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Joanna L. Grossman

The Vermont Legislature, Inventor of the "Civil Union," Grants Full Marriage Rights to Same-Sex Couples: Why It Decided Civil Unions Were Not Sufficient to Ensure Equality


Monday, April 13, 2009

Nearly a decade after making history as the first state to provide marriage-like rights to same-sex couples, Vermont has now made history again – as the first to grant full marriage rights via legislative enactment, without so much as a nudge from the state's judicial branch. On April 7, the state legislature overrode a gubernatorial veto to enact into law An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage, which will authorize same-sex couples to marry in Vermont beginning on September 1, 2009. Three other states currently permit (or, in the case of Iowa, will soon permit) same-sex couples to marry, but each has done so pursuant to a judicial interpretation of the state constitution rather than as a result of legislative action. (I wrote about Iowa's situation in a recent column.)

In this column, I'll trace the history of marriage rights for same-sex couples in Vermont and elsewhere, focusing as well on the likely motivation for the Vermont legislature's decision to move beyond civil unions.

The First Step: Civil Unions

In the first such victory for same-sex marriage advocates, the Vermont Supreme Court ruled in 1999, in Baker v. State, that it was a violation of the Common Benefits Clause of Vermont's Constitution to deny same-sex couples the right to marry or the right to enter into a substantially comparable, and legally-recognized, relationship. There is no exact parallel in the U.S. Constitution to Vermont's Common Benefits Clause, but earlier court precedents had read Vermont's clause to provide protections somewhat similar to those guaranteed by the federal Equal Protection Clause.

The court in Baker read the clause more broadly, though. Because the right being withheld was very significant and was being withheld without justification, the court found no basis for "the continued exclusion of same-sex couples from the benefits incident to a civil marriage license under Vermont law."

The court's decision gave the legislature a "reasonable" period of time to "craft an appropriate means of addressing this constitutional mandate." The Legislature responded in 2000 by passing An Act Relating to Civil Unions. The Vermont legislature defined a "civil union" – at the time, a novel legal status -- to be identical to marriage in every respect other than name. Scores of same-sex couples, a majority from other states, have since entered into Vermont civil unions. The status itself eventually caught on in other jurisdictions, as well. New Jersey and New Hampshire now offer civil unions, as did Connecticut before it moved to full marriage rights in 2008.

Some Advantages and Disadvantages of the Civil Union

The main advantage of the civil union is obvious: Same-sex couples, otherwise denied any form of legal recognition, gain immediate access to the myriad benefits of marriage. (The court in Baker counted over a thousand times in Vermont law where marital status was relevant to the allocation of rights and obligations.) In a world without same-sex marriage – an accurate description of the landscape in 1999 – civil unions represented a bold and important step for gay and lesbian couples. It also seems to be the case that the existence of civil unions has led to greater public support for the formal recognition of same-sex unions in general, and for same-sex marriage in particular.

The civil union brings disadvantages as well, though. First, because the name "marriage" is withheld from the status, the civil union consigns participants to a kind of second-class citizenship. The creation of a "separate but equal" status often visits stigma and insult on those who partake in it, and civil unions are no exception. For this reason, the high courts in Connecticut and California both ruled that their respective constitutions did not permit same-sex couples to be deprived of full marriage rights. (I discussed the Connecticut ruling in this earlier column, written with Linda McClain, and the California ruling in this one.) The New Jersey Supreme Court also expressly considered this issue, but ultimately held that civil unions were sufficient to honor the constitutional rights of same-sex couples, as I explained in another column. Same-sex marriage is still alive and well in Connecticut, but California voters overruled the court's decision by a referendum, Proposition 8, making same-sex marriage unconstitutional. (It is also alive in Massachusetts, which became the first American state to legalize same-sex marriage in 2004.)

Second, couples who entered into civil unions encountered practical difficulties stemming from the newness and the scattered out-of-state recognition of the status. As I wrote in a column in 2001, couples who came from out-of-state to enter civil unions in Vermont found that it was virtually impossible to divorce. They couldn't divorce in Vermont because only residents can file a petition for dissolution, and they generally couldn't divorce at home because their home states did not acknowledge the "civil union" as a legally-cognizable relationship that could be recognized or dissolved. Some individuals found a sympathetic court to dissolve the union based on "equitable principles," as I discussed in a 2003 column, but many couples continue to be stuck in civil unions because of this legal conundrum.

Civil-union couples have also encountered other types of problems with non-recognition of their new status. As I wrote in a previous column this year, commissions in Vermont and New Jersey that were charged with studying "civil unions" both concluded that the status operated imperfectly at best. Couples seeking to exercise basic rights inherent in the status – by seeking spousal insurance benefits, hospital visitation privileges, and so on – are often denied those benefits, even within their home states, based on misunderstanding of the status or hostility to it. When they travel out of state, particularly to jurisdictions that do not have their own civil-union regime, the non-recognition problems are worse.

After holding eight public hearings, the Vermont Commission on Family Recognition and Protection issued a report in July 2007 about the state's experience with civil unions. Although the Commission was not expressly asked to opine on whether the legislature should move to full marriage rights, it made a set of findings that strongly weighed in favor of extending full marriage rights to same-sex couples, such as: (1) witnesses in support of full marriage rights "far outnumbered" those opposed; (2) those holding civil union licenses encounter "legal and practical challenges" that deny them the "full promise" of the civil union law; (3) "the legal status of a civil union is generally foreign and difficult to explain" outside of Vermont; (4) there is "credible social science research supporting the conclusion that raising children in a gay or lesbian coupled family, per se, has no negative impacts on the well-being of children; and (5) a change in the law "would give access to less tangible incidents of marriage, including its terminology, and its social, cultural, and historical significance. . . . [P]roviding statutory access to marriage would be a clearer and more direct statement of full equality by the state, a statement of full inclusion of its gay and lesbian residents in the bundle of rights, obligations, protections, and responsibilities flowing from the status of civil marriage."

From Civil Unions to Same-Sex Marriage

As noted above, the Vermont legislature has now acted to grant full marriage rights to same-sex couples. The act defines marriage as "the legally recognized union of two people." It permits each party to a marriage to be designed as "bride," "groom," or "spouse," as he or she chooses. It leaves the existing marriage laws intact in most other respects, aside from stripping from 14- and 15-year-olds the right to marry with judicial consent. Civil unions contracted before the effective date of the marriage law will also continue to be recognized, though the status will cease to be available for new unions.

The Act also has provisions designed to protect "religious freedom." Toward that end, it expressly states that a clergyperson cannot be required to solemnize "any marriage," and the "refusal to do so shall not create any civil claim or cause of action." The law also provides special exemptions to religious organizations that, in effect, permit them to deny same-sex partners spousal benefits, to refuse to take other employment actions inconsistent with their "religious principles," and to refuse to allow the use of their space for same-sex wedding receptions.

It may turn out that Vermont offers a blueprint for the same-sex marriage landscape nationwide – as a legislature that accepted civil unions only begrudgingly ultimately comes full circle to grant full marriage rights of its own accord. Similar legislative proposals are brewing in at least a few states already. The national timeline will be slower, but full marriage rights may yet be on the horizon for same-sex couples everywhere.

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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