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Report of the

Vermont Civil Union
Review Commission

Prepared by

Legislative Council
115 State Street
Montpelier, VT 05633-5301
802-828-2231

January 2001

I. The Commission

The Vermont Civil Union Review Commission (the Commission) was established by Sec. 40 of Act 91 (H.847) of the Acts of the 2000 Vermont General Assembly. (Appendix A.)

The Commission consists of 11 members:

The Commission is staffed by Michele Childs, Legislative Counsel, and Demis Martin and Jo Ellen Pirie, Committee Assistants.

II. The Commission’s Charge

Act 91 directs the Commission to:

  1. Prepare and implement a plan to inform members of the public, state agencies, and private and public sector businesses and organizations about the act.

  2. Collect information about the implementation, operation, and effect of the act, from members of the public, state agencies, and private and public sector businesses and organizations.

  3. Collect information about the recognition and treatment of Vermont civil unions by other states and jurisdictions, including procedures for dissolution.

  4. Evaluate the impact and effectiveness of the act, with particular attention to the Findings, Purpose, and Construction sections of the act.

  5. Explore and propose methods and techniques, including existing and emerging forms of alternative dispute resolution, to complement the judicial system for the appropriate resolution of questions or disputes that may arise concerning the interpretation, implementation and enforcement of the act.

  6. Examine reciprocal beneficiaries relationships and evaluate whether nonrelated persons over 62 years of age should be permitted to establish a reciprocal beneficiaries relationship, and whether the legal benefits, protections and responsibilities of a reciprocal beneficiaries relationship should be expanded.

  7. Report its findings, conclusions and recommendations to the general assembly, periodically as deemed necessary by the commission; however, the commission shall report to the general assembly and governor, at least annually, by January 15 of the years 2001 and 2002.

III. Meetings and Witnesses

The Commission met twice in 2000: October 4 and November 15. The meetings were held at the State House in Montpelier.

The Commission heard from the following witnesses:

IV. Civil Union Review Commission Web Page

After reviewing civil union information currently available to the public from various sources, the Commission concluded that although informative materials are readily available, the public may not be aware of how to locate the information. The Commission established a web page (http://www.leg.state.vt.us/baker/cureview.htm) to provide a variety of information on civil unions, as well as keep the public updated on the activities of the Commission. The intention of the Commission is to provide “one-stop-shopping” on the Internet for people interested in learning about the new law.

Information available on the web page includes:

V. Solicitation of Comments

The Commission has begun the process of “collect[ing] information about the implementation, operation and effect of the act … [and] recognition and treatment of Vermont civil unions by other states and jurisdictions, including procedures for dissolution.”

An announcement seeking comments was published in the November issue of the Vermont Bar News. A similar announcement, requesting information about same-sex couples who have established a civil union in Vermont and have sought to have their relationship recognized in another state or jurisdiction, was sent to the American Bar Association Newsletter and National Association of Bar Executives Journal for publication. This announcement also was sent to legislative council staff in all 50 states, asking that they notify Vermont Legislative Council of any developments in their state. The National Conference of State Legislatures, a bipartisan organization which serves state lawmakers and staffs, was advised of the Commission’s work, and asked to assist Vermont Legislative Council in tracking other states’ legislative proposals and ballot initiatives which may pertain to civil unions.

The Commission is in close contact with state agencies on issues relating to civil unions. Agencies were requested to file copies of proposed rules affecting civil unions with Legislative Council at the time the rules are filed with the Secretary of State. Several agencies, including the Department of Banking, Insurance, Securities, and Health Care Administration, the Department of Health, the Department of Taxes, the Department of Commerce and Community Development, the Human Rights Commission, as well the Secretary of State and representatives of the Court, testified before the Commission, and communicate frequently with Legislative Council about the development of rules and policies affecting civil unions.

The Commission plans to provide an opportunity for public comment at meetings in 2001. The Commission favors setting aside a half hour at the end of each meeting to allow for comment on the implementation, operation and effect of the act, and will consider holding meetings in locations around the state. At any time, comments may be sent to: Vermont Civil Union Review Commission, c/o Legislative Council, 115 State Street, Drawer 33, Montpelier, VT 05633-5301.

VI. Commission’s Findings

INTRODUCTION

The intent of the Commission’s findings in this report is to summarize information it has collected to date regarding Act 91. Because the law has been in effect for only six months, the Commission spent the majority of its time and effort collecting information pertaining to the implementation and operation of Act 91.

FINDING 1

The Department of Health (specifically, the Office of Vital Records within the Division of Health Surveillance) is the state agency that serves as custodian of all vital records, including birth, death and marriage certificates, records of divorce or annulment, and reports of fetal deaths and abortions.

Act 91 added civil union certificates to the list of vital records in 18 V.S.A. § 5001, and gave the Department of Health (DOH) the responsibility to:

In April 2000, a DOH work group was established to plan its part in the implementation of Act 91. The group included vital records and health statistics staff, the director of health surveillance, the department’s attorney, and public relations staff. The commissioner and deputy commissioner of health were kept apprised of the group’s progress, and were consulted as needed. In addition, the group had periodic contact with Secretary of State Markowitz and her staff to ensure the coordination of their respective roles in the implementation and the consistency of the informational materials produced.

In designing a system for certifying, registering and reporting civil unions, DOH was guided by the principle contained in Act 91 that procedures for establishing civil unions should parallel those governing marriages. To that end, DOH did the following:

Prepared certificate forms

Prepared informational brochures

Updated administrative materials

Distributed forms, delivered training and provided information

Developed New Data and Reporting Systems

It is estimated that civil unions have added an additional five hours per week to the workload of the Office of Vital Statistics, which has a staff of six full-time employees. Staff time is expected to decrease as soon as the office implements a three-year plan to collect all data electronically. Approximately $5,000.00, excluding staff time, was spent on start-up costs for implementation of Act 91. Most of the money was spent for printing and photocopying. Mr. William Apao, Director of Public Health Statistics, testified that the administration of civil unions is operating well and the workload is manageable for the agency.

FINDING 2

The Office of Vital Statistics has provided preliminary data on civil unions for the period of July 1, 2000 through December 29, 2000. During that period, there were a total of 1,527 civil unions certified, registered, and filed with Office of Vital Statistics.

No reciprocal beneficiaries relationships have been registered with the Office of Vital Statistics at this time.

FINDING 3

Town clerks provide civil union licenses, as well as information about civil unions. Town clerks were supplied with the necessary forms, guidance and training by DOH. See Finding 1. Implementation of Act 91 in town clerk offices throughout the state appears to be proceeding smoothly.

Town clerks’ offices provide the following forms and information to the public:

According to Linda Spence, President of the Vermont Municipal Clerks and Treasurers Association, and Deborah Markowitz, Secretary of State, there have been no reports of a town clerk denying a civil union license to a qualified couple.

FINDING 4

Utilization of judges, justices of the peace and clergy for certification of civil unions appears to be providing an equal opportunity for parties to a civil union to register their relationship. The J. P. Guide, published by the Office of the Secretary of State, explains the duties of Vermont’s justices of the peace, and includes a section regarding the certification of civil unions. (Appendix D.) Training sessions for justices of the peace were conducted around the state by the Secretary of State, and included a discussion on civil unions.

FINDING 5

The Vermont Human Rights Commission (HRC) is responsible for enforcing the civil rights laws, particularly those prohibiting discrimination based upon a person’s sexual orientation with regard to fair housing and public accommodations. (Appendix E.)

The HRC has received inquiries and complaints regarding the civil union law. Two complaints involve inns which allegedly provide facilities and services for wedding ceremonies and receptions, but refuse to do so for civil union ceremonies and receptions. Another complaint claims that a newspaper publishes wedding announcements, but not civil union announcements. A fourth complaint alleges a photographer provides services for marriages, but refuses to photograph civil union ceremonies. Information about the parties indicated in these complaints is confidential at this time.

After an investigation, the HRC issues a report which is sent to the parties. Parties are given an opportunity to meet with the HRC. If the HRC finds discrimination, it offers the parties mediation. The HRC may bring a lawsuit seeking an injunction, compensatory and/or punitive damages, civil penalties of up to $10,000.00, and attorney’s fees and costs.

The HRC is also responsible for public education and outreach. The HRC published a fact sheet entitled “Vermont’s Civil Union Law” which was distributed to town clerks. A fact sheet entitled “Vermont’s Civil Union and Public Accommodations Laws” summarizes the connection between civil unions and one of Vermont’s anti-discrimination laws, and is available from the HRC. (Appendix E.)

FINDING 6

Sections 17 and 18 of Act 91, which took effect January 1, 2001, are directed to insurance companies doing business in Vermont, and require that insurance products offered to married couples, spouses and families also be made available to parties to a civil union and their families. On August 21, 2000, the Department of Banking, Insurance, Securities, and Health Care Administration (BISHCA) filed a proposed regulation with the Secretary of State that delineated what would constitute unfair discrimination by insurers regarding their treatment of civil union couples. Prior to filing the proposed regulation, BISHCA sought input from the insurance industry, supporters of civil unions, opponents of civil unions, and other interested persons. A public hearing on the proposed regulation was held at BISHCA on September 26, 2000, and public comment was received after the hearing. After considering the public comments, BISHCA filed a final proposed regulation on November 15, 2000 which was approved by the Legislative Committee on Administrative Rules on December 6, 2000. (Appendix F.) The regulations appear prominently on BISHCA’s website (http://www.bishca.state.vt.us/Civilunion/defaultcv.htm).

BISHCA has developed model endorsements to be used by insurers to bring forms currently on file and approved by BISHCA into compliance with Act 91. (Appendix F.) A consumer pamphlet, “Information for Civil Union Partners in Vermont: Common Questions Regarding Personal Finance: Insurance, Banking and Tax Issues,”

has been produced by BISHCA, in conjunction with the Department of Taxes, to answer a number of the frequently asked questions posed by civil union couples related to insurance and taxation. (Appendix F.) The pamphlet should be available for distribution by town clerks and administrative agencies in January 2001.

There are a number of benefits commonly available to married couples that may not be available to civil union couples by operation of federal law. For example, the Internal Revenue Code provides special status to surviving spouses of individuals owning annuity contracts. The federal Defense of Marriage Act requires that the term “spouse” is construed to exclude a party to a civil union and, therefore, that benefit may not be available to a party to a civil union. The federal Employee Retirement Income Security Act of 1974 (ERISA) limits the ability of the state to ensure that group health insurance benefits afforded to married couples are equally available to civil union couples. Although certainty in these matters is not assured, according to BISHCA, ERISA would likely preempt any state law that mandated employers to enroll parties to a civil union in their health plans. Consequently, Act 91 requires that insurers offer an equivalent civil union benefit, but does not require that employers provide the benefit to their employees.

FINDING 7

As of January 1, 2001, Act 91 requires parties to a civil union be treated for state tax purposes as though they are married. The Tax Department (the Department) is responsible for ensuring that its statutes, regulations and forms are modified as necessary to carry out this clear legislative directive.

The Department worked with the Green Mountain Payroll Association, an association of payroll officers in the state, and identified issues which employers will confront in determining withholding tax in 2001. Until now, the income subject to withholding, an employee’s filing status, and the number of exemptions available to an employee were identical for state and federal taxes. For a party to a civil union, the state filing status will not be the same as the federal status, and the number of exemptions may change. The taxable income for Vermont may also change because of federal rules on fringe benefits which favor payments made for insurance of an employee’s spouse.

To address this issue, the Department created a form, W-4VT, to allow an employee to notify an employer that information on the federal W-4 form is not correct for Vermont tax purposes. The form will also be used by persons who would otherwise have insufficient Vermont withholding because they receive certain federal credits which do not pass through to Vermont. (Appendix G.) The department also prepared a technical bulletin, TB-23, which addresses the use of W-4VT and the issues of Vermont taxable income. (Appendix G.) The instructions to the Department’s 2001 withholding tables have been modified to instruct employers to use the “married” tables for parties to a civil union, and to refer employers to the technical bulletin.

The Department also worked with BISHCA on a publication covering tax and insurance issues relating to Act 91. Topics considered include tax treatment of an employer’s contribution to spouse coverage, medical flexible savings accounts, exemption from property transfer tax, the holding period for land gains tax purposes, and the "innocent spouse" rule in setoff debt collection. (Appendix G.)

FINDING 8

At this time, there is no information to indicate that Act 91 has had either a positive or negative impact on tourism. According to Steve Patterson, Deputy Secretary of the Agency of Commerce and Community Development, tourism numbers are on track with projections for the summer and fall of 2000. Rooms and meals tax are within the projected range, and occupancy rates for June through August are higher than expected.

The agency has received calls from out-of-state, both in support of and opposition to Act 91.

The Vermont Chamber of Commerce declined to take a position on Act 91. The Chamber’s opinion is that Act 91 has had no significant impact on employee benefit plans or the Vermont economy in general.

FINDING 9

In June 2000, a lawsuit was brought in Washington Superior Court challenging Act 91. The complaint named three groups of plaintiffs: four Vermont resident taxpayers, 10 members of the Vermont House of Representatives, and three Vermont town clerks. The defendants were Governor Howard Dean; Speaker of the House of Representatives, Rep. Michael Obuchowski; President Pro Tem of the Senate, Sen. Peter Shumlin; and Vermont Attorney General, William Sorrell.

The plaintiffs sought a declaration that Act 91 is void, and an injunction barring its enforcement, on the grounds that there was an allegedly illegal betting pool in connection with one of the preliminary House votes on Act 91 (H.847) which violated one of the Rules of the House of Representatives. An additional claim from town clerks asserted that being required under Act 91 to issue civil union licenses is a violation of their free exercise of religion under the Vermont Constitution.

On October 24, 2000, Judge Matthew Katz granted the defendants’ motion to dismiss the case. The court ruled that the plaintiffs lacked standing and articulated no claims upon which relief could be granted. (Appendix H.) On November 22, 2000, the plaintiffs filed an appeal of the motion to dismiss with the Vermont Supreme Court.

FINDING 10

Act 91 has had little impact on the Vermont courts this year, and the future impact is speculative. No civil union dissolutions have been filed in Family Court. Lee Suskin, Court Administrator, and Sally Fox, Director of Family Court Operations, testified that anticipating future impact of Act 91 on the courts is difficult, but it is reasonable to expect the civil union dissolution rate to mirror that of divorce in the state within 20 years. The divorce rate in Vermont is 50 percent.

The Court Administrator’s Office has redesigned forms on divorce and annulments to incorporate civil unions.

FINDING 11

In the November 2000 elections, two states, Nebraska and Nevada, passed ballot initiatives prohibiting recognition of same-sex relationships. Voters in Nebraska approved a constitutional amendment to provide that “only marriage between a man and a woman shall be valid or recognized in Nebraska and to provide further that the uniting of two persons of the same sex in a civil union, domestic partnership or other similar relationship shall not be valid or recognized in Nebraska.” The Nevada measure adds the state’s statutory definition of marriage as the union of a man and a woman to the Nevada Constitution. The Nevada measure must be submitted to the voters and approved again in 2002 to become effective.

VII. Commission’s Conclusion and Recommendation

The Commission has had six months in which to gather information about Act 91 in practice. The law is so new that effects of the law are difficult to ascertain at this juncture. However, based upon the information available, the Commission concludes that the implementation, operation and effect of Act 91 are consistent with the purpose of the act, which is “to provide eligible same-sex couples the opportunity to obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples as required by Chapter I, Article 7th of the Vermont Constitution.”

The Commission has no recommendations at this time for further state action.

Appendicies

The appendicies are not reproduced on-line. However, most of the documents available in the appendix of the report are available through the Civil Union Review Commission Web page. This includes insurance and tax information. For those documents that are not on-line, contact Legislative Council for copies.