Same-Sex Couples Win Rights In Vermont
Gay Activists Say Ruling Is a Legal Breakthrough

By Hanna Rosin
Washington Post Staff Writer
Tuesday, December 21, 1999; Page A01

The Vermont Supreme Court yesterday ruled that gay and lesbian couples  are entitled to the same protections and benefits given to heterosexual married couples, in the first real breakthrough for advocates of gay  marriage.

The justices stopped just short of legalizing gay marriage, leaving it up to  the Vermont legislature to decide between granting marriage licenses to  gay and lesbian couples or setting up a broad domestic partnership system.  But even if it opts against gay marriage, the legislature will still have to  create the most extensive network of benefits in the country, covering  everything from inheritance to joint taxes to hospital visitation.

Gay activists considered the long-awaited decision their most important  legal victory to date. While they've won scattered decisions concerning  specific partnership benefits, never before has a court affirmed, in  unmistakable and almost philosophical terms, that gay families are an essential part of a stable, mainstream society.

Chief Justice Jeffrey Amestoy, writing for the majority, described the  extension of benefits to gay and lesbian couples committed to an "intimate  and lasting human relationship" as "simply, when all is said and done, a  recognition of our common humanity."

"The more I read this sentence, the more it makes my hairs stand up," said  Beatrice Dohrn, legal director for the Lambda Legal Defense Fund.  "We've never gotten this kind of official recognition. They're saying it's a  social good that we be who we are, that we be in strong and loving  families. It's so simple and yet it's never happened before. This is a huge  thing for gay people."

The plaintiffs in the Vermont case documented a long list of benefits granted to married couples but denied to gay ones, even under Vermont's relatively gay-friendly laws. The 300 state and 1,049 federal laws cover such matters as the ability to make medical decisions about a spouse, automatic inheritance in the absence of a will, health insurance coverage, the right to pay taxes jointly, and Social Security benefits.

The ruling came as a surprise after a recent disappointment for gay rights activists. In a case they once considered their best hope for legalizing gay marriage, the Hawaii Supreme Court earlier this month ducked the issue, deferring to a state constitutional amendment that blocked same-sex marriages. In 1993, the Hawaiian court had made a decision similar to the Vermont one, setting off a wave of legislation in which at least 30 states banned gay marriage and Congress passed the Defense of Marriage Act, allowing states not to recognize same-sex marriages performed elsewhere.

The far-reaching implications of yesterday's decision surprised and unsettled conservatives, who had not anticipated that gay marriage might come within reach. A host of traditional family values groups condemned the decision, calling it "immoral" and "dangerous."

"This is a deeply disturbing decision," said Gary Bauer, a Republican presidential candidate. "It begins in a fundamental way to redefine marriage. For 6,000 years Western civilization has defined marriage as between a man and a woman, and once you abandon that, all things are possible."

Already conservative groups have begun to plan damage control, to limit the impact of the decision as much as possible. The ruling can't be appealed to the U.S. Supreme Court, because the Vermont Supreme Court based its decision on the state constitution. And passing a
constitutional amendment is a long and arduous process in Vermont.

Instead, opponents of gay marriage plan to lobby the Vermont legislature to opt for the domestic partnership option because "it doesn't sound quite so bad," said Jay Sekulow of the conservative American Center for Law and Justice, who filed a brief in the case. "Politically, it takes the momentum away from gay marriage."

The Vermont case dates back to 1997, when two lesbian couples--Lois Farnham and Holly Puterbaugh, and Nina Beck and Stacy Jolles--and one gay couple, Stan Baker and Peter Harrigan, filed for marriage licenses at their local town clerks in northwest Vermont. All were denied and they subsequently sued.

The Chittenden County Superior Court rejected their claim, arguing that the state could exclude same-sex couples from the benefits of marriage because the government's main interest in supporting marriage was "furthering the link between procreation and child rearing."

Yesterday, the Vermont Supreme Court dissected that claim, depicting it as an outdated and narrow view of marriage. Many heterosexual couples never intend to have children, they wrote, yet the state would not deny them a marriage license. Also, thanks to reproductive technology, many same-sex couples are already raising children, making it in the state's interest to afford them the right to a stable family life.

While explicitly sidestepping the "religious and moral debate over intimate same-sex relationships," the court concluded the issue on purely constitutional, equal-protection grounds.

"The laudable governmental goal of promoting a commitment between married couples . . . 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," the majority decision concludes.

One judge, Denise Johnson, dissented, but only because she thought the majority did not go far enough. By not voting to grant marriage licenses to same-sex couples outright, the majority "abdicat[ed] this Court's constitutional duty to redress violations of constitutional rights," Johnson wrote.

The plaintiffs were, of course, elated.

"We'll be celebrating our 27th anniversary together in October," said Holly Puterbaugh. "We look forward to the time when we can make it official."

With Monday's decision, the debate moves to the legislative arena. The court ordered Vermont lawmakers to choose their solution "within a reasonable period of time" and retained jurisdiction over the case until they do.

Vermont Gov. Howard Dean has already hinted which way he will push, mentioning yesterday that several legislators were crafting domestic partnership bills. But gay marriage advocates point out that granting the whole array of marriage benefits one by one would require the overhauling of numerous and disparate sections of state law.

Should the legislature ultimately approve gay marriage, the national fight will begin in earnest. Gay couples who flock to Vermont to get married will then go back to their own states, which most likely will not recognize the marriages. Then, opponents of gay marriage will have their Supreme Court case.


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