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Summary: Work of the House Judiciary Committee
for the week of January 17 - 21, 2000.This week, the Committee shifted its focus from the content of the Supreme Court's Baker v. State decision to the legal and social history of civil marriage, the basics of Vermont's marriage and divorce laws, and the subject of "full faith and credit" of state laws (i.e., "portability"). The testimony summarized the rights and privileges of husbands and wives as marriage traditions and laws evolved in America from the 1600's to the present; the status of women's spousal rights since Vermont was founded; the marriage laws of Vermont in the year 2000; how the Vermont divorce laws work; and how and when the laws of one state must be observed by another state. The Committee took testimony from a variety of witnesses, including professors from Yale University, Catholic University School of Law, Vermont Law School, Brigham Young University Law School, and Capital University School of Law; a Vermont attorney with decades of experience practicing in domestic relations law in Vermont; and a Vermont attorney with extensive experience representing gay and lesbian families in Vermont.
The Committee saw some apparent consensus reached in a number of areas:
It is simple for a man and a woman to obtain a marriage license in Vermont. The state imposes no blood test or waiting period; the license form is a single page available from any town clerk; the marriage may be formalized by a variety of readily available officials, including town justices of the peace; the license fee is low. The termination of a marriage involves a far less simple process. Where there are no minor children and no contested property or income issues, the process may take only two or three months and limited involvement of attorneys. However, when there are minor children and custody, child support or visitation are contested, or where the parties contest a property division and/or alimony, the process can take years and costs thousands of dollars in attorney fees. The Family Courts are seriously over-burdened with divorce, parentage and other family disputes. The rising percentage of parties who are not represented by an attorney (believed to be as high as 60%) means that many proceedings take considerably more court time. The Family Courts have developed creative strategies for managing the case load, but require additional judges and other resources. By entering into contracts, gay and lesbian couples can obtain some of the legal benefits or privileges that married couples have. However, only some marriage benefits are available in this fashion, and for those that are, considerable attorney assistance is often necessary and the validity of some of the contracts is not certain. Under the federal constitution's "full faith and credit" clause, the statutory laws of one state generally must be recognized and honored in another state; however, states have broad discretion and may choose to apply their own law if they have a demonstrable interest. Most states generally have recognized marriages performed in other states, with some exceptions (i.e., first cousin marriages, age of consent). If a state has a strong public policy on an issue that conflicts with the policy of another state, it can choose to apply its own law. For example, where a couple from one state, who is not permitted to marry under that state's laws, travels to another state where they may be legally married, and then return to their home state, the home state will not be required to recognize the marriage. This law is well-established, and is independent of the Defense of Marriage Act (DOMA). The same result would be likely if the example involved a domestic partnership, although the law of domestic partnerships is less developed. In either case, the individuals involved could try to bring a claim against the second state, alleging that the non-recognition violated that state's, or the federal, constitutional protections concerning equal protection of the laws. No state or country currently permits gay or lesbian couples to marry. Certain states and countries provide limited or considerable rights and benefits to such couples. Two states, California and Hawaii, plus the District of Columbia, have a domestic partnership structure that provides limited benefits. The marriage laws, and the rights of spouses, have evolved significantly over the last 250 years. Most states at one time prohibited black Americans from marrying white Americans. Married women were prohibited from owning property and signing contracts in their own names until late in the 19th century. Divorce laws were enacted in the early 19th century to give better treatment to families whose fathers/husbands had abandoned them. 1. Nancy Cott
In order to better understand the current law and status of marriage, the Committee solicited testimony from an historian in the field who could portray the present in the context of the past. Nancy Cott is a professor of American social history at Yale University. Professor Cott presented a survey of the history of the institution of civil marriage in the United States, from the 1600's through the present. Cott noted that what is thought of as "traditional" marriage has only been around since the 17 th century. Prior to that time, "informal" or "common law" marriages, cohabitation and serial monogamy were common. As the colonial period ended, marriage quickly became a civil legal institution (as opposed to a religious institution) established and regulated by the states, reflecting the religious pluralism and religious tolerance typical of our history as a country. Cott also explained that early in our country's history, the states' primary interest in marriage was the advancement and protection of families, particularly when marriages terminated, leaving women, children and the elderly in vulnerable situations (and at risk of becoming dependent on the state for their livelihoods). In the late 18th century, there were fewer state benefits and privileges associated with the status of marriage than there are now.
Professor Cott noted that from the early times of civil marriage statutes in this country, the primary principle of marriage was mutual consent; this echoed the prevailing Christian doctrine of the time. Over time, this emphasis on mutual consent found its way into the divorce laws, culminating in the retreat from divorce conditioned upon proof of wrongful conduct to "no fault" divorce. As we enter the 21st century, states are still in the business of authorizing and regulating civil marriage as both a desirable end in itself and as a means to foster stable families.
Professor Cott also made some other observations: (1) the 20th century saw the emergence of the courts treating marriage as a "zone" of personal freedom and liberty, into which the state should interfere with caution; (2) the rise in contraception, the increase in adoptions, and the increase in alternative means of conception dilute, or attenuate, the connection between civil marriage and procreation; (3) the state's interest in marriage now appears to extend beyond that of promoting procreation to fostering stable social interactions; (4) as an institution, civil marriage has endured by adapting as legal standards and social mores evolved; (5) nothing can "copy" marriage - the whole "aura of the status of marriage" cannot be duplicated because it has traditionally been recognized and promoted in history.
2. Eileen Blackwood
Eileen Blackwood has practiced law in Vermont since 1986; a portion of her practice involves assisting gay and lesbian Vermonters to deal with the Vermont legal system. Blackwood lead the Committee through a discussion of the principal legal benefits, privileges and responsibilities available only to married persons under Vermont law. She divided these into three categories: (1) legal relationships of a married couple to each other; (2) legal relationships of a married couple third parties and the government; (3) legal relationships with children of the marriage. Blackwood provided the Committee with a list of the statutes involved with these relationships. She explained that she has drafted contracts and other documents for gay and lesbian couples to try to replicate some of these legal relationships. Many of the legal relationships cannot be replicated in this fashion, and those that can have some unavoidable uncertainties or require the use of an attorney. Gay and lesbian couples whose relationship terminates do not have access to Family Court to settle their differences, and instead must try to seek relief in Superior Court.
3. Phyllis Boltax
Phyllis Boltax is a 20 + year family law practitioner with extensive experience representing clients in divorce and other Family Court proceedings. She chairs the Vermont Bar Association Family Law Committee. Boltax walked the Committee through each stage of a typical divorce proceeding, pointing out the differences between contested and uncontested cases. She described the stress on all family members during contested proceedings, the expense of the proceedings, and the great length of time that often is necessary to complete a contested case.
Boltax explained the workings of the Barre Family Court project, which uses a variety of alternative dispute resolution methods to deal with the Court's congested docket and the high frequency of cases where one or both parties are not represented by an attorney. She estimated that in 60% of the cases, one or both parties appear in court without legal counsel. This often requires the judge to take extra time to explain proceedings and focus the parties on the issues that are material to the case. The Barre project attempts to tailor the structure of the decision-court process to the stage of each case at the time.
Boltax closed her testimony with a plea that new judges, and the necessary resources to support them, be authorized for Family Court.
3. Gil Kujovich; Lynn Wardle; Mark Strasser.
Gil Kujovich is a professor at Vermont Law School; his teaching and research areas include constitutional law. Lynn Wardle is a law professor at Brigham Young University whose teaching and scholarship focus on family law. Mark Strasser is a law professor at Capital School of Law, Columbus, Ohio, whose work has emphasized legal issues confronting gays and lesbians. These professors testified separately, but each addressed and examined the effects any new Vermont legislation might have in other states. Except where indicated, the following summary reflects the Chair's understanding of the cumulative testimony of these law professors.
Professor Kujovich explained that "conflict of laws" principles are used by a state court to determine whether to apply its own state's law in a pending case, or the laws of some other state. A primary conflicts of laws principle involves an analysis of the number and significance of the contacts or relationship between one or both parties, or of the subject matter of the case, to the state where the case is pending.
Each of the law professors also addressed the federal constitution's "full faith and credit" clause. This clause generally requires a state to observe and honor the court judgments and statutory laws of the other 49 states. It is well established that there are few exceptions to this rule with respect to a court judgment or order. It is also well established that a state has significant discretion to not give full faith and credit to a statutory law of another state, if the other state's statute conflicts with a strong public policy of the state. This significant discretion rule applies to the recognition of a marriage from another state. Accordingly, where a couple who is not authorized to be married in its home state (State A) travel to a state where they may be legally married (State B), and become married there, upon their return home, State A is not required by the full faith and credit clause to recognize the State B marriage. It is possible that there would be a different result if the couple had resided in State A for 5 -10 years, and then moved to State B, since the non-recognition rational is strongest when the couple travels to another state to evade the marriage laws of its home state.
Under this analysis, if Vermont were to establish a same sex marriage or domestic partnership licensing law, and a gay or lesbian couple from another state traveled to Vermont to obtain such a license, upon their return to their home state, because of the strong public policy issues raised by marriage laws and the uniqueness of the Vermont license, the home state would not be required by the full faith and credit clause to recognize the license.2 A couple who obtained such a license in Vermont and continued to live here for 5-10 years before moving to another state might face a better chance of having the license honored in their new state of residence.
There may be "recognition" differences between the two types of licenses, but there was no clear consensus among the three law professors regarding whether a Vermont same sex marriage license would be more likely to be recognized in another state than would a Vermont domestic partnership license. There was agreement that in a "mini DOMA" state, it would be difficult to get recognition for either same sex marriage or domestic partnership. Kujovich and Strasser both thought that marriage, as opposed to domestic partnership, would have a somewhat greater chance of recognition in states that do not have a mini-DOMA , but they did not "quantify" their opinions. All agreed that state-to-state outcome regarding recognition of either same sex marriage or domestic partnership is "little more than a guess" and that DOMA will likely be challenged in light of Vermont legislation, whichever path is chosen.
The Congress enacted the "Defense of Marriage Act" (DOMA) in 1996. This federal law contains two provisions. The first provision declares that states are not required to recognize any "public act, record or judicial proceeding...respecting a [same sex relationship] treated as a marriage...". Thirty states have passed "mini DOMA" laws which declare that same sex marriages will not be recognized in that state. These state laws probably do not change the existing full faith and credit law for recognition of marriages, as described above. The second provision states that for all purposes of federal law, the term "marriage" means only a union between a man and a woman. In the opinion of one of the professors, this provision merely restates existing federal law in this regard. These federal and state laws may be subject to federal constitutional challenges, but in the meantime, would make it even more unlikely that another state would recognize a Vermont license for a same sex marriage or domestic partnership.
1. January 25 Public Hearing.
The House and Senate Judiciary Committees will jointly hold a public hearing on January 25, 2000. The hearing will run from 7:00 to 10:00 p.m. in the well of the House. In anticipation of a very large audience, witnesses will be selected at random from sign-up sheets. Witnesses will be limited to two-minute presentations, and will not be permitted to transfer their time to another. Witnesses will be asked to address the question: "What should be the legislature's response to the Baker v. State decision?" The Committees will require the witnesses, and the audience, to observe traditional rules of civility and decorum.
Thomas A. Little, Chair
1. This summary reflects the Chair's understanding and best recollection of the testimony. The Chair is solely responsible for any errors or omissions.
2. Professor Kujovich explained that this couple might have a federal claim against its state under the U. S. Constitution's equal protection clause, if its state recognized a Vermont man-woman marriage but not a Vermont same sex marriage. This question has never arisen and there are no definitive precedents to guide a prediction of how such a case would be decided by the U. S. Supreme Court.