STATE HOUSE
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MONTPELIER, VT 05633-5301
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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 January 24 - 28, 2000.This week the committee focused on the first public hearing regarding the Legislature's response to Baker v. State, some of the potential fiscal impacts of granting "the common benefits that flow from marriage," the legal doctrine of "separate but equal," and various domestic partnership models.
The public hearing was held jointly with the Senate Judiciary Committee on Tuesday, January 25. The hearing drew some 1,000 Vermonters to the State House. The Committees were able to hear from 115 witnesses. Names were drawn at random, and the testimony balanced but polarized, with about half the witnesses testifying in favor of extending full marriage rights to same sex couples, and half opposing the extension of any legal rights to same sex couples. The tone of the testimony and the demeanor of the witnesses (and of the crowd) were polite and respectful. A second hearing was announced for Tuesday, February 1.
Toni Hartrich, Legislative Joint Fiscal Office - Ms. Hartrich reviewed some of the potential costs associated with granting "the common benefits that flow from marriage." She said that it is difficult to estimate how many people would take advantage of new legislation, whether it was same gender marriage or domestic partnership. She estimated that studies range in their estimates of the percentage of the adult population that is gay or lesbian. The estimates range from 2-3% to up to 10%. Likewise, there is no consensus yet on the percentage of the gay/lesbian adults who would take advantage of any legislation passed by the General Assembly. Toni advised that one analysis projected that 15% of the eligible adult gay/lesbian population would take advantage of the legislation. She used these estimates to project that the number of participating same gender Vermont couples could be up to 1,000, with an estimated 250 to 300 couples taking advantage of the legislation in the first year. Toni made it clear that these figures could be larger.
She said that there do not appear to be many major start-up costs; however, there will be moderate impacts on the courts, the health department and the tax department. "In general, partnerships should have a small overall fiscal effect on health insurance, retirement, death benefits, school loans and grants and social service benefits.... The impact on tourism and migration is not yet determined." (A copy of Ms. Hartrich's comments is available in Legislative Council.)
Lee Suskin, Court Administrator - Lee Suskin gave a general report on the workloads currently being experienced by the Family Courts and the judges and other employees who staff those courts. He advised the Committee that the caseload of the Family Court judges has increased 50% since the Family Court was created in 1991, while only a single judge has been added in that period. Mr. Suskin described the process by which the judiciary has determined that the current caseload warrants the addition of 7 judges. The judiciary is asking the General Assembly for two new judges for FY 2001, and plans to ask for another judge in the first half of FY 2002. The judiciary is mindful of fiscal restraints on the General Fund budget. He noted that the addition of a new category of litigants into Family Court as a consequence of the Baker decision and any resulting legislation would exacerbate the current excessive workloads, which often result in delays in the handling of many requests for court action . These delays are troubling to the families who need the services of the Family Courts.
Thomas Coleman, director, American Association for Single People - Mr. Coleman is an attorney in Los Angeles and his work addresses "marital status bias," family diversity and domestic partnership issues. The mission of AASP is " to promote the well-being and civil rights of all unmarried adults."
Coleman presented seven legislative options and their potential consequences: 1) Do nothing; 2) Pass a bill to place proposed constitutional amendment on the ballot; 3) Pass a bill this year to legalize same-sex marriage; 4) Defer the final vote on a remedy for a year or two; 5) Enact a comprehensive domestic partnership act this year; 6) Enact a limited domestic partnership act this year (in addition to or in place of #5); 7) Expand protections against marital status discrimination (in addition to #5). Other issues discussed included the potential effects of legalization of same-sex marriage; demographics on marital status and adults in households in both Vermont and the United States; domestic partnership laws in Hawaii, California and other countries; and the portability of domestic partnerships vs. marriage.
Coleman believes that the "reasonable period of time" afforded for the legislature to complete its work would allow more than one year to create a partnership structure. He suggested that a task force could annually review the implementation of any domestic partnership law and report back to the legislature, which can then act to remedy any inequities. In applying a domestic partnership structure, the courts could be guided by the marriage laws but not be bound by them if the application of the laws would produce absurd results. (A copy of Mr. Coleman's materials presented for testimony is available in Legislative Council.)
Gil Kujovich, constitutional law professor, Vermont Law School - Professor Kujovich is an expert on the Equal Protection Clause of the United States Constitution and issues regarding racial equality. Professor Kujovich discussed the federal treatment of "separate but equal," the relevance of Vermont's Common Benefits Clause to the issue, and the difference between marriage and domestic partnership as they relate to the issue.
Kujovich reviewed the history of "separate but equal" from its inception in 1850, to its affirmation in Plessy v. Ferguson (1896), which upheld separate railroad cars for whites and blacks, to the Supreme Court's decision in Brown v. Board of Education (1954) which held that separate schools for black children created a feeling of inferiority and thus were inherently "unequal." The federal Equal Protection Clause prohibits a classification based upon a "suspect class" unless the state can show a "compelling interest" for the distinction. To determine whether a group qualifies as a suspect class, the Court asks 1) whether the classification is based upon an immutable trait, 2) whether there is a history of discrimination against the class of persons, and 3) whether the classification serves to stigmatize the group. Race is a suspect class. Currently, federal equal protection law does not recognize sexual orientation as a suspect class, and therefore does not impose strict scrutiny when a statute distinguishes on the basis on sexual orientation. The statute will survive as long as the distinction "arguably serves some permissible purpose." This is based on federal district and circuit court rulings, as the Supreme Court has not directly decided this issue. According to Kujovich, "the federal constitution is not likely, in my view, to be a barrier to the creation of domestic partnerships status, unless it appears that the legislature adopts it simply because of animosity toward same sex couples."
Kujovich believes that the Baker opinion clearly extends an invitation to the legislature to create a domestic partnership structure as long as the benefits are the "same" as those conferred to married persons. The Court mandated equality of benefits, but reserved judgment on "equality of status." Kujovich said that the state must ensure that private parties who confer benefits to married persons must also confer those benefits to domestic partners, with accommodations to religious organizations, or else married persons, because of their state-designated marital status, will have access to benefits that domestic partners do not. According to Kujovich, "[u]nder the Common Benefits Clause as determined in Baker the domestic partnership status seems likely to be constitutional if it affords full equality of benefits including benefits afforded married couples by the private sector."
Kujovich stated that, in his view, the debate should not be only about the definition of marriage but about who will be afforded the "preferred status" of marriage. "Will it be limited to heterosexual couples or will it include same sex couples?", said Kujovich. "I've already made clear my view that this issue has not been resolved by state or federal constitutional law. The choice has been left to those who have been given the political responsibility to govern. However, if the exercise of that responsibility ultimately leads the legislature to choose domestic partnerships, then the choice should be made with a keen appreciation of the inequality that remains. If our community and our government are not yet ready to embrace full equality for same sex couples, the intangible quality of dignity as well as the tangible quality of benefits, then at least we should not lose sight of the task we have deferred to another day." (A transcript of Professor Kujovich's testimony is available at Legislative Council.)
The Committee engaged in a number of vigorous discussions about the direction, scope and pace of its bill-drafting efforts. These discussions will continue when the Committee reconvenes on February 1. During that week, the Committee will assess its schedule for the month of February.
Thomas A. Little, Chair, House Judiciary Committee
1 This summary reflects the Chair's understanding and best recollection of the testimony. The Chair is solely responsible for any errors or omissions.