Filed in 1997 by three same-sex couples, Baker v. State came to a final ruling by the Vermont Supreme Court in December, 1999. The Court found that Vermont’s law did prevent same-sex couples from marrying, and was an unconstitutional denial of civil rights under Vermont’s Common Benefits clause. The court wrote, “none of the interests asserted by the State provides a reasonable and just basis for the continued exclusion of same-sex couples from the benefits incident to a civil marriage license under Vermont law.”

For many of us, it was a great day for equal rights, and a proud day to be a Vermonter. To our great disappointment however, the Court stayed the effect of its decision, failing to give same-sex couples any relief other than asking the legislature for remedial action. In her concurring and dissenting opinion, Justice Denise Johnson wrote that it is “the duty of courts to provide prompt relief for violations of individual civil rights.”

With the Baker decision, it was clear that we have moved far beyond the time when a mere domestic partnership system could be considered sufficient for either human needs, or the Constitutional mandate.

Besides the fact that any domestic partnership scheme can, at best, be a poor substitute for marriage — once the range of state, federal, and international benefits are considered — it would be an indignity, now that a right to equal treatment has been established by the state’s highest authority. It would be like Rosa Parks being satisfied with a law allowing her to sit in the middle of the bus.

Even though the Court appeared to allow for the possibility of a parallel track to marriage, “separate but equal” is never equal. Among the many benefits granted opposite-sex couples by the state is the beneficial title, ‘married.’ The Court’s own analysis requires this intangible benefit to be equally available to all couples, a term which requires a legal marriage license. Just as the Court found when invalidating the current law, the state has no valid interest in restricting the benefits of marriage exclusively to opposite-sex couples. The only reason now to make a separate parallel system is the maintenance of bigotry. What Chief Justice Warren wrote in the Brown v. Board of Education (1954) decision striking down “separate but equal” schools, applies equally to same-sex couples, since the VT Court found no legitimate basis for a separate classification:

“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. … We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”

Positive Steps

In January, 2000 I introduced the “Freedom to Marry” bill (H.694) with tripartisan sponsorship (2 Progressives, 2 Democrats, and 2 Republicans). The bill simply removes restrictions — based on biological sex — placed on one’s ability to marry the person of one’s choice. It also explicitly states that Vermont will recognize a marriage without regard to the sex of the partners.

We wanted to show how relatively simple it is to align the law with our common sense, basic human fairness, and the Vermont Constitution. We hope this is decision the House Judiciary Committee will make, once it studies the Baker case, federal cases involving the fundamental right to marry, and federal cases resolving that separate is never equal. In fact, it was inspiring drafting the remedy for what may be the last great instance of legal discrimination based solely on bigotry.

Despite a mostly hostile press and an oppressively powerful Catholic Church — which has received more attention than the many religious leaders who support equal rights — there is a growing momentum for genuine equal treatment, and a realization that domestic partnership status will not work. Dozens of lesbian and gay couples, and clergy of various faiths have given moving testimony at the public hearings. The House Judiciary Committee is doing a thorough job of hearing the issue, and the advocates and their representatives are doing a great job.

Unfortunately, the leadership of both major parties initially declared that there is a “consensus” for a domestic partnership bill. This is still largely what the press is reporting, despite the fact that if the public input has shown anything, it is that domestic partnership will satisfy almost no one. The Governor, who for years refused to state his position prior to the Court decision, said, at the start of the session, that the idea of same-sex marriage “makes me uncomfortable, the same as anybody else.” Many people where just as uncomfortable with the idea of allowing interracial marriage when it was mandated by the Supreme Court in Loving v. Virginia (1969).

So, even though we are confident that equal rights will ultimately prevail, just as with racial segregation, which took decades of public and court action — even after “separate but equal” was struck down — it may take several more years to achieve equality.