In December 1999, the Vermont Supreme Court issued its decision in Baker v. State, (1) which held that the Vermont marriage law allowing only male-female couples to marry violated the "Common Benefits" Clause of the state constitution, and that same-sex couples must either be allowed to enter into marriage, or some alternative union with legal status and benefits substantially equivalent to marriage. (2) The decision led to the first civil union law in the nation, and eventually to the legalization of same-sex marriage in Vermont. In the years immediately following the decision, (3) and through to today, (4) the Baker decision has received much attention, primarily for its holding that same-sex couples are entitled to the same legal benefits relative to marriage as opposite-sex couples, and also for its historical importance within the larger debate over marriage equality.
As both state and federal courts consider questions of marriage equality, the constitutionality of the Defense of Marriage Act, and other legal rights of gay and lesbian citizens, it is an opportune time to revisit the Baker decision and to consider what relevance that decision could have to current cases. In this essay, I humbly suggest that the most under-appreciated opinion in Baker is Justice Denise Johnson's concurring opinion in which she unequivocally states that denying same sex couples the right to marry is a "straightforward case of sex discrimination." (5) While there has been a great deal of scholarly discussion that discrimination on the basis of sexual orientation is, at its core, discrimination on the basis of gender, this theory has had little impact on courts considering marriage equality.
This essay examines the Baker decision with a focus on Justice Johnson's opinion, and explores the current dialogue about the relationship between gender and sexual orientation discrimination. It concludes with a sense that moving forward to issues beyond same-sex marriage, such as sexual identity discrimination and workplace rights, articulating such discrimination within a gendered framework, as well as frameworks of sexual orientation and human rights, might add both depth and dimension to our current understandings of the legal barriers to self-actualization, as we celebrate the 100th anniversary of International Women's Day.
II. BAKER V. STATE
The Baker case began when three Vermont couples who were denied marriage licenses filed a lawsuit in state court alleging both statutory and constitutional violations. (6) As Beth Robinson, lead counsel in Baker has explained, the legal strategy in the case was to get the court to apply a heightened level of scrutiny under the Common Benefits clause, which is the Vermont Constitution's analog to the Equal Protection clause. (7) To that end, the plaintiffs made essentially three arguments: that heightened scrutiny should apply because the marriage law discriminated on the basis of the protected classification of sex; the law discriminated on the basis of the prohibited classification of sexual orientation, and the law discriminated with respect to a fundamental right. (8) Even absent heightened scrutiny, the plaintiffs argued that the state's primary justification for limiting marriage to only opposite-sex couples--the biological begetting of children--wasn't rational, even when one considered that many married couples do not or cannot reproduce, and that the state's interest in providing a stable home to those children was not at all furthered by forbidding same-sex couples who already had children to legally wed.
The state argued that under a rational basis review, the law was justified. (9) The principle purpose that the state advanced in justifying the statute was the government's interest in "furthering the link between procreation and child-rearing." (10) Vermont further argued that "since same-sex couples cannot conceive a child on their own, state-sanctioned same-sex unions 'could be seen by the Legislature to separate further the connection between procreation and parental responsibilities for raising children. …