* Climenko-Thayer Lecturer on Law, Harvard Law School; Adjunct Professor of Law, Boston College Law School. B.A., Connecticut College; J.D., Boston College Law School; LL.M., Harvard Law School.
** Professor of Law, Boston College Law School; A.B., University of Pennsylvania; LL.B., Harvard Law School; Ph.D., University of Pennsylvania. This article benefited from discussions with, and the thoughtful comments of, Dianne M. Baron, David Englander, Mark Michelson, Shaun Spencer, and Joan Wasser.
1 744 A.2d 864 (Vt. 1999).
2 See id. at 867.
3 See, e.g., William N. Eskridge, Jr., No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review, 75 N.Y.U. L. Rev. 1327, 1404–05 (2000) (endorsing Baker’s progressive stance); Michael Mello, For Today I’m Gay: The Unfinished Battle for Same-Sex Marriage in Vermont, 25 Vt. L. Rev. 149, 149 (2000) (discussing the context of the Baker decision and the consequences of the decision in the law of sexual orientation).
4 See, e.g., Daniel Gordon, Brennan’s State Constitutional Era Twenty-Five Years Later—The History, the Present, and the State Constitutional Wall, 72 Temp. L. Rev. 1031, 1056–58 (2000) (discussing Baker); Robert F. Williams, Old Constitutions and New Issues: National Lessons from Vermont’s State Constitutional Same-Sex Marriage Case, 42 B.C. L. Rev. 73 passim (2002) (discussing Baker v. State as a model of state constitutional jurisprudence).
5 John Kincaid, Foreword: The New Federalism Context of the New Judicial Federalism, 26 Rutgers L.J. 913, 913 n.1 (1995) (defining the “New Judicial Federalism”).
6 Williams, supra note 4, at 122.
7 Id. at 75 (quotation omitted).
8 478 U.S. 186, 191 (1986) (upholding conviction for homosexual sodomy against substantive due process challenge); id. at 199–200 (Blackmun, J., dissenting) (arguing that abridgment of the “right to be let alone” requires state to demonstrate a compelling interest).
9 See Robert F. Williams, In the Glare of the Supreme Court: Continuing Methodology and Legitimacy Problems in Independent State Constitutional Rights Adjudication, 72 Notre Dame L. Rev. 1015, 1017–18 (1997) (noting that most commentators “have stopped counting” the number of cases in which state courts have interpreted their states’ constitutions differently than the federal constitution).
10 See G. Alan Tarr, Understanding State Constitutions 208 (1998) (observing that too many state courts “frame their analysis in federal doctrinal categories, making state constitutional law merely a poor relation, stuck with ill-fitting hand-me-downs”).
11 See Thomas Morawetz, Deviation and Autonomy: The Jurisprudence of Interpretation in State Constitutional Law, 26 Conn. L. Rev. 635, 657 (1994) (observing that, “from the standpoint of interpretive responsibility,” the nature of the judicial task commits state courts to offering “a compelling account” of the state constitution, “an account that may or may not dovetail with the federal understanding”).
12 761 A.2d 448, 450 (N.H. 2000).
13 See State v. Canelo, 653 A.2d 1097, 1103 (N.H. 1995).
14 See Lopez, 761 A.2d at 451.
15 See id. (citing Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363–64 (1998)).
16 See, e.g., Paul M. Bator, The State Courts and Federal Constitutional Litigation, 22 Wm. & Mary L. Rev. 605, 606 n.1 (1981) (questioning the assumption “that state constitutional law is simply ‘available’ to be manipulated to negate Supreme Court decisions which are deemed unsatisfactory” by state court judges); Earl M. Maltz, The Dark Side of State Court Activism, 63 Tex. L. Rev. 995, 1015 (1985) (criticizing state constitutional analysis as based simply upon “disagreement with the Supreme Court’s conclusion”).
17 As Judith Kaye, of the New York Court of Appeals, has observed, when it is apparent that the U.S. Supreme Court has, in a particular area, “diluted constitutional principles,” a state court does not act improperly in “discharging [a] responsibility to support the State Constitution” by examining whether it is wise to “follow along as a matter of state law.” People v. Scott & People v. Keta, 593 N.E.2d 1328, 1347 (N.Y. 1992) (Kaye, J., concurring).
18 The “great ordinances do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other.” Springer v. Philippine Islands, 277 U.S. 189, 209 (1928) (Holmes, J., concurring).
19 See infra notes 23–87 and accompanying text.
20 See infra notes 88–147 and accompanying text.
21 See infra notes 148–161 and accompanying text.
22 See infra notes 162–179 and accompanying text.
23 Baker v. State, 744 A.2d 864, 867 (Vt. 1999).
24 See id.
25 See id. at 868.
26 Id. (quotation omitted).
27 In their statutory claim, the plaintiffs asserted that the trial court erroneously construed the marriage statutes to render the plaintiffs ineligible for marriage licenses. See id. at 868. Vermont’s marriage statutes define the requirements and eligibility for entering into a marriage, see Vt. Stat. Ann. tit. 15, c. 1 (2001), and the forms and procedures for obtaining a license and “solemnizing” a marriage. See Vt. Stat. Ann. tit. 18, � 5131 (1999). Looking to the “plain and ordinary meaning of the statutory language, the court concluded that “there is no doubt” that the term “marriage” refers to “the union of one man and one woman as husband and wife.” Baker, 744 A.2d at 868. The plaintiffs also argued that the law should be construed to include same-sex couples, so as to further the underlying purpose of marriage: “to protect and encourage the union of committed couples.” Id. at 869. The court rejected this argument as well, reasoning that limiting marriage to opposite-sex couples did not violate the underlying purpose of the statutes. See id. “Rather,” the court concluded, “the evidence demonstrates a clear legislative assumption that marriage under the [Vermont] statutory scheme consists of a union between a man and a woman.” Id.
28 Id. at 869–70. The plaintiffs also raised additional arguments under the United States and Vermont Constitutions; the court did not reach those issues in light of its resolution of the Common Benefits claim. See id. at 870 n.2.
29 See id. at 870.
30 Id. (quotation omitted).
31 See Baker, 744 A.2d at 870.
32 See id. at 870–71 & n.3.
33 Id. at 871.
34 448 A.2d 791, 792 (Vt. 1982).
35 Baker, 744 A.2d at 872 (citing Ludlow, 448 A.2d at 795).
36 Id. at 873. The approach articulated in the Ludlow Supermarkets opinion, the Baker majority concluded, reflected “the language, history and values at the core of the Common Benefits Clause.” Id.
37 Id. at 874. As the court stated in State v. Kirchoff: “[O]ur duty is to discover . . . the core value” at stake. 587 A.2d 988, 992 (Vt. 1991).
38 Vt. Const. of 1777, art. VI, ch. 1. The modern version of the Common Benefits Clause substitutes the gender-neutral terms “person” and “persons” for “man” and “men.” See Baker, 744 A.2d at 874 n.6.
39 Id. at 874.
40 Id.
41 Id. at 875.
42See id. at 875–76. The majority relied upon the scholarship of Bernard Bailyn and Gordon Wood. See Bernard Bailyn, The Ideological Origins of the American Revolution 307 (1967); Gordon Wood, The Creation of the American Republic, 1776–1787, at 75–82 (1969).
43 Baker, 744 A.2d at 876.
44 Id.
45 Id. at 878.
46 Id.
47 Id.
48 Baker, 744 A.2d at 876.
49 Id. at 878–79. Among the factors to be considered in this analysis are “(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.” Id. at 879.
50 Id. (citing Washington v. Glucksberg, 521 U.S. 702, 767 (1997) (Souter, J., concurring)) (internal quotations and citations omitted).
51 Id. at 879 (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 849 (1992)) (footnote omitted).
52 See id. at 880.
53 See Baker, 744 A.2d at 881.
54 See id.
55 Id.
56 Id. at 882.
57 See Vt. Stat. Ann. tit. 15A, � 1–102(b) (1995) (permitting partner of biological parent to adopt child if in child’s best interest).
58 See id. at � 1–112 (creating family court jurisdiction over parental rights and responsibilities, parent-child contact, and child support for unmarried persons who have adopted minor children and choose to end their domestic relationship).
59 Baker, 744 A.2d at 882, 883. In support of looking to these factors, the majority cited to Glucksberg, a federal substantive due process case concerning a constitutional right to physician-assisted suicide.
60 Baker, 744 A.2d at 883 (quoting Loving v. Virginia, 388 U.S. 1, 12 (1967)).
61 See Baker, 744 A.2d at 883. The majority noted that, 137 years prior to the U.S. Supreme Court’s decision in Loving, the Supreme Court of Vermont had “characterized the reciprocal rights and responsibilities flowing from the marriage laws as the ‘natural rights of human nature.’” Baker, 744 A.2d at 883 (quoting Overseers of the Poor of Newbury v. Overseers of the Poor of Brunswick, 2 Vt. 151, 159 (1829)).
62 Baker, 744 A.2d at 883. Among the benefits and protections listed by the majority: the right to receive a portion of the estate of a spouse who dies intestate and protection against disinheritance, see Vt. Stat. Ann. tit. 14, �� 401–404, 551 (1985); preference in appointment as the personal representative of a spouse who dies intestate, see Vt. Stat. Ann. tit. 14, � 903 (1953); the right to bring a wrongful death lawsuit in relation to a spouse, see Vt. Stat. Ann. tit 14, � 1492 (1995); and the right to bring an action for loss of consortium, see Vt. Stat. Ann. tit. 12, � 5431 (1977).
63 Baker, 744 A.2d at 884.
64 See id. The majority also rejected the state’s other purported justifications for the exclusion of same-sex couples from the benefits and protections of marriage, including the contention that opposite-sex partners offer some advantage in childrearing; the existence of laws that removed legal barriers to the adoption of children by same-sex couples, and laws that provided new and additional legal protections for same-sex parents whose relationships dissolve undermined this justification for the marriage exclusion. See id. at 884–85. The majority rejected the argument that the exclusion served a substantial interest in maintaining uniformity with other jurisdictions, a speculative proposition refuted by legislative choices regarding legal protections for same-sex couples. See id. at 885. And the majority rejected the suggestion 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,” because state action historically motivated by animus could not justify continued unequal treatment. Id.
65 Id. at 886.
66 Id.
67 See id. The majority noted, but did not expressly endorse, such alternative arrangements as “domestic partnerships” and “registered partnerships.” Id.
68 Baker, 744 A.2d. at 889 (Dooley, J., concurring).
69 Id. at 890 (Dooley, J., concurring).
70 Id. (Dooley, J., concurring).
71 478 U.S. 186(1986).
72 See id. at 191.
73 See Baker, 744 A.2d at 891 (Dooley, J., concurring). Indeed, in 1992, the state prohibited discrimination based upon sexual orientation. See id. (Dooley, J., concurring).
74 See Oregon Const. art. I, � 20 (providing 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”).
75 See Hewitt v. State Accident Ins. Fund Corp., 653 P.2d 970, 976 (Or. 1982) (adopting federal equal protection analysis).
76 Baker, 744 A.2d at 892 (Dooley, J., concurring).
77 971 P.2d 435, 447 (Or. Ct. App. 1998).
78 Baker, 744 A.2d at 893 (Dooley, J., concurring).
79 See id. at 893–95 (Dooley, J., concurring).
80 Id. at 896 (Dooley, J., concurring).
81 Id. (Dooley, J., concurring) (quotation omitted).
82 Id. at 905 (Johnson, J., concurring in part and dissenting in part).
83 Baker, 744 A.2d at 905 (Johnson, J., concurring in part and dissenting in part).
84 See id. at 907–11 (Johnson, J., concurring in part and dissenting in part) (reviewing and rejecting the state’s proffered justifications for denying the benefits and protections of marriage to same-sex couples). Notably, Justice Johnson also suggested in that part of her opinion addressing a remedy that the marriage laws’ exclusion could not survive rational basis scrutiny because the state could not establish a connection between the exclusion and the purpose of marriage licensing, which itself raised no legitimate health or safety concern related to same-sex couples. See id. at 899 (Johnson, J., concurring in part and dissenting in part).
85 Baker, 744 A.2d at 912 (Johnson, J., concurring in part and dissenting in part).
86 Id. at 899–900 (Johnson, J., concurring in part and dissenting in part).
87 See id. at 901 (Johnson, J., concurring in part and dissenting in part).
88 See Baker, 744 A.2d at 878–79 (Vt. 1999) (in determining whether exclusion of individuals from benefits and protections of the law is reasonable and just, factors to be considered include “the significance of the benefits and protections of the challenged law”).
89 See id. at 878.
90 Id. at 879 (quotation omitted).
91 473 U.S. 432 (1985).
92 See id. at 450.
93 Id. at 460 (Marshall, J., concurring in part and dissenting in part) (quotation omitted).
94 See id. at 466 (Marshall, J., concurring in part and dissenting in part). Justice John Paul Stevens endorsed a similar approach. See id. at 451 (Stevens, J., concurring) (arguing that federal equal protection cases “reflect a continuum of judgmental responses to differing classifications”).
95 See Baker, 744 A.2d at 878 n.10 (noting only that the “overwhelming majority” of federal decisions have rejected the characterization of gays and lesbians as a suspect class).
96 478 U.S. 186 (1986).
97 See id. at 890, 892 (Dooley, J., concurring).
98 See Tanner v. Oregon Health Scis. Univ., 971 P.2d 435, 447 (Or. Ct. App. 1998) (discussing characteristics of a suspect class for equal protection purposes).
99 See Jerome B. Falk, Jr., Foreword: The State Constitution: A More Than “Adequate” Nonfederal Ground, 61 Cal. L. Rev. 273, 283 (1973) (observing that, “[f]or a state court interpreting a state constitution, opinions of the United States Supreme Court are like opinions of sister state courts”); Lawrence Friedman, The Constitutional Value of Dialogue and the New Judicial Federalism, 28 Hastings Const. L.Q. 93, 135–36 (2000) (arguing that the U.S. Supreme Court holds no monopoly on constitutional interpretation and “there is nothing about [its] institutional position that immunizes it from the hazards of interpretive difficulties”).
100 Helen Hershkoff has suggested that skepticism about importing federal rationality review into state constitutional law may well be appropriate, as the concerns that animate the federal test, such as “doubts concerning democratic legitimacy, federalism, and separation of powers” may not obtain in the state constitutional context. Helen Hershkoff, Positive Rights and State Constitutions: The Limits of Federal Rationality Review, 112 Harv. L. Rev. 1131, 1137 (1999).
101 Baker, 744 A.2d at 899 (Johnson, J., concurring in part and dissenting in part).
102 See, e.g., United States v. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980) (upholding law regarding dual retirement benefits on basis of justifications Congress could have found to exist).
103 See Baker, 744 A.2d at 899 (Johnson, J., concurring in part and dissenting in part) (citing Commonwealth v. Bonadio, 415 A.2d 47, 50 (Pa. 1980) (stating that, in respect to the regulation of morals, the police power should not be employed to “enforce a majority morality on persons whose conduct does not harm others”).
104 See Robert F. Williams, In the Supreme Court’s Shadow: Legitimacy of State Rejection of Supreme Court Reasoning and Result, 35 S.C. L. Rev. 353, 359–61 (1984) (discussing why federal precedent need only be regarded as persuasive authority); see also Friedman, supra note 99, at 134–36 (same).
105 Baker, 744 A.2d at 874.
106 See id. at 876 (discussing historical reports indicating that Article 7’s framers may have been more concerned with controlling elites than with a Fourteenth Amendment-type concern for protecting minorities from exclusionary lawmaking).
107 Id. at 878 (emphasis added).
108 Robert Williams has suggested that the majority’s historical analysis may well have been erroneous. See Williams, supra note 4, at 84-85 (criticizing the majority’s reliance on historical “inclusionary principles”). Notably, even assuming the majority’s historical understanding of Article 7 was correct, the argument that Article 7’s purpose should be characterized at a higher level of abstraction could still be valid; as Carol Steiker has noted in regard to the federal constitution, “[a]t some point, all but the most absolutist originalists formulate notions of the Framers’ intent at some higher level of abstraction [than the text in its historical context], a move that necessarily renders less significant even highly persuasive historical claims about more specific intentions.” Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 824 (1994).
109 See Baker, 744 A.2d at 882.
110 See id. at 876.
111 Id. at 879.
112 See id.
113 198 U.S. 45 (1905).
114 Justice Dooley, for example, cited to Lochner in accusing the majority of “adopt[ing] an activist stance in reviewing economic and social welfare legislation.” Baker, 744 A.2d at 896 (Dooley, J., concurring). Notably, the origins of the substantive due process that Dooley so feared, as epitomized by Lochner, may be traced to state courts: “Long before the adoption of the Fourteenth Amendment, state courts had begun to develop a body of substantive due process law, drawing on state constitutional due process or ‘law of the land’ provisions.” A.E. Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va. L. Rev. 873, 881-82 (1976).
115 Baker, 744 A.2d at 872 (quotation omitted).
116 See id. at 880. Here again, the majority adhered to its inclusionary principle, rather than to the narrower historical understanding of the origins of the Common Benefits Clause, which would have required an inquiry into whether a minority of citizens had received special benefits under the marriage laws. See supra notes 42–44 and accompanying text (discussing narrow interpretation of history of Common Benefits Clause).
117 Baker, 744 A.2d at 881 (quotation omitted).
118 See id. at 887 (noting the lack of evidence that “the exclusion of same-sex couples from the definition of marriage was intended to discriminate against women or lesbians and gay men”).
119 See id. at 868–69 (relying upon dictionary definitions of such terms as “marriage” in construing the Vermont marriage laws).
120 See id. at 869.
121 405 A.2d 368, 375 (N.J. 1979).
122 Id. at 377 (Mountain, J., dissenting).
123 But see Gil Kujovich, An Essay on the Passive Virtues of Baker v. State, 25 Vt. L. Rev. 93, 102–03 (2000) (arguing that court did not resolve Baker on statutory grounds because in the future “the political environment would [have been] even less receptive to a constitutional decision in favor of the plaintiffs”).
124 Baker, 744 A.2d at 886.
125 See id. This approach recalls that taken in the school funding context, in which certain state courts have left to the legislature the task of creating a constitutional solution to the problem identified by the court. See, e.g., Claremont Sch. Dist. v. Governor, 635 A.2d 1375, 1381 (N.H. 1993) (concluding that state constitutional duty to provide adequate education exists, and leaving it to the legislature and the governor, in the first instance, to “define the parameters of the education mandated by the constitution”); McDuffy v. Sec’y of Executive Office of Educ., 615 N.E.2d 516, 554-56 (Mass. 1993) (articulating standard of constitutionally required education, but referring to political branches the task of revising state finance mechanisms to conform to state constitutional requirements).
126 Baker, 744 A.2d at 887.
127 Id. at 889. “The extension of the Common Benefits Clause,” the majority concluded, “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.” Id.
128 Id. at 895 n.3 (Dooley, J., concurring).
129 See id. at 890 (Dooley, J., concurring).
130 See id. at 893 (Dooley, J., concurring).
131 See Choquette v. Perrault, 569 A.2d 455, 459 (Vt. 1999) (analysis requires court to apply more searching scrutiny when statutory scheme affects fundamental constitutional rights or involves suspect classifications); L’Esperance v. Charlotte, 704 A.2d 760, 762 (Vt. 1997) (same); MacCallum v. Seymour’s Adm’r, 686 A.2d 935, 939 (Vt. 1996) (same); see also Lorrain v. Ryan, 628 A.2d 543, 550 (Vt. 1993) (declaring that, when no fundamental right or suspect class is involved, the Common Benefits Clause analysis is the same as the equal protection analysis under the Fourteenth Amendment).
132 See Baker, 744 A.2d at 890 (Dooley, J., concurring).
133 See id. at 896 (“The strength of the [hierarchical] approach is that it disciplines judicial discretion and promotes predictability.”).
134 See City of Cleburne, 473 U.S. at 466 (Marshall, J., concurring in part and dissenting in part) (discussing the obligation of a court to explain its choice of classifications).
135 304 U.S. 144 (1938).
136 See id. at 152–53 n.4.
137 See Cass Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 78 (1996) (asserting that hierarchical approach promotes “planning and predictability for future cases” because “[w]ithout tiers, it would be difficult to predict judicial judgments”).
138 478 U.S. 186.
139 See Baker, 744 A.2d at 893 (Dooley, J., concurring) and supra notes 74–78 and accompanying text.
140 See Baker, 744 A.2d at 893 (Dooley, J., concurring) (citing with approval conclusion in Tanner v. Ore. Health Scis. Univ., 971 P.2d 435 (Or. Ct. App. 1998), that gays and lesbians have been and continue to be “the subject of adverse social and political stereotyping and prejudice”).
141 See, e.g., id. at 905 (Johnson, J., concurring in part and dissenting in part).
142 See id. at 898, 905 (Johnson, J., concurring in part and dissenting in part).
143 Sunstein, supra note 137, at 101.
144 See Baker, 744 A.2d at 886–87 (discussing the “number of potentially constitutional statutory schemes” available to afford same-sex couples the same benefits and protections Vermont law affords opposite-sex couples).
145 See Sunstein, supra note 137, at 19 (arguing that judicial self-restraint “grants a certain latitude to other branches of government by allowing the democratic process room to adapt to future developments, to produce mutually advantageous compromises, and to add new information and perspectives to legal problems”).
146 See supra note 125 and accompanying text (discussing school funding cases).
147 On the viability of Johnson’s position, consider Baehr v. Lewin, 852 P.2d 44, 68 (Haw. 1993), in which the Hawaii Supreme Court determined that the state constitution prohibited the exclusion of same-sex couples from state-sanctioned marriage. Following the decision, a state constitutional amendment passed which granted the state legislature the authority “to reserve marriage to opposite-sex couples.” Haw. Const. art I., � 23 (Michie 1997). Had the court followed Johnson’s lead and declared marriage licenses available both to opposite- and same-sex couples, similar efforts to amend the Vermont Constitution would have been launched and perhaps succeeded. Even before the court decided Baker, more than a third of the Vermont House of Representatives voiced support to amend the marriage statutes to expressly exclude same-sex marriage. See 744 A.2d at 898 n.1 (Johnson, J., concurring in part and dissenting in part). This effort easily could have become a movement to amend the Vermont Constitution. On the procedural requirements for amending the Vermont Constitution, see Kujovich, supra note 123, at 111 n.83.
148 John Hart Ely, Democracy and Distrust 106 (1980).
149 In respect to Baker, for example, Lino Graglia has argued that the court’s decision represents “conventional rigamarole meant to obfuscate the fact that the court [was] effectively writing into law a policy decision the legislature did not make and would not make.” Lino Graglia, Equality and Domestic Partnership 6 (June 5, 2001) (unpublished manuscript, on file with authors).
150 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 200 (1962).
151 In this way, the majority implicitly subscribed to the view that rights and remedies each “occupy distinct space,” with judges having “primary jurisdiction over rights,” and legislatures having “corresponding jurisdiction over remedies.” Michael Heise, Preliminary Thoughts on the Virtues of Passive Dialogue, 34 Akron L. Rev. 73, 97 (2000); see also Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 870–72 (1999) (discussing rights-remedies distinction in terms of judicial and legislative roles).
152 Baker, 744 A.2d at 897 (Dooley, J., concurring).
153 The court will require such a demonstration in respect to laws that discriminate against individuals based upon characteristics like race, alienage and nationality. See generally Graham v. Richardson, 403 U.S. 365 (1971) (alienage); Loving v. Virginia, 388 U.S. 1 (1967) (race); Oyama v. California, 332 U.S. 633 (1948) (nationality).
154 See Baker, 744 A.2d at 878 n.10 (maintaining “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”).
155 Id. at 879 (internal quotations omitted).
156 As the Vermont court itself observed, “virtually all regulatory statutes have disparate effects on various sectors of the public.” Choquette v. Perrault, 569 A.2d 455, 460 (Vt. 1999).
157 See Baker, 744 A.2d. at 897 (Dooley, J., concurring).
158 See supra notes 132–137 and accompanying text (discussing strengths of hierarchical approach to equal protection analysis).
159 See Baker, 744 A.2d at 872 n.5.
160 See, e.g., Romer v. Evans, 517 U.S. 620, 635–36 (1996) (concluding that Colorado statute banning laws forbidding sexual-orientation discrimination was not rationally related to legitimate government purpose).
161 Sunstein, supra note 137, at 77.
162 “Constitutionalism” may be regarded, after all, “not [as] a single set of truths, but an ongoing debate about the meaning of the rule of law in a democratic political order.” Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 Harv. L. Rev. 1147, 1147-48 (1993).
163 Allen Dillard Boyer, “Understanding, Authority, and Will”: Sir Edward Coke and the Elizabethan Origins of Judicial Review, 39 B.C. L. Rev. 43, 43 (1997).
164 Sir Edward Coke, Commentary Upon Littleton 97b (Charles Butler ed., 18th ed., Legal Classics Library 1985) (1628).
165 See, e.g., 744 A.2d at 887–88 (discussing Justice Johnson’s proposed remedy for the Common Benefits Clause violation).
166 See, e.g., id. at 872 (discussing State v. Ludlow Supermarkets, Inc., 448 A.2d 791 (Vt. 1982)).
167 See Baker, 744 A.2d at 892 (Dooley, J., concurring) (discussing Hewitt v. State Accident Ins. Fund Corp., 653 P.2d 970 (Or. 1982)).
168 See Baker, 744 A.2d at 879 (relying upon federal substantive due process doctrine).
169 See Anne-Marie Slaughter, Judicial Globalization, 40 Va. J. Int’l L. 1103, 1116–19 (2000).
170 Id. at 1116.
171 See Ferreira v. Levin, 1996 (1) SALR 984, 1022–23, para. 66(CC) (S. Afr.) (Opinion of Ackermann, J.); see also Lawrence Friedman, Turning to the Courts: Human Rights Before the Bench, 13 Harv. Hum. Rts. J. 315, 317–19 (2000) (book review) (discussing judicial globalization of human rights principles).
172 See, e.g., State v. Jewett, 500 A.2d 233, 239 (Vt. 1985) (exhorting advocates to raise and adequately brief state constitutional issues before the court).
173 An exception is criminal procedure, an area in which advocates before state courts have diligently raised, and state courts have responded to, arguments under state constitutions. By way of illustration, consider jurisprudence in this area under the Massachusetts Declaration of Rights. See Herbert P. Wilkins, The State Constitution Matters, Boston B.J., November–December 2000, at 4, 15 (discussing development of search and seizure jurisprudence by the Massachusetts Supreme Judicial Court under Massachusetts Declaration of Rights); see also Charles H. Baron, The Supreme Judicial Court in Its Fourth Century: Meeting the Challenge of the “New Constitutional Revolution,” 77 Mass. L. Rev. 35, 40–41 (1992) (same).
174 See Robert F. Williams, State Constitutional Law: Cases and Materials xiii (3d ed. 1999) (observing that “the study of American constitutional law has been dominated by a virtually exclusive focus on the federal Constitution and its judicial interpretation”); Charles G. Douglas, State Judicial Activism—The New Role for State Bills of Rights, 12 Suffolk U. L. Rev. 1123, 1147 (1978) (noting that law clerks working for state judges who are familiar only with federal cases “bring[] a federal bias” with them).
175 While the U.S. Supreme Court has disdained the use of international law in interpreting the federal constitution, see Slaughter, supra note 169, at 1118, state courts have invoked international legal principles when interpreting their states’ constitutions. See Scott T. Johnson, The Influence of International Human Rights Law on State Courts and State Constitutions, 90 Am. Soc’y Int’l L. Proc. 259 (1996).
176 Certainly, the need to add a global perspective to the traditional law school curriculum finds support in the increasing globalization of law and lawyering in their many forms. See Slaughter, supra note 169, passim.
177 See Philip G. Schrag & Michael Meltsner, Reflections on Clinical Legal Education 5 (1998).
178 See id. at 6. Within fifteen years, ninety-eight percent of ABA-approved law schools would offer students a clinical experience of some kind. See id. at 7. In the years since its introduction, clinical legal education has helped numerous young lawyers to develop advocacy and counseling skills and to gain a better understanding of “how social institutions really work, . . . with greatly heightened awareness of ethical issues and how to address them.” Id. at 9.
179 The Ford grants started “a clinical bandwagon,” which led other schools to create clinical programs with their own funds or with support from governments or foundations other than CLEPR. Id. at 6.