by susan murray & bell: rubinsnn lffllll BRIEFS So What Does Baker Mean? y now, almost everyone B is aware of the landmark December 20, 1999, rul- ing in Baker v. State. The Vermont Supreme Court unan- imously concluded that same- sex couples in Vermont are entitled, under the Vermont Constitution, “to obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples.” In reaching this conclusion, the Court rejected every justifi- cation offered by the state for treating same-sex couples dif- ferently. It concluded that “none of the interests asserted by the State provides a reason- able and just basis for the con- tinued exclusion of same-sex couples from the benefits inci- dent to a civil marriage license under Vermont law.” In so doing, the Court distin- ‘_ guished itself as this country’s ‘’ first state supreme court to rule unconstitutional laws provid- ing different-sex couples with a broad array of legal protec- tions unavailable to same-sex couples. The Court concluded that “extension of the Common Benefits Clause [of the Vermont Constitution] to acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal pro- tection and security for their avowed commitment to an inti- mate and lasting human rela- tionship is simply, when all is said and done, a recognition of our common humanity. The decision represents a great step forward for same- sex couples and their families in Vermont and beyond. What happens now? Rather than requiring the state to issue, civil marriage licenses to same-sex couples, the Court invited the Vermont Legislature to try to remedy the discrimination. It suggested the Legislature might have various response options, including extending marriage laws to include same-sex couples or creating some alternative to civil marriage. As of press time, the House Judiciary Committee is taking testimony from lawyers, schol- ars, and others regarding histo- ry and operation of marriage laws, impact of the Baker deci- sion, and options available to the Committee. Once it has crafted a bill, the full House of Representatives will likely consider it; once the full House has passed a bill, it will pass to the Senate, and the process will, to some extent, start again. What did the Court say about “registered partner- ship?” ’ There is a common misper- ception that the Court’s deci- sion endorsed some alternative to civil marriage, such as “reg- istered partnership.” This sim- ply isn’t true. The Court did not conclude same-sex couples are constitu- tionally entitled to a marriage license, but specifically did not conclude that they are not con- stitutionally entitled to a mar- riage license. It simply didn’t decide that issue, deferring it to another day. All the Court did conclude is that the plaintiffs are entitled under the Vermont Constitution to “the same ben- efits and protections afforded by Vermont law to married opposite-sex couples.” would a “registered part- nership” law satisfy the Court’s mandate? We believegnot. For many reasons, some practical and some symbolic, we believe the legal status of civil marriage is one of the benefits and protec- tions Vermont law affords to married opposite-sex couples. On the practical side, the legal status of “marriage” is a gateway not only to state law benefits, but to private bene- fits, such as corporate health insurance for spouses, benefits in other states, and federal ben- efits. On the “symbolic” side, the legal status of civil mar- riage is widely understood throughout the community and society in a way no alternative could be. How would private bene- tits differ it same-sex couples formed “regis- tered partnerships” instead of “marriages?” If same-sex couples were afforded the legal status of civil marriage, then, for exam- ple, companies offering health insurance to spouses of employees would likely auto- matically include same-sex spouses. If same-sex couples otherwise labeled, they would not automatically get those same benefits. Some have suggested the Legislature could simply pass a law requiring companies to treat same-sex couples the same as different-sex couples as far as benefits such as insur- ance. Unfortunately, federal law probably prevents the‘ Legislature from requiring employers to do any such thing. (This isn’t a “DOMA” issue; it involves a federal law commonly referred to as “ERISA.”) Would “registered part- nerships” be more or less portable to other states than “marriages?” Even if every state recog- nized the validity of a same- sex Vermont registered part- nership, that legal status would not likely carry much, if any, weight in another state. Presently, no state has any legal status or institution sub- stantially comparable to the scheme under consideration, so a valid Vermont registered partnership would not likely open the door to any benefits in any other state. A valid Vermont marriage between same-sex partners will undoubtedly face challenges in some states— thirty have passed laws saying they won’t recog- nize such marriages. On the other hand, some will likely follow the age-old rule that a marriage valid where celebrat- ed is valid everywhere. Plus, we believe other states’ laws refusing to recognize a valid marriage of same-sex partners are unconstitutional for a vari- ety of reasons— including the same reasons Vermont’s dis- crimination in marriage was recognized as unconstitutional. One thing is clear: whatever “portability” challenges validly married same-sex couples may face when they venture out of Vermont, they pale in compari- son to the alternatives’ com- plete lack of portability. February 2000 | Out in the Mountains [13 What about federal ben- elits? Many benefits of marriage flow from the federal govern- ment, not the state. If same- sex couples form “registered partnerships,” they clearly won’t be able to access feder- al benefits, since those are triggered by a valid state law marriage. If they form civil marriages, the federal gov- ernment will likely attempt to deny same-sex couples feder- al benefits in reliance on the so-called “Defense 1 of Marriage Act” — a law we believe unconstitutional for various reasons. What about the “sym- boHc”issues? For better or worse, and folks can and do debate it, the legal status of “marriage” has significance in our culture. If you doubt it, just consider the utter panic of those who oppose equal rights for same- sex couples at the thought that same-sex couples might be included in that legal institu- tion. Or think about how most heterosexual married couples would react if we told them that, from now on, they will be called “registered partners” and not married spouses. No alternative label carries with it that_social and cultural recog- nition and significance. No doubt there are cou- ples, gay and straight, who would rather not take on the baggage that comes with the term “marriage.” However, we believe that if gay and lesbian Vermonters are to be genuinely equal under Vermont’s laws, then we should have the same legal choices, and our families the same legal status, as our het- erosexual neighbors. Proponents of an alternative to civil marriage for same- sex couples in Vermont are anxious to maintain some legal distinction between same-sex couples and het- erosexual couples in order to avoid genuine acknowledg- ment of our equality. Just as Jim Crow laws were designed to perpetually stigmatize African Americans, we believe a “separate-but-equal” mar- riage law would be inherently unequal. We’ve been kept off the bus our whole lives, so the opportunity to climb on board is truly gratifying. However, that wouldn’t lessen the sting of being asked to sit in the back ofthat bus. V Susan Murray and Beth Robinson are attorneys at Langrock Sperry & Wool in. Middlebury, Vermont, whose practices include employment issues, family matters, estate planning, personal injury and worker is compensation cases, and general commercial and civil litigation. Ifyou'd like to see as cover a particular topic, please feel free to write OITM or call us at 388-6356. _ 802.660.8396 mediator Diane M. Felicio, Ph.D. Trying to work it out and getting nowhere? Conflict can be productive. separation - divorce - employee relations - consumer disputes V Laurie S. Rosenzweig * Attorney at Law {*8 South Main Street, P.O. Box 1455, Rutland, VT 05701 802-786-2251 e-mail: Sabu234@AOL.com Real Estate, Wills &Trusts, General Practice Employment and Spea'al Educmion Law, Civil Righb Law, Wills and Mediation, LGB1'Adapa’ons and Domestic Issues, . Personal Injury Law and other litigation . <°°‘ ' ‘ 0. we ‘ BLACKWOOD es, ‘fig , 9 ASSOCIATES, PC "0 _ at to rn ey: blackv.vd|aw@ao|-com fax: 802.353.0262