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HOUSE OF REPRESENTATIVES STATE HOUSE TELEPHONE: (802) 828-2231 |
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Summary: Work of the House Judiciary Committee
for the week of January 11 - 14, 2000.The Committee started its study of the meaning and import of the Supreme Court's Baker v. State decision of December 20, 1999. Testimony was taken from a variety of witnesses, including the attorneys on both sides of the case and a constitutional law professor from Vermont Law School. This is part of the Committee's general strategy to carefully study the Constitutional and statutory law applicable to marriage before deciding how to respond to the Supreme Court decision. The following is a concise summary of the testimony taken by the Committee.
1. Susan Murray and Beth Robinson
Attorneys from the law firm of Langrock, Sperry & Wool, Middlebury and Burlington,
and attorneys for the plaintiffs in the Baker case. Ms. Murray and Ms. Robinson stressed to the committee that in their view, the issue before the Court and legislature concerns civil marriage (and the benefits and privileges conferred by the state), not "religious" marriage. They explained that the Court decision does not require any church or religious organization to perform a marriage for any persons it does not wish to marry.
Murray and Robinson reviewed the Court's decision, and the three separate opinions with the Committee, and detailed the constitutional analysis used by the Supreme Court Justices. Ms. Murray and Ms. Robinson said that the Court specifically did not decide the issue of whether the Vermont Constitution mandates that committed, same-sex couples are, or are not, entitled to a state marriage license. However, they explained that the Court ruled that same-sex couples are entitled to the same benefits and protections afforded to married opposite-sex couples. They stated that they believe that an alternative statutory system of domestic partnerships may raise numerous "red flags" in terms of compliance with the Vermont Constitution, and that what they described as a "separate but equal" system of benefits is, in their view, inherently unequal and would not pass Constitutional muster.
2. Bill Griffin and Bridget Asay
Chief Assistant Attorney General and Assistant Attorney General, respectively. Mr. Griffin and Ms. Asay reviewed the ruling in the Baker case for the Committee and made it clear that while the Court did 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," the Court did not hold that same-sex couples are necessarily entitled to a marriage license. The Office of the Attorney General takes no position on whether the legislature should (i) expand the marriage laws to include same-sex couples or (ii) create an alternative legal structure such as domestic partnership. However, Mr. Griffin did say that he believes that the marriage option might be easier to defend legally.
3. Peter Teachout
Professor at Vermont Law School and constitutional law scholar. Professor Teachout reviewed what he believed to be the five options for the legislature: 1) include same-sex couples in the marriage laws; 2) create a broad domestic partnership structure for same-sex couples; 3) create a broad domestic partnership structure for same-sex and opposite-sex couples; 4) create domestic partnerships but also amend marriage laws; and 5) create more than one "class" of marriage. He did not promote one option over the others. Teachout said whatever option is chosen must confer the same benefits and privileges of marriage and any system that allowed significant differences in treatment would not stand. He believes that the Court's holding clearly applies to governmentally bestowed benefits and may also reach private actions if they are intertwined with government action. He reviewed the Court's three opinions and explained the differences between the constitutional analysis used in two of the opin ons. Appended to this report is a summary of Professor Teachout's explanation of these differences.
4. Tom McCormick
Partner at the Burlington law firm of McCormick, Fitzpatrick, Kasper & Buchard. Filed an amicus brief in Baker on behalf of the Church of Latter Day Saints. Mr. McCormick stated that he believes that the Court violated the separation of powers and advocates legislative restraint or a constitutional amendment.
5. Hal Goldman
Attorney in Burlington and doctoral candidate in history who filed an amicus ("friend of the court") brief in Baker on behalf of Take It To the People, a Vermont organization opposed to same-sex marriage. Mr. Goldman believes that the Baker opinion, which held that a constitutional violation exists, but referred the matter to the legislature for a remedy, is a "bizarre and illegal attempt by the Court to usurp the power of the General Assembly." Mr. Goldman considers Baker to be an advisory opinion and believes that the legislature should not take any action to remedy the constitutional violation found by the Court. Mr. Goldman said that homosexuals in Vermont "do not labor under any kind of oppression [and therefore] [t]here is no need for radical, revolutionary solutions."
6. William O'Brien
An attorney in O'Brien Law Offices, Winooski, Vermont, who filed an amicus brief in Baker on behalf of the Roman Catholic Church. Mr. O'Brien discussed the Baker decision rationale, and stated that the discussion of Baker should focus not only on the legal issues but must also involve a discussion of ethics and morality.
7. William Dorsch
A Burlington attorney who filed an amicus brief in Baker on behalf of the Vermont chapter of the National Organization for Women and a lesbian civil rights group. Mr. Dorsch advised that the denial of the right to marry for same-sex couples is sex discrimination which should be subject to strict judicial scrutiny. He noted that the plaintiffs in the case have been delivered a unfair mixed message: their state constitutional rights have been violated, but they must wait for the legislature to fashion an appropriate remedy.
8. David Coolidge
Director of the Marriage Law Project, an organization based in Washington, D.C. at The Catholic University that is opposed to same-sex marriage. Mr. Coolidge recently published an article in the weekly Standard entitled "What the Vermont Court Has Wrought: We are now on the way to a radical redefinition of marriage, but it's not too late to save the institution from its enemies." Mr. Coolidge stated that the goal of the Marriage Law Project is to reaffirm the legal definition of marriage as the union of one man and one woman. He urged that the legislature should assert its prerogatives in defining marriage and explained that he believes that same-sex committed relationships destabilize conventional marriage and, therefore, destabilize our communities and culture.
9. Greg Johnson
Professor at Vermont Law School whose scholarship focuses on the civil rights issues of gender and sexual orientation. He described his involvement in the Alaska litigation over same-sex marriage rights, and gave his perspective on the constitutional analyses employed in the Baker case. He gave an opinion that only a marriage structure would completely satisfy the Court's ruling.
10. Paul Gillies
A partner at the Montpelier law firm of Tarrant, Marks & Gillies and former Vermont deputy secretary of state for 12 years. He gave an overview of the history of civil marriage in Vermont from the 1770's forward. He described a variety of changes in the institution of marriage since then, including substantial changes in the rights of married women to own property and make contracts in their own names (i.e., on their own behalves). He also described the elimination of the various waiting periods before a marriage could be legalized (down to the 1986 elimination of a 3-day waiting period).
Note: the foregoing is the Chair's summary, designed to give a general sense of the scope and diversity of the testimony presented to the House Judiciary Committee. The details have been omitted. Every effort has been made to avoid editorializing.
Summary of Professor Teachout's explanation of different approaches taken in Baker.
I. Analytical differences between Justice Amestoy's and Justice Dooley's approaches to the analysis of the "common benefits" clause.
A. Justice Amestoy (majority) approach:
1. A "balancing" or "sliding scale" approach.
2. Under this approach, if a "common benefit" is present, then the greater the deprivation of the benefit, the greater the state's justification of the deprivation must be, and likewise the tighter the fit between the classification and the "problem" that the state is seeking to address (the more tailored the solution must be to the problem in question).
B. Justice Dooley approach (concurring opinion):
1. If a law (a) discriminates against (b) a suspect class, the court should apply a "strict scrutiny" review of the law.
2. In such an instance, to justify the discrimination or classification, the state must show that it has a "compelling interest" and that the discrimination or classification is "necessary," i.e., that there is no alternative.
3. This is called a "tiered" approach, because it is part of a two-tiered mode of analysis. The first tier deals with "ordinary" legislation, i.e., laws where no suspect class is implicated, and where the state must show only a "rational basis" for the discrimination; this usually involves showing that the state has a legitimate state interest in the discrimination and that the classification/discrimination is not totally irrational. This approach is a deferential approach by the judiciary to the legislative branch.
The second tier deals with laws where a suspect class is implicated. A law creating a suspect classification is not given a deferential treatment by the judiciary. It is usually difficult for such laws to be upheld under the strict scrutiny analysis. There is no balancing of the degree of the deprivation caused by the law against the magnitude of the state's interest.
C. Dimmer light switch vs. on/off light switch.
The Justice Amestoy approach may be compared to a "dimmer" switch, where only so much light as is necessary is used to illuminate a room, while the Justice Dooley approach is comparable to a conventional on/off switch that is either all the way on, or all the way off.
II. Practical differences between the two approaches.
A. Assume that the General Assembly were to pursue a broad domestic partnership structure for the legislation, and that the legislation results in at least some difference in treatment between heterosexual couples (marriage) and homosexual couples (domestic partnership).
B. Under the Amestoy "balancing" approach, the magnitude of the differential treatment would be balanced against the magnitude of the state's interest in the differences. The state's interests might include concerns about societal impacts, the desirability of a smooth transition, or impacts on the family courts, for example. This approach would tend to place the burden on the party trying challenge the law that created the differences.
C. Under the Dooley "strict scrutiny" approach, there is no balancing, and the state would be required to carry the heavy burden of establishing a compelling reasons for the differences in order to uphold the law that created the differences.
III. In any particular future case, it is problematic to predict which approach the Supreme Court
would use to analyze a challenge to legislation enacted in response to Baker.
Note: This summary was prepared by the Chair, and reflects his notes and impressions of Professor Teachout's presentation.