengthen and stabilize a
marriage; (3) each sex contributes differently to a family unit and to
society; and (4) uniting the different male and female qualities and
contributions in the same institution instructs the young of the value of
such a union. The State relies on social science literature, such as Carol
Gilligan's In a Different Voice: Psychological Theory and Women's Development
(1982), to support its contention that there are sex differences that justify
the State requiring two people to be of opposite sex to marry. The State attempts to analogize
this case to the changes in law brought about by women's participation in the
legal profession starting in the 1970s, arguing that women have brought a
different voice to legal theory and
practice. The State also points to United States v. Virginia, 518 U.S.
515, 533, 135 L. Ed. 2d 735, 116 S. Ct. 2264 (1996) (hereinafter VMI),
arguing that an institution or community made up exclusively of one sex is
different from a community composed of both. The goal of diversity has been
recognized to justify affirmative action programs in public broadcasting and
education. See, e.g., Metro Broadcasting, Inc. v. FCC, 497 U.S. 547,
567-68, 111 L. Ed. 2d 445, 110 S. Ct. 2997 (1990) (holding that state
interest in racial diversity in broadcasting justified affirmative-action
racial classification); Regents of Univ. of Calif. v. Bakke, 438 U.S. 265,
311-19, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978) (opinion of Powell, J.)
(endorsing race classification in university admission as legitimate means of
achieving diversity). Similarly, the recognition that women may contribute
differently from men is a valid argument for women's full participation in
all aspects of public life. The goal of community diversity has no place,
however, as a requirement of marriage. To begin with, carried to its
logical conclusion, the State's rationale could require all marriages to be
between people, not just of the opposite sex, but of different races,
religions, national origins, and so forth, to promote diversity. Moreover,
while it may be true that the female voice or point of view is sometimes
different from the male, such differences are not necessarily found in
comparing any given man and any given woman. The State's implicit assertion
otherwise is sex stereotyping of the most retrograde sort. Nor could the State
show that the undoubted differences between any given man and woman who wish
to marry are more related to their sex than to other characteristics and life
experiences. In short, the "diversity" argument is based on
illogical conclusions from stereotypical imaginings that would be condemned
by the very case cited for its support. See VMI, 518 U.S. at 533
(justifications for sex-based classifications "must not rely on
overbroad generalizations about the different talents, capabilities, or
preferences of males and females."). In the second category, the State
asserts, under several different guises, the public purpose of maintaining
the sex-based classification. First, the State claims an interest in
"preserving the existing marital structure." Second, the State
claims an interest in "instructing the young of the value of uniting
male and female qualities." This is mere tautology. The State's
objective is to preserve the status quo, but that does not address the
question of whether the classification can be justified. Perpetuating the
classification, in and of itself, is not a valid purpose for the
classification. See id. at 545 (rejecting as circular governmental
justification that sex-based classification is essential to governmental
objective of single-sex education). Many of the State's remaining
justifications, which I place into a third category, assume highly
questionable public purposes. But because none of these justifications are
even remotely, much less reasonably, related to the challenged classification,
I accept, for the sake of argument, the premise that each of them concerns a
legitimate state interest. The State contends, for example,
that prohibiting individuals from marrying a person of the same sex promotes the
public purpose of minimizing custody and visitation disputes arising from
surrogacy contracts because the prohibition may deter use of technologically
assisted reproduction by same-sex couples. Further, the State argues that
increased use of technologically assisted reproduction "may lead men who
conceive children by sexual union to perceive themselves as sperm donors,
without any responsibility for their offspring." Both of these reasons
suffer from the same constitutional deficiency. If the state purpose is to
discourage technologically assisted reproduction, I agree with the majority
that the classification is significantly underinclusive. The State does
nothing to discourage technologically assisted reproduction by individuals or
opposite-sex couples. Moreover, opposite-sex couples may obtain marriage
licenses without regard to whether or not they will use technologically
assisted reproduction. n14 The public
purpose provides no rationale for the different treatment. n14 The State does not address the
apparent conflict between the public purposes it asserts and the legislative
policy of this State. Vermont does not prohibit the donation of sperm or the
use of technologically assisted methods of reproduction. Thus, same-sex
partners and single individuals may use technologically assisted
reproduction, all without the benefit of marriage. It is impossible to accept
that the classification in the marriage statutes serves as a reasonable
deterrent to such methods. The State also asserts that it
has an interest in furthering the link between procreation and child rearing
"to ensure that couples who engage in sexual intercourse accept[]
responsibility for the potential children they might create." But the
State cannot explain how the failure of opposite-sex couples to accept
responsibility for the children they create relates at all to the exclusion
of same-sex couples from the benefits of marriage. To the extent that
couples, same-sex or opposite-sex, will fail to take responsibility for the
children they create, the risk is greater where the couples are not married.
Therefore, denying same-sex couples the benefits of marriage on this ground
is not only arbitrary but completely at odds with the stated government
purpose. The State further contends that
prohibiting individuals from marrying same-sex partners will deter marriages
of convenience entered into solely to obtain tax benefits or government
assistance. Two persons of the opposite sex are completely free to enter into
a marriage of convenience, however, without the State examining their
motives. Indeed, the pool of opposite-sex couples who may choose to enter
into such marriages is much greater than the pool of same-sex couples. Once
again, the public purpose provides no rationale for treating individuals who
choose same-sex partners differently from those who choose opposite-sex
partners. Although "[a] statute need
not regulate the whole of a field to pass constitutional muster," Benning
v. State, 161 Vt. 472, 486, 641 A.2d 757, 764 (1994), there still must be
some rational basis for an underinclusive classification. Here, none of the
alleged governmental purposes within the third category of State
justifications provides a rational basis for treating similarly situated
people differently, or for applying the classification in an underinclusive
manner. See Cleburne, 473 U.S. at 446 (State may not impose
classification where relationship to asserted goal is so attenuated as to
render distinction arbitrary or irrational). The State's justifications are
nothing more than post-hoc rationalizations completely unrelated to any
rational reason for excluding same-sex couples from obtaining the benefits of
marriage. Finally, the State claims a valid
public purpose in adopting a classification to align itself with the other
states. The Vermont Constitution is freestanding authority, however, and may
protect rights not protected under the federal constitution or other state
constitutions. Brigham, 166 Vt. at
257, 268, 692 A.2d at 391, 397 (recognizing right to equal education
under Vermont Constitution, while acknowledging that this right is not
recognized under federal constitution and is recognized under only some state
constitutions). This Court does not limit the protections the Vermont
Constitution confers on Vermonters solely to make Vermont law consistent with
that of other states. See id. at 257, 692 A.2d at 391 (decisions in
other states are of limited precedential value because each state's
constitutional evolution is unique). Indeed, as the majority notes, Vermont's
marriage laws are already distinct in several ways from the laws of other
states. In sum, the State treats
similarly situated people -- those who wish to marry -- differently, on the
basis of the sex of the person they wish to marry. The State provides no
legally valid rationale for the different treatment. The justifications
asserted by the State for the classification are tautological, wholly
arbitrary, or based on impermissible assumptions about the roles of men and
women. None of the State's justifications meets the rational-basis test under
the Common Benefits Clause. Finding no legally valid justification for the
sex-based classification, I conclude that the classification is a vestige of
the historical unequal marriage relationship that more recent legislative
enactments and our own jurisprudence have unequivocally rejected. The
protections conferred on Vermonters by the Common Benefits Clause cannot be
restricted by the outmoded conception that marriage requires one man and one
woman, creating one person -- the husband. As this Court recently stated,
"equal protection of the laws cannot be limited by eighteenth-century
standards." See Brigham, 166 Vt. at 267, 692 A.2d at 396. III. This case is undoubtedly one of
the most controversial ever to come before this Court. Newspaper, radio and
television media have disclosed widespread public interest in its outcome, as
well as the full spectrum of opinion as to what that outcome should be and
what its ramifications may be for our society as a whole. One line of opinion
contends that this is an issue that ought to be decided only by the most
broadly democratic of our governmental institutions, the Legislature, and
that the small group of men and women comprising this Court has no business
deciding an issue of such enormous moment. For better or for worse, however,
this is simply not so. This case came before us because citizens of the state
invoked their constitutional right to seek redress through the judicial
process of a perceived deprivation under state law. The Vermont Constitution
does not permit the courts to decline to adjudicate a matter because its
subject is controversial, or because the outcome may be deeply offensive to
the strongly held beliefs of many of our citizens. We do not have, as does
the Supreme Court of the United States, certiorari jurisdiction, which allows
that Court, in its sole discretion, to decline to hear almost any case. To
the contrary, if a case has been brought before us, and if the established
procedures have been followed, as they were here, we must hear and decide it. Moreover, we must decide the case
on legal grounds. However much history, sociology, religious belief, personal
experience or other considerations may inform our individual or collective
deliberations, we must decide this case, and all cases, on the basis of our
understanding of the law, and the law alone. This must be the true and
constant effort of every member of the judiciary. That effort, needless to
say, is not a guarantee of infallibility, nor even an assurance of wisdom. It
is, however, the fulfillment of our pledge of office. |
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