To: Freedom to Marry Allies
From: Mary Bonauto, co-counsel in Baker v. State of Vermont
Re: Update #4
Date: March 8, 2000

Thanks to everyone -- everywhere -- for your continued encouragement and support.

Background

On Dec. 20, 1999, the Vermont Supreme Court unanimously ruled in Baker v. State of Vermont that same-sex couples in Vermont are entitled to the protections and benefits provided through state law to opposite-sex married couples. This historic decision marks the first time a state supreme court has moved toward comprehensive equality and citizenship rights for gay and lesbian people. The Court did not decide whether same-sex couples are constitutionally entitled to civil marriage licenses. Instead, the Court referred the matter to the state legislature to craft a remedy for same-sex couples. The Court gave the Legislature "a reasonable time" in which to complete its work and also kept jurisdiction over the case in the event the Legislature fails or is unable to fulfill the Court's ruling. On February 9, 2000, the House Judiciary Cte., after hearing weeks of testimony, opted to move forward with an alternative to civil marriage for same-sex couples.

Legislative Action to Date

On February 29, 2000, the House Judiciary Committee approved of "An Act Relating to Civil Unions," now known as House Bill 847. The Committee voted 10-1 in favor of the proposed Act, with the lone dissenter favoring marriage instead. The bill is not yet law, with upcoming votes on this bill as well as many hostile amendments in the full House of Representatives and the Vermont Senate. Governor Howard Dean has already indicated his support for the measure. The bill is available at www.leg.state.vt.us/docs/2000/bills/intro/h-847.htm

Details on "An Act Relating to Civil Unions"

Summary: If passed, the bill would create a new legal status called a "civil union," which would be available to same-sex partners only. As set out in more detail below, the requirements for entering a civil union are virtually identical to the marriage licensing and certification process, and civil unions are dissolved through the divorce laws just like marriages. The rights extended are comprehensive: "Parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in marriage." Sec. 3. To give just a few examples, parties to a civil union will be legal next-of-kin for purposes of inheritance, hospital visitation and medical decision-making, and will be able to take unpaid leave from work to care for a partner who is ill (or the partner's ill parent). Gay and lesbian couples will be able to transfer property to one another without paying property transfer taxes, and can own property in a way which is secure from the individual debts of either partner. State taxes on married couples and parties to a civil union will be the same.

Findings and Purpose: The Legislative Findings and Purpose sections of the bill discuss the importance to the State of supporting families. They provide in part: "The State has a strong interest in promoting stable and lasting families, including families based upon a same-sex couple. Without the legal protections, benefits and responsibilities associated with civil marriage, same-sex couples suffer numerous obstacles and hardships."  Section 1 (Findings), para. 9-10. The bill then goes on to describe the core purpose of the Act:

The purpose of this act is to provide eligible same-sex couples the opportunity to receive the legal benefits and protections and be subject to the legal responsibilities that flow from civil marriage. Civil unions provide a legal status with the attributes and effects of civil marriage, so that state law conforms to the requirements of the Common Benefits Clause of the Vermont Constitution. Section 2 (Purpose).

Entrance Requirements for A Civil Union Under H847: If passed in its present form, the licensing scheme for a civil union closely parallels the licensing scheme for marriage. A person who wishes to enter into a civil union would make an application to his or her town clerk and receives a license in the same way a person applies for a marriage license. The same people who are authorized to solemnize a marriage are authorized to certify a civil union (judges, justices of the peace, and (willing) members of the clergy.) Once certified, a person then has a "Civil Union Certificate" instead of a "Marriage Certificate." As with marriages, persons cannot enter a civil union with a close relative, and only same-sex couples may enter a civil union.  Sections 3, 5 (Civil Unions, Records & Licenses).

Legal Protections Provided to Parties in a Civil Union: If passed, parties to a civil union have the same rights and responsibilities under Vermont law as those afforded to spouses in a marriage. Any time Vermont law uses the terms "spouse" or "family," among others, those terms would include a "party to a civil union." Discrimination or different treatment of parties in a civil union would be considered discrimination based on both sexual orientation and marital status. There are broad non-discrimination prohibitions with respect to insurance that endeavor to ensure the equal treatment of spouses and parties to a civil union. The bill also makes efforts to equalize the tax treatment of spouses and parties to a civil union. Section 3 (Civil Unions).

This bill attempts to provide same-sex couples the protection of all Vermont law. If this bill passes in Vermont in this form, it provides a system of recognizing and strengthening glb families and a model for other states. On the other hand, the bill is not marriage. The status of parties to a civil union will be unclear in states other than Vermont, and there will be no access to the 1,049 protections for married couples under federal law. Nonetheless, those who have been working closely and hard on the marriage issue in Vermont have publicly stated that this is a compromise bill but one which they will support absent offensive amendments.

Reciprocal Beneficiaries ("RB's"): In addition, the bill provides several new protections for blood relatives who can sign a notarized declaration to become "reciprocal beneficiaries." These are people such as brothers and sisters, or parents and children who are not appropriate for marriage or civil unions because they are related by blood. Blood relatives already have many legal protections, such as inheritance rights, because they are already legally recognized family members. This bill would supplement rights they already have in the areas of medical decision making and death and disability. Unlike a civil union which must be dissolved by the divorce laws, an RB relationship may be dissolved unilaterally by the filing of a notice of dissolution, or upon entry by one RB into a civil union or marriage.

Review Commission: Finally, the bill provides for a review commission to study how the new law works out over the next three years, with the power to make recommendations to the legislature and to support education in the schools about the powerful role of the Common Benefits Clause in Vermont political life.

Upcoming Legislative Action

Recent polls show that the overwhelming majority of Vermonters want the Legislature to take action on a bill this year. Only 22% of Vermonters want the Legislature to wait and study the issue further. The House Judiciary Committee has focused almost exclusively on this bill since the beginning of this session on January 4, 2000, and has taken in a great deal of testimony.  They have had ample time to develop a solid compromise bill.

The full House of Representatives is due to debate the bill during the week of March 13. Assuming H847 passes in the House, the bill will go to the Senate, which will then likely debate the measure beginning the week of March 20. Many amendments are lying in wait for H847, so it is too early to predict the outcome of the legislative process. If the House and Senate pass different versions of the bill, then a conference committee will work out a version of the bill which will then be subject to floor votes in both chambers. The Legislature is due to adjourn for the year by the end of April.

A constitutional amendment is extremely unlikely for a variety of reasons.  First, a solid majority of Vermonters (55%) support the legislature doing something this year -- either marriage or domestic partnership. More specifically, according to recent polls, fewer than 30% of the people of Vermont support amending the constitution. The constitutional amendment process is also extremely long and difficult, and Vermonters want the legislature to take action on this issue now and move on to other business.

Vermont Town Meeting Day

Town Meeting Day, a venerable New England tradition, was held in Vermont on March 7, 2000. Around 50 towns (of 246 total) had something on their ballots about the marriage issue. In each of these towns, a small minority of eligible voters (roughly 15-20%) turned out, so the samples are hardly representative of the towns, let alone the State as a whole. None of the towns that voted were supportive of marriage, although several were supportive of domestic partnership. By contrast, recent and reputable polls conducted by statewide newspapers show a majority of Vermonters supporting either marriage or some "domestic partnership" alternative to marriage.

Marriage-Related Activity in Other States Does Not Affect Vermont

Most Americans are coming to realize that same-sex couples need access to the same protections and responsibilities for their families as are provided to married families. Some would prefer to call that system of protections and supports something other than "marriage." Even so, together with those who favoring marriage, there is clear support for the government to be fair to families of gay people.

Stated another way, the voters in California were simply asked the wrong question on March 7, 2000. The question of whether marriage should be between one man and one woman sheds no light on what voters think about what is fair for families. Well meaning people may vote to protect marriage as they see and understand it without change but that should not be understood to mean that they would foreclose the rights of gay and lesbian families to receive the same comprehensive benefits, rights and protections of marriage, as we have seen in Vermont.

What You Can Do

1. Elected representatives listen to their constituents. Please DO talk to your old college roommates, your old friends from camp, whoever you know from the State of Vermont. Talk to them about this issue. Ask them to get in touch with the Vt. Freedom to Marry Action Cte. Ask them to call their elected officials and to support H847. You can contact the Vermont Freedom to Marry Action Committee at P.O. Box 1038, Middlebury, VT 05753. An email contact is vfmac@sover.net and the website is www.vtmarriageaction.org.

2. We need your help. DO support the VT Freedom to Marry Action Cte. financially. Contributions are not tax deductible (see address above).  Please also support GLAD, co-counsel on the case, because there is still much legal work to do in evaluating the viability and constitutionality of any legislative proposals. GLAD is at 294 Washington St., Suite 740, Boston, MA 02108 and contributions are tax deductible.

3. DO remember that you can help Vermont, and all of us, by reaching out to the public policy makers in your state. As Frederick Douglass said many years ago, "If there is no struggle, there is no progress." If you need help contacting people in your own state, contact marriage@lambdalegal.org or (212) 809-8585. Please do what you can to support equality at home.

Mary L. Bonauto, Esq.
Gay & Lesbian Advocates & Defenders
294 Washington St., Suite 740
Boston, MA 02108-4608
(617) 426-1350
fax (617) 426-3594
email: gladlaw@glad.org