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2000

The Baker [Baker v. State, 744 A.2d 864 (Vt. 1999)]

Case, Civil Unions, and the Recognition of our
Common Humanity: An Introduction and a
Speculation
David L. Chambers
University of Michigan Law School, dcham@umich.edu

Available at: https://repository.law.umich.edu/articles/87

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Part of the Courts Commons, Family Law Commons, Legislation Commons, and the Sexuality
and the Law Commons

Recommended Citation
Chambers, David L. "The Baker [Baker v. State, 744 A.2d 864 (Vt. 1999)] Case, Civil Unions, and the Recognition of our Common
Humanity: An Introduction and a Speculation." Vt. L. Rev. 25, no. 1 (2000): 5-13.

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 THE BAKER CASE, CIVIL UNIONS, AND THE
RECOGNITION OF OUR COMMON HUMANITY: AN
INTRODUCTION AND A SPECULATION

David L. Chambers*

Every. Vermonter seems to know about two recent decisions of the

Vermont Supreme Court. In the first, the court struck down the system of
local financing of public schools.' Like similar decisions in many other states,
the school financing case led to a struggle in the legislature and difficulties for
legislators at election time. In the second and even more controversial
decision, the court reached an outcome that no other state supreme court had
ever reached: it held unconstitutional the state's marriage law on the ground
that it inappropriately denied the legal benefits of marriage to same-sex
couples.2 This decision, Baker v.State, also led to a legislative resolution that
infuriated many voters.
In his concurrence, Justice John Dooley of the Vermont Supreme Court
described Baker as "the most closely watched opinion in this Court's
history."3 The five articles and essays in this symposium concern Baker and
the civil union legislation that the Vermont Legislature adopted in response
to it. My goal, in this short introduction, is to whet your appetite for the
reading that awaits you. I also speculate on the answer to a question that is
more difficult than it appears: Why did the legislators and the governor who
displayed such positive attitudes toward gay people and gay relationships
refuse to call the new legal relationship that they created "marriage"?

I. THE BAKER DECISION AND THE LEGISLATURE'S RESPONSE

Baker v. State was filed in 1997 by a gay couple, Peter Harrigan and Stan
Baker, and two lesbian couples, Holly Puterbaugh and Lois Farnham, and
Stacy Jolles and Nina Beck, after they had been denied marriage licenses by
their town clerks. Beth Robinson and Susan Murray, partners in a
Middlebury, Vermont firm, and Mary Bonauto, of Gay and Lesbian Advocates
and Defenders in Boston, represented their clients without fee. The couples
claimed that their rights had been denied under the Vermont Constitution.
They relied primarily on a section of the Vermont Constitution, commonly
called the Common Benefits Clause, which provides: "That government is, or
ought to be, instituted for the common benefit, protection and security of the

* Wade H. McCree, Jr., Collegiate Professor, University of Michigan Law School; LL.B.
1965, Harvard Law School; A.B. 1962, Princeton University.
I. Brigham v. State, 166 Vt. 246, 268, 692 A.2d 384, 397 (1997).
2. Baker v.State, 10 Vt. L. Wk. 363, 363-64, 744 A.2d 864, 867 (1999).
3. Id. at 376, 744 A.2d at 889.

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 Vermont Law Review (Vol. 25:5

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."4
The lawyers for the three couples argued that the laws of marriage must
operate for the "common benefit" and "protection" of all couples-not just for
a selected subset. They drew on earlier cases in which the Vermont Supreme
Court had interpreted the Common Benefits Clause as a general protection
against unjust discrimination similar to the Equal Protection Clause of the
Fourteenth Amendment. At trial, the state offered seven justifications for
treating same-sex couples differently from opposite-sex couples. The judge,
ruling in December 1997, rejected six of these seven justifications. The court
nonetheless upheld Vermont's marriage statute on the ground that permitting
same-sex marriage would impair the public's perception of the link between
marriage and procreation and thus diminish men's and women's sense of
responsibility for child-rearing.5
The plaintiffs appealed to the Vermont Supreme Court, which heard oral
arguments in November 1998 and announced its decision in December 1999.
The five justices unanimously held unconstitutional the state's exclusion of
same-sex couples from the legal benefits of marriage. The majority opinion,
written by Chief Justice Jeffrey Amestoy, applied the Common Benefits
Clause and rejected all of the justifications for differing treatment offered by
the state. Amestoy found no empirical support or intuitive plausibility for the
claim that the state needed to restrict marriage to one man and one woman in
order to sustain the link between procreation and parental responsibility in the
public mind. He concluded his opinion with a passage that has been quoted
often since:

The extension of the Common Benefits Clause to acknowledge

plaintiffs as Vermonters who seek nothing more, nothing less, than
the legal protection and security for their avowed commitment to an
intimate and lasting human relationship is simply, when all is said
and done, a recognition of our common humanity.6

Despite this stirring language, the court did not enter an order directing
the state to begin issuing marriage licenses to gay and lesbian couples.
Instead, in an unusual disposition, the court held that while the state must
extend to same-sex couples all the legal benefits and responsibilities that
marriage offers to opposite-sex couples, it was free to do so either by

4. VT. CONST. ch. 1,art. 7.

5. Baker v. State, No. 51009-97 CnC (Vt. Super. Ct. Dec. 19, 1997).
6. Baker, 10 Vt. L.Wk. at 376, 744 A.2d at 889.

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20001 An Introduction and a Speculation

permitting gay people to "marry" or by creating a parallel institution with a

different label such as "domestic partnership." It then offered the legislature
a "reasonable time" to .choose between the permitted solutions, telling the
plaintiffs that they could return to the court for specific relief if the legislature
failed to act. Two justices concurred separately in the court's judgment.
Justice John Dooley agreed with the outcome but disagreed over the
appropriate standard for determining justifiable differing treatment under the
Common Benefits Clause, and Justice Denise Johnson argued that the court
should order the relief that the plaintiffs had demanded.
Within a few weeks of the court's decision, the legislature began its
work. Briefly stated, each chamber held committee hearings, with invited
witnesses. They also sponsored joint public hearings at which hundreds of
Vermonters spoke. Virtually every witness at the hearings advocated one of
two polar positions. Those who disliked the supreme court's decision
opposed giving any legal recognition to same-sex relationships. Most
opponents also advocated that the legislature begin the process for adding an
amendment to the Vermont Constitution that would explicitly limit marriage
to opposite-sex couples. By contrast, gay people and their supporters urged
that the legislature should simply include gay couples within the existing
marriage legislation. Virtually no one favored the adoption of the sort of
"domestic partnership" legislation invited in the supreme court's decision.
Ultimately, in a compromise that neither group preferred, the legislators
created a new institution called "civil unions," and poured into itall the rights,
benefits, and responsibilities of "marriage." The "civil union" bill extended
to same-sex couples the tax, inheritance, and other laws relating to married
persons. It also required couples entering into civil unions to formalize their
relationship before ajustice of the peace or a minister and to secure a divorce
before becoming legally free to enter a new union. After emotional debates
and close votes in the two chambers of the legislature, the bill was adopted on
April 26,2000, and signed into law by Governor Howard Dean the next day.'
At the time of its adoption, the "civil union" law came closer to treating
same-sex couples identically to opposite sex couples than the law in any other
state or any other country." The Act took effect on July 1, 2000, and, in its
first months, several hundred couples, many more from out of state than from
within, entered into civil unions. In the fall 2000 elections, civil unions
dominated the political discourse. Five Republicans in the House who had

7. An Act Relating to Civil Unions. 2000 Vt. Acts & Resolves 91 (codified at VT. STAT. ANN.
tit. IS, §§ 1201-1207 (Supp. 2000)).
8. A comprehensive review of the legal status of same-sex relationships in other states and
nations is related in Professor Johnson's article in this symposium. See Greg Johnson, Vermont Civil
Unions: The New Language ofMarriage, 25 VT. L. REV. 15 (2000).

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 Vermont Law Review [Vol. 25:5
voted for civil unions were defeated in the primaries by conservatives in their
own party. Many disgruntled Vermonters planted "Take Back Vermont "
signs in their front yards. They blamed recently arriving "flatlanders" for
civil unions, the new school financing law, and onerous environmental
legislation. Supporters of civil unions responded with their own signs urging
voters to "Keep Vermont Civil" and "Take Vermont Forward." On election
day, Howard Dean was re-elected as governor and the Democrats retained
control of the Senate, but Republican candidates for the House unseated many
Democrats who had voted for civil unions and the Republicans seized control
of the House by a wide majority.

II. THE SYMPOSIUM ARTICLES

This symposium contains five articles and essays that offer a rich mix of
history, law, and social policy and reveal some starkly different points of
view.

A. HistoricalContext

Greg Johnson relates some of the history of efforts in other states to

secure same-sex marriage prior to Baker. He tells of the early same-sex
marriage cases brought in the 1970s in Minnesota and Washington and of a
quite recent case in Alaska in which he participated. All of these cases
ultimately resulted in defeats for persons in same-sex relationships. Johnson
also describes the extension of marriage benefits to same-sex couples in
Canada, Scandinavia, and Western Europe. He then turns to Vermont and
reports the substantial grassroots political and legislative work conducted by
gay activists in Vermont during the fifteen years prior to the filing of Baker
that helped create the relatively positive political climate within which Baker
was filed.
Johnson, Michael Mello, and co-authors David Coolidge and William
Duncan also report on the repercussions of the Baker decision. Johnson
describes the responses of state agencies to questions from the legislature
about the probable fiscal impact of a civil union bill. Mello reports on the
public reactions to the Baker decision as reflected in letters to the editors in
Vermont newspapers. Coolidge and Duncan describe their efforts and the
efforts of others to persuade the House and Senate to initiate the process for
amending the state constitution to limit marriage to the union of one man and
one woman and to provide that neither the legislature nor the courts are
obliged to provide any of the rights and benefits of marriage to any other sort
of couple.

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2000] An Introduction and a Speculation

B. Legal Commentary

David Coolidge and William Duncan, in critiquing the Court's decision

and disposition, argue that thejustices impermissibly redefine "marriage" and
misconstrue the Common Benefits Clause. Michael Mello disagrees and
regards the Court's decision as a "straightforward application of the plain
language" of the Clause's terms. He also believes that the hostility to gay
people revealed in the post-decision behavior exhibited by many conservative
Vermonters provides after-the-fact support for the Court's decision to protect
gay men and lesbians as a "despised minority." Gil Kujovich also accepts the
Court's construction ofthe Common Benefits clause and believes that through
its remedy, the Court prudently avoided the question of whether same-sex
relationships should be labeled marriage. Quite unlike Coolidge and Duncan,
he believes that in referring the choice of remedies to the legislature the Court
engaged in an appropriate form of judicial restraint.
Barbara Cox disagrees with Coolidge, Duncan, and Kujovich. She
contends that the Court failed to go far enough and that granting the right to
"marry" was the only justifiable outcome. She believes that, given the social
status attached to the term "marriage," an institution with a different name
will necessarily be unequal and thus same-sex relationships will continue to
be regarded as socially inferior.

C. Social Policy

Finally, the authors also differ among themselves on the ultimate policy
question of whether Vermont (or any other state) ought to permit couples of
the same sex to marry. Coolidge and Duncan believe that marriage by its
inherent nature is limited to units of one man and one woman and that the
Vermont Constitution should be amended as soon as possible to reflect 'that
natural principle. Cox and Mello each believe that states ought to permit
same-sex couples to marry and that anything less is unsatisfactory. Johnson,
who has worked for gay marriage for many years, seems'content to give "civil
union" a try, hoping that the gay community can come to accept the term and
shape civil unions into their own distinctive institution.

In this brief preview, I have not done justice to the range and diversity
of the offerings in this symposium. Read them and discover for yourself.

III. A SPECULATION: WHY NOT "MARRIAGE"?

Despite the diversity of the articles here, one important point of view is
missing. None of the authors endorses the view of the civil union legislation

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 Vermont Law Review [Vol. 25:5
that was implicitly or explicitly held by most of the legislators who authored
the bill, by the governor who signed the bill into law, and probably by most
of the justices who participated in the Baker decision. That view is this: that
gay people are morally worthy and their relationships deserve great respect,
but that the relationships between two men or between two women differ from
the relationship between a man and a woman to a sufficient extent that it is
acceptable for the law to call thejoining of same-sex couples something other
than "marriage." "Civil union" is equal enough.
Consider Governor Howard Dean. On the day after the supreme court's
decision, he pledged that he would work hard to carry out the court's
mandate, but also acknowledged that same-sex marriage "makes me
uncomfortable, the same as anybody else."9 Just as he promised, he pressed
reluctant Democratic legislators to vote for the civil union bill and signed the
bill into law. After the signing, he was asked whether "civil union" wasn't
simply a form of "separate but equal" treatment for gay people that, like
segregated schools for African-American children, was doomed to be
"unequal" in fact. Dean responded that he preferred to think of civil unions
as "different but equal."'" Unfortunately, he did not explain how same and
opposite-sex relationships were relevantly different. Compare an analogous
moment in legal history frequently invoked in the Vermont debates, the
ending of legal barriers to cross-racial marriage in the United States. No state
that repealed its miscegenation law went only part way and named black-
white marriages something other than marriage. And, if they had, one can
well imagine the hostile reaction from black Americans and liberal whites.
Thus, the question I want to explore for a few paragraphs is: Why not
"marriage"? What were the governor and legislators thinking? One possible
explanation is that they really did accept same-sex unions as identical to
opposite-sex unions in every relevant respect, but concluded that, if they
called same-sex unions "marriage," they would be unable to muster enough
votes within the House or Senate or would incite even more anger in their
traditional constituents. That pragmatic stance was certainly the position of
Representative Bill Lippert, a gay legislator and Vice-Chair of the House
Judiciary Committee, who favored "marriage" but was one of the civil union
bill's most effective advocates.
Many of Lippert's colleagues who supported the civil union bill no doubt
feared being perceived by voters as endorsing homosexual behavior, which
is, of course, precisely what they were accused of anyway by Vermont's

9. Carey Goldberg, Vermont High Court Backs Rights ofSame-Sex Couples, N.Y. TIMES, Dec.
21, 1999, at Al.
10. Editorial, GayRights Ping Pong?, RTLAND HERALD, Dec. 26, 1999, at C2 (quoting Vermont
Governor Howard Dean).

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2000] An Introduction and a Speculation

Catholic bishop and many other conservatives. Every time civil-rights

legislation is proposed in the United States to deal with discrimination on the
basis of sexual orientation, the opponents maintain that it will place an
official stamp of approval on homosexuality." The proponents respond that
no endorsement is implied'in simply assuring equal treatment. In the Vermont
context, the legislators surely hoped that by withholding the blessing of the
label "marriage" they could avoid appearing to endorse homosexuality 2
This explanation may be accurate, but it assumes that, if they had voted
their consciences, the legislators would simply have included same-sex
couples within the marriage statute. My own hunch is that the actual
explanation is more complex, that Governor Dean was honest when he said
that, like anyone else, he was troubled by "gay-marriage," and that many of
the legislators shared his sentiments.
One place to look for a more complex explanation is within the language
of the civil union law itself. In one of the legislative "findings" in the first
section, the Act seems to be trying to explain the use of a different name:

*(10) .. .Changes in the way significant legal relationships are

established under the constitution should be approached carefully,
combining respect for the community and cultural institutions most
affected with a commitment to the constitutional rights involved.
Approaching the granting of benefits and privileges to same sex
couples through a system of civil unions will provide due respect
for tradition and long-standing social institutions, and will permit
adjustment as unanticipated consequences or unmet needs arise. 3

This explanation is more than a little opaque. It suggests that calling

same-sex relationships "civil unions" is needed in order to pay due respect for
the institution of marriage. Conversely and more harshly, it suggests that to
call same-sex unions "marriage" would be disrespectful to the institution of
marriage. Unfortunately, however, it doesn't explain why. Still, it does
provide a clue that I'd like to pursue. Here is my own brief attempt to provide
the missing explanation.
"Marriage" really is, as the legislature found, "a long-standing social
institution." Along with burial rituals, it may well be the world's oldest and
most geographically universal social institution. Every society has a term

II. See Chai R. Feldblum, The Federal Gay Rights Bill: From Bella to ENDA, in CREATING
CHANGE: SEXUALITY, PUBLIC POLICY, ANDCIVIL RIGHTs 149, 155, 185-187 (John R. D'Emilio et al. eds.,
2000).
12. In a similar move, the legislature went out of its way to make clear that churches could
withhold their endorsement of gay relationships by refusing to perform 'civil unions."
13. 2000 Vt. Acts & Resolves 91 §1(10) (legislative findings).

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 Vermont Law Review [Vol. 25:5
equivalent to "marriage" that is reserved for its most prized form of sexual
union. Thus, it is hardly surprising that, without knowing quite why,
heterosexuals feel an urge to keep the term to themselves (and hardly
surprising that gay men and lesbians want so badly to have the term apply to
them).
My guess is that many of them (and Howard Dean) really do think that
gay relationships are different from theirs and, though worthy, not quite equal.
First, as was said frequently by conservatives in the hearings, marriage is in
part about children and two people of the same sex simply cannot produce a
child biologically. I suspect that this obstacle of biology, invoked often by
conservatives, also affects the unconscious attitudes of many liberal
legislators, even though they are aware that large numbers of gay couples are
raising children and despite the fact that the legislators had recently enacted
a statute that facilitates the adoption of children by gay partners. 4 Second,
marriage is in part about sexual pleasure, and gay men and lesbians have sex
in ways that most heterosexuals find quite uncomfortable to think about.
And, third, marriage is about gender roles that most liberals consciously reject
but unconsciously embrace. Even in this era of working wives and
companionate marriages, most American men, including most liberal men,
seek out as spouses women who are not only younger, and shorter, but also
earn no more than they, and who possess equal or less education. Most liberal
women seek as partners older, taller, higher earning men. Good wives still
raise the children. Good husbands still bring home most of the bacon. When
two gay men or two lesbians are seen living outside of these roles, many
decent heterosexuals are "uncomfortable" for reasons they have difficulty
expressing.
Still, I cannot attribute the choice of a term other than marriage solely to
the discomfort of liberal heterosexual legislators. They were not the only
ones who accepted relegating gay people to a "different but equal" institution.
Liberal homosexual Vermonters in large numbers, including me, comfortably
accepted the relegation. Of course, we would have preferred "marriage," but
when it became clear that we weren't going to get it, only a few of us
experienced "civil union" as an affront. Many of us, as pragmatists, were
delighted to take what we could get for now, especially from a legislature that
had demonstrated such good will. Nonetheless, I believe that some part of our
comfort with "civil union" has a deeper explanation. It is that just as
heterosexuals see themselves as different from us, we too see ourselves as
different from them. Even the most self-a.'sured among us grew up feeling
different in some essential way from our parents and from most of our peers.

14. See 1996 Acts & Resolves 161 § 1-102 (codified at VT. STAT. ANN. tit. 15A, § 1-102 (Supp.
2000)).

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2000] An Introductionand a Speculation 13

I think that it is this acceptance-of difference that has made so many of us

comfortable for over a decade with the entire domestic partnership movement,
which has brought health benefits to thousands of us and our partners under
a different rubric than marriage. The irony.in the end is that our comfort
provided comfort to the liberal legislators of Vermont when they named our
marriages something else.

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