Courts and Same-Sex Marriage
in the United States: Vermont
SHORTLY AFTER the Hawaii Supreme Court declared that the people of Hawaii had overruled its decision, the Supreme Court of Vermont handed down another landmark same-sex marriage case. In Baker v. State of Vermont, the court maintained that limiting marriage only to opposite-sex couples violated the Vermont Constitution, and the courtcompelled the legislaturetoremedy the situation.1 This chapter examines this litigation, the political response that resulted in significant policy change in the state, and policy change that would have been unlikely in the absence of litigation.
In the decade preceding the litigation, the issue of gay rights had been a prominent topic in Vermont politics. In 1986, a proposed equal rights amendment was narrowly defeated, largely due to concerns that the amendment would legalize same-sex marriage.2 Hate crime and antidiscrimination legislation was passed, with vocal antigay opposition (a dynamic that would also play in the debate over civil unions legislation), in the early 1990s.3 A combination of a state high court decision and legislation extended adoption rights to same-sex couples.4 Emboldened by these successes, activists broadened their fight. As David Moats describes it: “During the 1980s, the gay and lesbian community had been fighting for mainly negative freedom—freedom from violence and discrimination. During the 1990s, the community would begin to fight for positive freedom—freedom to live a life of their choosing, to form families, to raise children, to marry.”5 This required a turn to litigation.
Unlike the original litigation in Hawaii, the Vermont litigation was a coordinated effort influenced by the events in Hawaii. Beth Robinson and Susan Murray, two lawyers who were friends and worked at the same law firm, founded a political group in 1995, the Freedom to Marry Taskforce. They had been discussing a lawsuit for several years, but were emboldened to act by the events of the mid1990s. In 1995 Murray and Robinson declined to assist a gay couple file a same-sex marriage lawsuit. In Robinson's words, “We felt the karma wasn't right.”6 Instead, they organized chapters around the state to begin laying the political groundwork to support the eventual litigation, including producing a video with same-sex couples describing their relationships and why they wishedtomarry.7 Although the political groundwork was being laid, however, it was clearly the litigation that was central to the activists' efforts. No effort was made to address the issue legislatively; the litigation would be the battering ram, rather than pure deliberation and debate. Indeed, when the legislature inadvertently addressed the same-sex marriage issue early in 1997, Robinson and Murray urged legislators not to pursue the issue.