STATE OF VERMONT
HOUSE OF REPRESENTATIVES
115 STATE STREET
MONTPELIER, VT
05633-5301
To: House Judiciary Committee Members
From: Thomas A. Little, Chair
Date: January 4, 2000
Re: Baker v. State
1. Introduction.As you know, on December 20, 1999, the Vermont Supreme Court issued its decision in Baker v. State, ruling that the Vermont marriage statutes unconstitutionally discriminate against same-sex couples who seek to establish a permanent, stable family relationship. The decision defers to the General Assembly to fashion a remedy to the unconstitutionality, either by amending the marriage statutes, or in some other manner that achieves the equality of treatment under the law required by the Constitution.
The Court has retained jurisdiction of the case, in order to be able to issue a further ruling on the marriage statutes if the General Assembly fails to act in a timely fashion. The Court's decision contemplates that the General Assembly will proceed orderly and expeditiously, but gives no specific deadline for legislative action.
It appears that the General Assembly's response to Baker v. State will start in the House, and that the House Judiciary Committee will bear the primary responsibility of conducting the hearings, taking the testimony, conducting the research, and drafting the language necessary to prepare a bill for consideration by the House. I ask your assistance, advice, good judgment and team work in this important, perhaps monumental task. With your full participation, the Committee can, and will, present the House with a fair and sound Committee bill, one that is well researched and well written.
2. Scope and Structure of the Bill.
The Supreme Court found that our existing marriage statutes apply only to a union between a man and a woman. The Court ruled that the Vermont Constitution requires the same or parallel treatment for couples of the same gender. The decision held that the Vermont Constitution mandates that the stream of rights, privileges and benefits that flows from the status of civil marriage must be made available to all citizens, without discriminating on the basis of sexual orientation.
In view of the intense feelings and concerns that will be raised by and in our work on Baker v. State, my goal is to not only keep the Committee's "eye" on the Constitutional principles, but also to build consensus and avoid divisiveness within the General Assembly and throughout the state. For these and other reasons, I propose that the Committee commence its work with a careful analysis of the decision, including each of the options suggested by the Court for compliance with the Constitution. There appears to be two options: (i) amend the marriage statutes, or (ii) enact a broad domestic partnership model into statute. The first option would expand the marriage statutes to include same-sex unions, and would entitle those citizens to the benefits and privileges, and subject them to the legal obligations and responsibilities, of civil marriage under Vermont law. The second option would, to paraphrase the Court's opinion (at page 39), establish an alternative legal status to marriage for same-sex couples, impose similar formal requirements and limitations, create a parallel licensing or registration scheme, and extend substantially all of the same rights and obligations provided by law to married couples.
During the first two weeks of the Committee's work on Baker v. State, I propose that we examine the Court's decision, and the three opinions, in detail and with the assistance of a variety of legal scholars and others trained in legal analysis. During this period, we would also study our existing marriage laws, both statutory and common law. When the Committee has a firm grounding in the Court's decision and the underlying Constitutional and marriage law, and has the benefit of two or more weeks of testimony, the Committee will be in a position to make an informed decision about which basic option, or model, it will proceed with. I realize there will be great pressure on the Committee to make this decision sooner rather than later; I also expect each of you has an opinion on how the bill should be structured. Please do your best to approach our study of the applicable law with a clear and open mind about the final form of the bill. Also, remember the General Assembly has its own, independent duty under our Constitution to enact legislation that in our judgment is faithful to our Constitution and to the principles of fairness and equality declared in the Common Benefits Clause.
3. Timetable for the Committee's Work.
I propose that the Committee complete its work on S.200 (the "fingerprint/criminal history check" bill) by noon on Friday, January 7. This will give us an opportunity to reestablish our working rhythm as a committee, and to discuss other Committee work and priorities. I suggest that we start work on Baker v. State on Tuesday, January 11. By tomorrow, I hope to have a schedule of testimony and hearings for the first two weeks of this effort. The schedule will include presentations from a variety of persons trained in the law, and also persons trained and experienced in identifying the impacts and implications of Baker v. State on critical areas of the public and private sectors. Time will be made available to Vermonters who wish to make their views known through one or more public hearings included in the schedule. While there will be the usual variables in our schedule, I believe a bill can be ready for the House floor by February 23. I stress, however, that after 3-5 weeks of work, the Committee may find the complexity and impact of the legislation requires more time than my proposal allows. In that event, the Committee will use its best judgment to determine the proper way to proceed.
This may be an aggressive schedule, but in my view it is critical that the General Assembly make every effort to enact a solid and comprehensive response to Baker v. State in the 2000 session. While this timetable may not be mandated by the Court's decision, I firmly believe the work can be accomplished this year in a thorough, intelligent and fair manner, if we and others bear down with hard work and exert strong leadership. This work must be done right the first time, and more harm than good will follow a hastily constructed bill. Accordingly, the decision on how to proceed will remain with the Committee, and I will remain open to the possibility that the scope of the task requires work beyond the 2000 session. However, even in such an event, I believe the right thing to do would involve enacting significant and substantial legislation this year.
4. Other Work of the Committee.
We have approximately seventy bills pending in our Committee, and many of them deserve our attention this session. In order to handle both the Baker v. State legislation and the other work of the Committee, we will need to develop some innovations in our daily and weekly Committee work habits, and productive and dynamic relationships with other House Committees. I will try to coach as much work and focus from each of you as is reasonably possible, consistent with your other legislative, family and work responsibilities.
5. Conclusion.
The foregoing proposals are ambitious; I will rely on your good judgment to tell me if they are unreasonable. I hope that you will join me with dedication and enthusiasm to help write the next chapter in extending the benefits and responsibilities of our Constitution to all Vermonters.