STATE OF VERMONT
	HOUSE OF REPRESENTATIVES STATE HOUSE TELEPHONE: (802) 828-2231	MAILING ADDRESS: 115 STATE STREET MONTPELIER, VT 05633-5301

Summary: Work of the House Judiciary Committee
for the week of February 1 - 4, 2000.

This week, the Committee focused on the second public hearing regarding the Legislature's response to Baker v. State, the Hawaii experience with same-sex marriage/domestic partnerships, the response from Vermont's clergy, domestic partnership laws in other countries, the U.S. Supreme Court's decision in Loving v. Virginia, and testimony from the Human Rights Commission, the Governor's Commission on Women and the attorneys for the plaintiffs in the Baker case.

Second Public Hearing

The second public hearing gave the House and Senate Judiciary Committees an opportunity to hear from some 110 Vermont citizens, who articulated their concerns and recommendations in an intense but respectful hearing held in the House chamber. The hearing saw perhaps the largest crowd ever to assemble in the State House. The testimony was designed to hear equally from those who favor and those who oppose extending civil rights to same-gender committed couples.

Michele Childs, Legislative Council

Counselor Childs reviewed the history of the same-sex marriage/domestic partnership debate in Hawaii. The following summarizes her review.

In 1991, three same-sex couples applied for marriage licenses and were denied.

The department of health considered the couples incapable of forming a valid marriage contract under the law because the Hawaii statute defining a marriage contract refers to a man and a woman. The couples sued the state, claiming that the denial of the licenses violated their right to privacy, their right to equal protection and their right to due process, as guaranteed by the Hawaii Constitution. The trial court dismissed the case on the pleadings. The couples appealed. In Baehr v. Lewin, 852 P.2d 44 (1993), the Hawaii Supreme Court reversed the lower court ruling of dismissal, and remanded the case for trial on the claim of equal protection under the state constitution.

The Hawaii Supreme Court rejected the plaintiffs' argument that the denial of marriage licenses violated their right to privacy under the state constitution. However, the Court did find validity in the plaintiffs' argument on equal protection. The Hawaii Constitution's Equal Protection Clause specifically states that "[n]o persons shall...be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex, or ancestry." The Court found that the marriage laws discriminated on the basis of "sex", not "sexual orientation," and thus were subject to strict judicial scrutiny because "sex" is a suspect class.

Based on the finding that the plaintiffs did have a valid equal protection claim, the Court vacated the lower court ruling and remanded it back to the circuit court. "[O]n remand, in accordance with `strict scrutiny' standard, the burden will rest on [the state] to overcome the presumption that [the marriage statute] is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights."

In response to the Baehr case, the Hawaii legislature passed Act 217 (Session Laws of Hawaii 1994). The stated purposes of the act: 1) expansion of the definition of "sex" in Hawaii Constitution and "marriage" in statutes is within exclusive purview of legislature or constitutional convention; 2) both historically and presently, marriage statutes are intended to apply only to male-female couples; 3) "[u]nderstanding that same sex relationships do exist": the laws of the state do not prohibit any religious organization from solemnizing same-sex relationships and a commission on sexual orientation and the law is created. The Commission was to have four representatives from religious organizations. This caused legal battles and the Commission never really got to work. The act also amended marriage laws to explicitly state that marriage is between one man and one woman.

In 1995, the legislature passed Act 5 to create a new commission to : 1) examine the major legal and economic benefits extended to married opposite-sex couples, but not to same-sex couples; 2) examine the substantial public policy reasons to extend or not to extend such benefits in part or in total to same-sex couples; and 3) recommend appropriate action which may be taken by the legislature to extend such benefits to same-sex couples.

The Commission met from September 1995 to December 1995 and set about the tasks established in Act 5. A five-member majority of the Commission recommended that the marriage statutes be amended to permit same-sex couples to marry and to extend all the benefits and burdens of such status to those couples. "The Commission finds that married couples of the same gender are entitled to equal protection under the law and thus should be conferred governmental certification of their marriages. Therefore the Commission must reject all options...that do not confer full benefits." The two-member minority opinion recommended that no action be taken to extend any marital benefits to same-sex couples, and that the legislature undertake a constitutional amendment to "reserve marriage and marital rights to unions between one man and one woman."

In 1996, a bench trial was held to address the Baehr case. The court ruled in favor of the plaintiffs and held that the Hawaii marriage statute was unconstitutional, and that the State could not deny the plaintiffs a marriage license based upon their sex. Baehr v. Miike, 65 USLW 2399 (1996). Judge Chang concluded that the State failed to demonstrate that the exclusion of same-sex couples from the marriage statute furthers a compelling state interest.

In 1997, the Hawaii legislature passed HB 117 (1997), A Bill for an Act Proposing a Constitutional Amendment Relating to Marriage. The purpose of the bill was to propose a constitutional amendment "to clarify that the legislature has the power to reserve marriage to opposite-sex couples."

The same year, the legislature also passed HB 118 (1997), A Bill for an Act Relating to Unmarried Couples (Reciprocal Beneficiaries Act). The purpose of the bill was "to extend certain rights and benefits which are presently available only to married couples to couples composed of two individuals who are legally prohibited from marrying under state law (same-sex couples and blood relatives).

In 1998, the Hawaii electorate ratified HRS Const. Art. § 23 which stated that "[t]he legislature shall have the power to reserve marriage to opposite-sex couples."

In December 1999, the Hawaii Supreme Court ruled that, in light of the constitutional amendment, the marriage statute was no longer unconstitutional.

Copies of Ms. Childs' memo regarding her testimony are available at Legislative Council.

Testimony of Members of Vermont Clergy

In light of the frequent, albeit brief, resort to religious references during the two public hearings, the Committee invited a number of Vermont religious leaders who could speak at greater length about the connection between secular, public moral policy and the religious teachings of religious faiths currently prominent in Vermont. The Committee took testimony from a number of Vermont clergy. The following clergy testified:

Most Rev. Kenneth Angell, Bishop, Roman Catholic Diocese of Burlington

Right Reverend Mary Adelia R. McLeod, Bishop, Episcopal Diocese of Vermont

Rabbi Michael Cohen, Manchester, Vermont

Rev. Arnold Thomas, United Church of Christ

Rabbi Joshua Chasen, Ohavi Zedek Synagogue, Burlington, Vermont

Rev. Craig Benson, Cambridge, Vermont

These witnesses provided powerful testimony. Each witness examined relevant scriptures and teachings of his or her denomination of faith. In addition, the witnesses commented on the civil rights implications of the work before the committee. Finally, the witnesses explained their shared view; it is an appropriate and legitimate role for the clergy to comment on issues involving civil rights and public policies involving values and morals.

However, the testimony was not conclusive with respect to the teachings of the Judeo-Christian texts under discussion. The testimony did not address the teachings of nonJudeo-Christian faiths. The testimony drew different moral lessons, one disfavoring giving legal recognition to homosexual unions and the other favoring such recognition.

John Newman, Esq.

Mr. Newman is an attorney with the firm Reiber, Kenlan, Schwiebert, Hall & Facey in Rutland. He has practiced law in France and writes about legal matters for a French publishing house.

In November 1999, France enacted a legal status for couples living together on a long-term basis. This new status allows couples to enter into a legally-binding relationship analogous to marriage in terms of civil law rights, obligations, and public benefits. This domestic partnership arrangement is termed a Pacte Civil de Solidarité (PACS in its French abbreviation).

A PACS is a contract entered into between two individuals who have reached the age of legal majority, of the same or different gender, to organize their life as a couple. Relatives who are forbidden from marrying may not enter a PACS, nor can someone who is already married. The PACS constitutes an intermediate stage between marriage and concubinage (cohabitation). A PACS is a contract covered by French civil law. As such, the PACS not only is a particular civil status; it also is a contract subject to the general dispositions of the Civil Code, relating to contractual obligations between private parties.

A PACS contract can be quite concise, simply stating that the parties voluntarily have entered into a PACS. The contract can be much more complicated, defining the parties' respective ownership of assets, setting forth any agreement on mutual gifts of assets, etc. Individuals who have entered into a PACS are subject to the mutual aid requirement that the Civil Code imposes on married couples. Similarly, each party to a PACS is jointly and severally liable for debts contracted by the other party for the needs of their daily life and their mutual lodging. The legal definition of what needs are involved in normal domestic life is subject to extensive case law involving married couples.

Each party to a PACS continues to own the assets that he or she brought into the PACS. The French legal regime of community property, which is available upon election by married couples, does not apply to the parties to a PACS. If the parties to a PACS wish jointly to own assets that they brought into the arrangement, they must make a cross gift to each other of the assets they wish to own jointly. The law assumes that tangible personal property without a separate legal title acquired after a couple enters into a PACS is jointly owned 50/50 by the parties. A particular PACS contract may rebut this presumption.

A party to a PACS who is not independently covered by medical-maternity insurance will become covered by the social security status of the other party to the PACS (as if the couple were married) as soon as the PACS is registered. Couples living together in concubinage already had such rights, and with the new legal definition, homosexual couples living in concubinage also will qualify for mutual coverage. Other social law benefits accorded to parties to a PACS include the right to simultaneous vacations, family leave and the right to receive the social security death benefit previously paid only to a surviving spouse. A PACS will terminate: (i) upon the mutual agreement of the parties; (ii) upon a unilateral decision of one of the parties; or (iii) by the marriage or death of one of the parties. The terms of a PACS contract should be able to provide other bases for termination. The parties will arrange the separation of their assets and liabilities on their own initiative. In the absence of an agreement, the lower civil court will determine who owns what assets and owes which liabilities, without prejudice to any damages that a party may claim.

Dr. Martha Bailey, Law Professor at Queens University in Kingston, Canada

Dr. Bailey is a scholar of marriage and domestic partnership laws in Canada and other countries.

Dr. Bailey explained that in both federal and provincial laws in Canada, many of the rights and obligations of marriage have been extended to unmarried opposite-sex and same-sex couples who cohabit. Under Canada's Charter of Rights and Freedoms, it is unconstitutional for the federal or provincial government to discriminate on the basis of marital status or sexual orientation, and many laws that extended rights and obligations to married couples only or to opposite-sex couples only have been successfully challenged under the Charter.

In 1999, the Supreme Court of Canada ruled that Ontario's law on spousal support, which allowed married or unmarried opposite-sex couples to claim support from one another was unconstitutional because it discriminated on the basis of sexual orientation. Ontario passed a law to equalize the legal status of unmarried opposite-sex couples and same-sex couples for all matters that are within the jurisdiction of the province (part of it is in force now, the rest will be in force on March 1, 2000). Ontario's new law does not include same-sex couples in the definition of "spouse" but extends the same rights and obligations as are available to "spouses" (married or unmarried) to "same-sex partners." Advocates of equality for same-sex couples have announced the intention of challenging the new law as creating a "separate but equal" status that is inherently discriminatory.

Dr. Bailey said the idea of a domestic partnership structure has been considered in Canada but currently there are no such laws. She reiterated that many couples, either opposite-sex or same-sex, have many of the same rights and obligations of married persons but these are on the basis of cohabitation. There are arguments on either side of the debate for the extension of rights based on cohabitation, and some claim that the "patchwork" nature of Canada's laws is problematic.

Dr. Bailey stated her opinion that "because marriage has lost so much of its legal significance, the question of whether Canada would recognize foreign same-sex marriages or registered (domestic) partnerships is not as pressing as it might once have been." She believes foreign same-sex couples who travel to Canada will be subject to the same legal framework as Canadian same-sex couples, regardless of whether they are married or "registered." A same-sex marriage valid under the law of the place where the marriage was celebrated could be recognized in Canada. Even though Canada has maintained the traditional definition of marriage as a union of one man and one woman, Dr. Bailey believes the trend toward extending marital rights and obligations to same-sex couples would make any claim that same-sex marriage deeply offends Canadian public policy difficult to maintain. She said it may be more difficult for Canada to fully recognize foreign registered (domestic) partnerships, because Canada does not have an equivalent institution, but foreign registered domestic partners may be entitled to rights and obligations on the basis of their cohabitation

Registered partnership laws have been enacted in every Nordic country except Finland (which is about to enact or has just enacted one). The Nordic model permits registration by same-sex couples only, and confers the same status, rights and obligations as married couples, with very few exceptions. The intention was to address discrimination against same-sex couples. Dr. Bailey said that opposite-sex couples have the right to marry if they choose, so there was no perceived need to include them in the registered partnership scheme, and there was a concern that extending the rights of obligations of marriage to opposite-sex couples on the basis of registration would undermine the institution of marriage.

The Dutch model would appear to permit registration by same-sex or opposite-sex couples with a few differences in the rights and obligations. Dr. Bailey said the Dutch decided that the registered partnership option (and eventually marriage as well) should be equally available to same-sex or opposite-sex couples, and during the first 10 months of the new law, about one-third of the total of 3,996 registrations was between opposite-sex couples.

A bill to open up civil marriage to same-sex couples is currently under consideration by legislators in the Netherlands, with a target date of January 1, 2001. If same-sex marriage is legalized, it will not be exactly the same as opposite-sex marriage; e.g., international adoption will be available only to opposite-sex couples.

Michele Childs, Legislative Council

Michele Childs briefed the committee on Loving v. Virginia, 388 U.S. 1 (1967), which has been cited by the Baker Court as well as many others as important to the issue of same-sex marriage.

The Supreme Court held unconstitutional a statute prohibiting interracial marriage. The statute was found to violate equal protection because it relied solely on distinctions based upon race. It was judged to deny due process because it deprived an individual of significant freedom in choosing whom to marry. Because the right to marry is a fundamental right, the state must show a compelling interest if it restricts this right on the basis of a suspect class, such as race.

In 1958, two residents of Virginia, Mildred Jeter, an African-American woman, and Richard Loving, a Caucasian man, were married in the District of Columbia, pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital home. Later that year, a grand jury issued an indictment, charging the Lovings with violating Virginia's ban on interracial marriages.

On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. After their convictions, the Lovings moved to the District of Columbia. In 1963, they filed a motion in a Virginia trial court to vacate their convictions on the ground that the miscegenation statutes were a violation of the Fourteenth Amendment. In 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings filed an appeal to the Supreme Court of Appeals of Virginia. The Supreme Court of Appeals upheld the constitutionality of the miscegenation statutes and, after modifying the sentence, affirmed the convictions. The Lovings appealed this decision to the United States Supreme Court.

Virginia offered two arguments as to why the statutes should be upheld. First, the State argued that the Equal Protection Clause, as it related to the penal laws concerning interracial marriage, only required that the laws "apply equally to whites and Negroes in the sense that members of each race are punished to the same degree." Thus, the State contended that, because its miscegenation statutes punish both the African-American and Caucasian equally for entering into an interracial marriage with one another, these statutes do not create impermissible discrimination despite their racial classifications. The second argument advanced by the State was based on the assumed validity of the first. It reasoned that if the Equal Protection Clause permits racial classifications as long as they are "applied equally", then the question of constitutionality was whether there was any rational basis for a State to treat interracial marriages differently from other marriages.

The Supreme Court rejected both of the State's arguments, finding that marriage is a fundamental right, race-based classifications are inherently suspect and subject to strict judicial scrutiny, and miscegenation laws do not serve any legitimate State purpose, and are therefore a violation of equal protection and due process under the Fourteenth Amendment.

The Committee examined several other quotations from Loving:

"There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."

"Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.

These convictions must be reversed."

The Committee developed a consensus that the Loving decision would play a key role in the legislature's response to the Baker decision.

Harvey J. Golubock, Esq., Executive Director, Vermont Human Rights Commission

Speaking on behalf of the Commission, Mr. Golubock encouraged the committee to be cognizant of what he urged were similarities between the current debate and that which took place during the struggle for civil rights for African-Americans.

Golubock referenced the doctrine of "separate but equal" instituted by the U.S. Supreme Court in Plessy v. Ferguson in 1896, which permitted states to institute separate facilities as long as they were equal, and the Court's eventual rejection of the doctrine in Brown v. Board of Education in 1954, which found that state-mandated segregation was "inherently unequal" because it stigmatized African-American children who were forced to attend separate schools.

Golubock suggested that creating a domestic partnership system for same-sex couples to obtain the benefits of marriage would "repeat the errors of the separate but equal doctrine" by stigmatizing same-sex couples as "unworthy of marriage."

"The fact that some, or even many, Vermonters may oppose a law permitting gays and lesbians to marry does not justify relegating same-sex couples to a separate institution in order to obtain the benefits of marriage. Indeed, that very reasoning formed the basis of the separate but equal doctrine. The Supreme Court since has recognized on many occasions that laws cannot be justified on the ground that they reflect public bias."

Maxine Jo Grad, Esq., Chair, and Judith Sutphen, Executive Director, Governor's Commission on Women

Ms. Grad and Ms. Sutphen spoke on behalf of the Commission and its support of same-sex marriage. The Commission signed on to the Freedom to Marry Task Force in 1996.

Grad offered four reasons why the Commission supports same-sex marriage: 1) same-sex marriage promotes the Commission's mission to find long-term solutions to the problems that confront women and their families; 2) same-sex marriage is consistent with the Commission's core value that all women must have the opportunity and be encouraged to participate fully in society for the betterment of the lives of all; 3) same-sex marriage is in accord with the Commission's long-standing history of promoting civil rights; and 4) same-sex marriage furthers the Commission's goals to ensure that proposed legislation strengthen and support families, and promote the best interests of children.

Sutphen said that while protection of the rights of minorities is not always popular, it is still the right thing to do. "There are infinite human variations in relationships and these variations enable all of us to see that there is a vision of equality that does not require sameness, that there is glory in diversity and differences and that we can rejoice in the social and cultural differences that both enrich our society as well as threaten to divide it."

Beth Robinson and Susan Murray

Beth Robinson and Susan Murray, the attorneys for the plaintiffs in Baker, followed up on their testimony from the Committee's first hearing. They reviewed the holding of Baker, and then urged the Committee to pursue a strong and complete response to the decision; namely, in their judgment, full civil marriage rights for eligible same-sex couples. Their testimony included a recitation of excerpts from Martin Luther King, Jr.'s Letter From a Birmingham Jail, wherein Dr. King prodded white moderates to take more assertive action to obtain civil rights for black Americans. Committee members asked a number of questions concerning the basic question of civil rights for homosexuals.

Robinson and Murray discussed the Loving case, and how, in their view, the same constitutional analysis applies in the context of marital rights for gay and lesbian couples.

Committee discussion

The Committee concluded its work for the week with a discussion of the scope, structure and pace of the legislation that was expected to be discussed in Committee in the weeks ahead. Chair Little advised the Committee that he would be pushing for a commitment to a particular piece of legislation sooner rather than later.

The Chair circulated a rough draft of a preamble to the impending legislation. The preamble contains a proposed, independent assessment of the meaning of the Common Benefits Clause as applied to the rights and responsibilities of same-gender couples. The committee discussed two drafts of the preamble, but took no action and reserved the preamble for further committee discussion and review.

Thomas A. Little, Chair

Note: This summary represents the Chair's recollection of the testimony received by the Committee during this week. The Chair, and no other, is responsible for any discrepancies.

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1 This summary represents the Chair's recollection of the testimony received by the Committee during this week. The Chair, and no other, is responsible for any discrepancies.