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


QUESTIONS AND ANSWERS ABOUT H.847
AS PASSED BY THE GENERAL ASSEMBLY


What is the Common Benefits Clause?

The Common Benefits Clause of the Vermont Constitution provides "[t]hat government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such a manner as shall be, by that community, judged most conducive to the public weal." Chapter I, Article 7th of the Vermont Constitution

What Did the Court Decide in Baker v. State?

The Supreme Court held that same-sex couples are entitled under the Vermont Constitution "to obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples."

The granting of these benefits and protections does not have to take the form of inclusion within the marriage laws, according to the Court, but may be done through "a parallel `domestic partnership' system or some equivalent statutory alternative" that conforms with "the constitutional imperative to afford all Vermonters the common benefit, protection, and security of the law."

Did the Court Issue a Mandate to the Legislature?

Under the Vermont Constitution, the Court is the appropriate governmental branch to interpret the constitution. When the Court held that same-sex couples were being denied their constitutional rights, the Court could have struck down the marriage statutes as unconstitutional or granted the plaintiffs a marriage license. However, the Court recognized that the Legislature is the appropriate branch of government to decide how to remedy the constitutional violation - either through a change in the marriage laws or a parallel system of domestic partnership. The Court preserved Legislative authority by providing the Legislature the opportunity to choose a remedy rather than having it imposed by the Court. The Legislature could have chosen not to act.

What Would Happen If the Legislature Did Not Act This Year?

If the Legislature did not to act this year, the plaintiffs in Baker could return to the Court and ask for the original remedy they sought - a marriage license. This is because the Court retained jurisdiction of the case, essentially putting it on hold while providing the Legislature an opportunity to address the constitutional violation through legislation.

The Court provided the Legislature a "reasonable period of time" in which to choose whether to address the constitutional violation through legislation. Just what constitutes a "reasonable period" is debatable and many legislators believed it was important to pass legislation this year in order not to lose the opportunity to act and have the Court impose its own remedy.

Is This Happening Too Quickly?

In Baker, the Court found that the plaintiffs and other same-sex couples are currently being denied their constitutional rights. Many in the Legislature believe that it is important to correct this in an expeditious, yet reasoned, manner.

The Legislature has spent a considerable amount of time studying the issue. The House Judiciary Committee put aside all other matters and worked for two months studying the issue, listening to witnesses and crafting legislation. The Senate Judiciary Committee put the same time and effort into examining the issue. The Committees heard from over 90 witnesses, including legal scholars, advocacy organizations, business leaders, administrative agencies, religious organizations and members of the public. Two large public hearings were held as well as a third on interactive television, giving over 300 Vermonters the opportunity to speak to the Committees. Thousands of people have attended at least one of the dozens of local meetings that have been held by legislators around the state to discuss the issue.

Delaying action could risk intervention by the Court with the likely result of marriage licenses issued to same-sex couples.

What About a Constitutional Amendment?

The Senate Judiciary Committee took testimony on proposals of constitutional amendment and considered the issue for three weeks. The Committee sent a proposal of constitutional amendment to the full Senate without recommendation on a vote of 5 to 1.

The Senate had the opportunity to debate the issue of a constitutional amendment and voted on three separate proposals of constitutional amendment.

The first proposal of constitutional amendment was a definition of marriage as the "legal union of one man and one woman" offered by Senator Canns. This amendment would not have changed the current interpretation of the definition of marriage but would have defined it in the constitution where it could only be changed through a constitutional amendment. It was a restatement of current law. It would have prohibited the General Assembly from enacting or the Supreme Court from imposing same-sex marriage. This amendment was rejected by a vote of 17 to 13.

The second proposal of amendment, offered by Senator Morrissey, stated that no provision in the constitution "shall be held to require that marriage be extended by the judiciary to any grouping of people other than one man and one woman." This amendment would have extinguished any constitutional argument by same-sex couples that they are entitled to a marriage license. However, the Legislature would not have been prohibited from granting same-sex marriage if they chose. This amendment was rejected by a vote of 18 to 12.

The stated purpose of the third proposal of amendment, originally offered by Senator Illuzzi, was to "clarify the definition of marriage to be the union of one man and one woman and [to] provide that the benefits and responsibilities of marriage need not be extended by the Legislature or the courts to any grouping of people other than one man and one woman." This amendment would have essentially carved out an exception to the common benefits clause by stating that the Vermont constitution does not require that all persons be treated equally with regard to marital benefits and protections. The Legisla-ture would have been able to grant such benefits and protections if it chose. This amendment was rejected by a vote of 21 to 9.

The next time-lock open window for introduction of proposals of amendment to the Constitution will occur in the 2003 biennial session.

Why Doesn't Vermont Pass a Reciprocal Beneficiaries Act Like Hawaii?

Hawaii's reciprocal beneficiaries law allows same-sex couples and blood-relatives to establish a relationship that provides them with a number of benefits that are usually reserved for spouses. However, the benefits provided to reciprocal beneficiaries are just a fraction of those provided to spouses. For example, reciprocal beneficiaries in Hawaii cannot avail themselves of post-divorce rights such as maintenance, child support and equitable distribution of property through the courts. For this reason, a reciprocal beneficiaries system would not meet the requirement in Baker that same-sex couples be afforded the same benefits and protections under Vermont law as married couples.

Why Are Civil Unions Limited to Non-Related Same-Sex Couples?

The Legislature focused on the issue that was before the Court in the Baker case - whether non-related same-sex couples were entitled to the same legal benefits and protections as married couples. The intent of the civil union legislation was to address a constitutional violation found by the Court. The Court did not indicate that other couples were being denied their constitutional rights.

Non-related opposite-sex couples currently have the option to marry in order to obtain the benefits and protections provided by law. Some couples may not wish to marry because of particular reasons, but want the benefits and protections of marriage. However, at this time there is no indication that there is a violation of these couple's constitutional rights because they currently have the opportunity to obtain marital benefits and protections.

Some have suggested that other couples, such as two sisters or a mother and son, should be entitled to spousal benefits. The Legislature responded to interest in reciprocal beneficiary relationships by permitting limited spousal benefits to two relatives who wish to enter such a relationship. However, testimony indicated that there was minimal interest in this type of relationship and that those who might establish such a relationship were divided on which benefits should apply.

One of the duties of the Civil Union Review Commission will be to study reciprocal beneficiaries relationships to determine if the benefits should be expanded and whether non-related opposite-sex couples over the age of 62 should be eligible.

Why Can't Same-Sex Couples Contract for Benefits?

Same-sex couples can contract for some benefits using documents such as durable power of attorney for health care, terminal care documents, wills, etc. However, many of the legal benefits and protections for spouses cannot be contracted through two private parties. Some of these benefits include the right to sue for wrongful death, benefit of confidential marital communications, exemption from the property transfer tax and eligibility for spouse abuse programs.

Also, in light of the Baker decision, requiring same-sex couples to contract for these benefits while not requiring married couples to do the same would be inherently unequal and unconstitutional. Many same-sex couple currently contract for a number of benefits in the hopes of mirroring a marital relationship. These contractual relationships fall far short of the legal benefits granted by marriage and cost such couples thousands of dollars in attorney's fees.

What About Traditional Marriage?

Marriage is the union of one man and one woman. This principle was declared by the Supreme Court in Baker and is affirmed by the findings section of H.847. The bill adds a statutory definition of marriage as "the legally recognized union of one man and one woman" as a clarification in both the "Marriage" chapter (chapter 1 of Title 15) and "Civil Union" chapter (chapter 23 of Title 15).

Same-sex marriage was rejected by a vote of 8 to 3 in the House Judiciary Committee and by a vote of 125 to 22 of the full House of Representatives. The Senate Judiciary Committee voted unanimously to reject same-sex marriage in favor of a civil union bill and the issue of same-sex marriage was never debated on the floor of the Senate.

Who May Establish a Civil Union?

Civil union status is available to two persons of the same sex who are not related to one another. Parties to the civil union must be at least 18 years old and competent to enter a contract. If a person is under guardianship, he or she must receive written consent of the guardian. To enter a civil union, a person may not already be a party to another civil union or a marriage.

How Do You Establish a Civil Union?

A couple may apply for a civil union license from its town clerk's office. If the couple meets the requirements for establishing a civil union and pays a $20 license fee, the clerk will issue the couple a civil union license. Within 60 days of issuance of the license, a couple must have the civil union certified by an authorized person. Persons authorized to certify a civil union include judges, justices of the peace and clergy.

Is a Town Clerk Required to Issue a Civil Union License?

If a couple meets the requirements for a civil union license, a town clerk must issue them a license. The mandatory language in the civil union chapter is the same as the mandatory language in the marriage chapter. (A town clerk could not refuse to issue a marriage license to a qualified couple for any reason.)

Government employees are required to perform the duties of their jobs despite their personal views. An assistant town clerk could perform the duties of a town clerk if the town clerk does not wish to issue the license.

Existing Vermont laws provide citizens with tools to require government officials, including town clerks, to perform their statutorily mandated duties:

Is a Justice of the Peace Required to Certify a Civil Union?

The bill provides that civil unions "may be certified" by certain government officials, including justices of the peace. This language is the same as that for solemnizing marriages. A justice of the peace who made a blanket refusal to certify civil unions, while solemnizing marriages, would likely violate Vermont's Fair Housing & Public Accommodations Act, which prohibits public accommodations from discriminating on the basis of sexual orientation. To the extent that the act gives justices of the peace discretion to refuse to certify individual civil unions, they would be required to base such discretionary decisions on permissible, not discriminatory, grounds.

Are Clergy Required to Certify a Civil Union?

No. Clergy may choose whether to certify a civil union according to the rules, customs or traditions of their religion, just as they currently choose whether to perform civil marriages.

The bill specifically states that it shall not be construed in a manner that would violate a person's religious freedom as guaranteed under the U.S. Constitution and the Vermont Constitution.

What Are the Benefits and Responsibilities of a Civil Union?

Parties to a civil union will have all the same benefits, protections and responsibilities under Vermont law as are granted to spouses in a marriage, and will be responsible for the support of one another to the same degree and in the same manner as prescribed under law for married persons.

The following is a non-exclusive list of some of the legal benefits, protections and responsibilities of spouses which will apply in like manner to parties to a civil union: (1) laws relating to title, tenure, descent and distribution, intestate succession, waiver of will, survivorship, or other incidents of the acquisition, ownership, or transfer, inter vivos or at death, of real or personal property, including eligibility to hold real and personal property as tenants by the entirety; (2) causes of action related to or dependent upon spousal status, including an action for wrongful death, emotional distress, loss of consortium, dramshop, or other torts or actions under contracts reciting, related to, or dependent upon spousal status; (3) probate law and procedure, including nonprobate transfer; (4) adoption law and procedure; (5) group insurance for state employees and continuing care contracts under; (6) spouse abuse programs; (7) prohibitions against discrimination based upon marital status; (8) victim's compensation rights; (9) workers' compensation benefits; (10) laws relating to emergency and nonemergency medical care and treatment, hospital visitation and notification, including the Patient's Bill of Rights and the Nursing Home Residents' Bill of Rights; (11) terminal care documents, and durable power of attorney for health care execution and revocation; (12) family leave benefits; (13) public assistance benefits under state law; (14) laws relating to taxes imposed by the state or a municipality; (15) laws relating to immunity from compelled testimony and the marital communication privilege; (16) the homestead rights of a surviving spouse and homestead property tax allowance; (17) laws relating to loans to veterans; (18) the definition of family farmer; (19) laws relating to the making, revoking and objecting to anatomical gifts by others; (20) state pay for military service; (21) application for absentee ballot; (22) family landowner rights to fish and hunt; (23) legal requirements for assignment of wages; and (24) affirmance of relationship.

What About Taxes?

For the purpose of state income taxes, parties to a civil union will be taxed in the same manner as married persons. Vermont estate taxes are treated differently because the state's estate taxes are not piggybacked on the federal estate taxes. The Vermont Department of Taxes testified that the fiscal impact on the state will be negligible.

Will Insurers and Employers Be Required to Offer Insurance Coverage to Parties to a Civil Union?

Insurers must make available dependent coverage to parties to a civil union that is equivalent to that provided to married persons. An individual or group health insurance policy which provides coverage for a spouse or family member of the insured shall also provide the equivalent coverage for a party to a civil union.

Employers are not required to provide coverage to parties to a civil union. Insurers will be required to offer equivalent coverage, but the employer then decides whether to purchase the group health insurance for its employees and which employees are eligible for the insurance.

How Will Civil Unions Affect Commerce?

Secretary of Commerce and Community Development Molly Lambert testified that she has no evidence to suggest that civil unions will affect commerce within the state either negatively or positively. She said that the agency has not received any complaints from businesses within Vermont or outside the state. The Vermont Chamber of Commerce did not take a position on the bill.

How Do You Terminate a Civil Union?

If the parties to a civil union wish to terminate the civil union, they would follow the same procedures as a married couple by filing for a dissolution of the civil union in family court. The family court will have jurisdiction over all matters related to the dissolution of the civil union, including child custody and support, and property division and maintenance.

Vermont currently requires a six-month residency period prior to filing for divorce. This requirement would apply in like manner to civil unions.

Will the Federal Government or Other States Recognize a Vermont Civil Union?

The federal Defense of Marriage Act (DOMA) specifically states that the federal government will not recognize a same-sex relationship treated like a marriage. This means that, under the current law, parties to a civil union will not be able to qualify for any of the benefits and protections contained in the 1049 federal laws affecting the spousal relationship.

It is unclear whether other states will recognize civil unions. Usually states provide full faith and credit to the laws and judgments of other states. However, DOMA specifically exempts states from having to recognize a same-sex relationship treated like a marriage. Over 30 states have "mini-DOMA" laws.

DOMA's constitutionality is questionable, however states may still refuse to recognize another state's laws or judgments if they violate the public policy of the state in which recognition is sought.

Who May Establish a Reciprocal Beneficiaries Relationship?

Two persons who are blood-relatives or related by adoption and prohibited from establishing a civil union or marriage with one another may establish a reciprocal beneficiaries relationship. Persons must be at least 18 years old and competent to enter a contract. They may not be a party to another reciprocal beneficiaries relationship, a civil union or a marriage. Each person must consent to the relationship without force, fraud or duress.

How Do You Establish a Reciprocal Beneficiaries Relationship?

Two persons who meet the criteria may establish a reciprocal beneficiaries relationship by presenting a signed, notarized declaration of a reciprocal beneficiaries relationship to the commissioner of health, and paying a filing fee.

What Are the Benefits and Responsibilities of a Reciprocal Beneficiaries Relationship?

Reciprocal beneficiaries may receive the benefits and protections, and be subject to the responsibilities that are granted to spouses in the following specific areas: (1) Hospital visitation and medical decision-making; (2) Decision-making relating to anatomical gifts; (3) Decision-making relating to disposition of remains; (4) Durable power of attorney for health care and terminal care documents; (5) Patient's bill of rights; (6) Nursing home patient's bill of rights; and (7) Abuse prevention.

How Do You Terminate a Reciprocal Beneficiaries Relationship?

Either party to a reciprocal beneficiaries relationship may terminate the relationship by filing a signed, notarized declaration with the commissioner. Within 60 days of the filing of the declaration and payment of the fee, the commissioner shall issue a certificate of termination of a reciprocal beneficiaries relationship to each party of the former relationship. If a party to a reciprocal beneficiaries relationship enters into a valid civil union or a marriage, the reciprocal beneficiary relationship shall terminate.