Baker v. State (98-032)

[Filed 20-Dec-1999]
 

ENTRY ORDER

SUPREME COURT DOCKET NO. 98-032

NOVEMBER TERM, 1998
 

Stan Baker, et al. } APPEALED FROM:
}
}
v. } Chittenden Superior Court
}
State of Vermont, et al. }
} DOCKET NO. 1009-97CnC
 

In the above-entitled cause, the Clerk will enter:

The judgment of the superior court upholding the constitutionality of the
Vermont marriage statutes under Chapter I, Article 7 of the Vermont
Constitution is reversed. The effect of the Court's decision is suspended,
and jurisdiction is retained in this Court, to permit the Legislature to
consider and enact legislation consistent with the constitutional mandate
described herein.
 
 

_______________________________________
Jeffrey L. Amestoy, Chief Justice
 

Concurring:
Concurring and Dissenting:
_______________________________________
John A. Dooley, Associate Justice
________________________________
Denise R. Johnson, Associate Justice
_______________________________________
James L. Morse, Associate Justice
 

_______________________________________
Marilyn S. Skoglund, Associate Justice
 

-------------------------------------------------------------------------
 

NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.

No. 98-032

Stan Baker, et al. Supreme Court

On Appeal from
v. Chittenden Superior Court

State of Vermont, et al. November Term, 1998
 

Linda Levitt, J.

Beth Robinson and Susan M. Murray of Langrock Sperry & Wool,
Middlebury, and Mary Bonauto, Gay & Lesbian Advocates & Defenders, Boston,
Massachusetts, for Plaintiffs-Appellants.

William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan and
Timothy Tomasi, Assistant Attorneys General, Montpelier, for
Defendant-Appellee State.

Timothy M. Eustace of Stitzel, Page & Fletcher, P.C., Burlington, for
Defendants-Appellees Town of Shelburne and City of South Burlington.

Gregg H. Wilson of Kolvoord, Overton & Wilson, Essex Junction, for
Defendant-Appellee Town of Milton.

Harvey Golubock, Montpelier, for Amicus Curiae Vermont Human Rights
Commission.

Richard T. Cassidy of Hoff, Curtis, Pacht, Cassidy & Frame, P.C.,
Burlington, and Evan Wolfson, Lambda Legal Defense and Education Fund,
Inc., and Lawson M. Vicario and S. Elizabeth Foster of Gibson, Dunn &
Crutcher LLP, New York, New York, for Amici Curiae Vermont Coalition for
Lesbian and Gay Rights, et al.

David Rath of Kohn & Rath, Hinesburg, for Amicus Curiae Professors of
Legislation and Statutory Interpretation.

Eileen M. Blackwood of Blackwood and Kraynak, P.C., Burlington, David
Chambers, White River Junction, and Matthew Coles, American Civil Liberties
Union Foundation, New York, New York, for Amici Curiae Parents and Friends
of Lesbian and Gay Men, et al.

Peter M. Lawrence of Barr, Sternberg & Moss, P.C., Bennington, for
Amici Curiae Vermont Organization for Weddings of the Same-Gender, et al.

<Page 2>

William M Dorsch of Mickenberg, Dunn, Sirotkin & Dorsch, Burlington,
for Amici Curiae Vermont NOW, et al.

Philip C. Woodward and Karen McAndrew of Dinse, Knapp & McAndrew,
P.C., Burlington, for Amici Curiae Vermont Psychiatric Association, et al.

Hal Goldman, Burlington, for Amicus Curiae Take It To the People.

J. Paul Giuliani of McKee, Giuliani & Cleveland, Montpelier, and
Dwight G. Duncan, North Dartmouth, Massachusetts, for Amici Curiae New
Journey, et al.

Robert H. Erdmann, South Burlington, Jay Alan Sekulow and John P.
Tuskey, Virginia Beach, Virginia, and Vincent P. McCarthy, New Milford,
Connecticut, for Amicus Curiae The American Center for Law and Justice.

Clarke A. Gravel of Gravel & Shea, Burlington, and Don Stenberg,
Nebraska Attorney General, and L. Steven Grasz, Deputy Attorney General,
Lincoln, Nebraska, for Amici Curiae State of Nebraska, et al.

Jon R. Eggleston, Burlington, for Amicus Curiae Professors of Law and
Jurisprudence.

Duncan F. Kilmartin, Newport, and David R. Huggins, The National Legal
Foundation, Memphis, Tennessee, for Amici Curiae Specialty Research
Associates, et al.

William M. O'Brien, O'Brien Law Offices, Winooski, Thomas E. McCormick
of McCormick Fitzpatrick Kasper & Burchard, Burlington, and Von G. Keetch
and Alexander Dushku of Kirton & McConkie, Salt Lake City, Utah, for Amici
Curiae Roman Catholic Diocese of Burlington, Vermont, et al.

John Fitzpatrick, Burlington, and David Zwiebel, New York, New York,
for Amicus Curiae Agudath Israel of America.

Duncan F. Kilmartin of Rexford & Kilmartin, Newport, and Steven T.
McFarland, Kimberlee W. Colby and Samuel B. Casey, Annandale, Virginia, for
Amici Curiae Christian Legal Society, et al.

Timothy J. O'Connor, Jr., O'Connor Law Office, Brattleboro, and David
Orgon Coolidge, The Catholic University of America, Washington, District of
Columbia, for Amici Curiae Hon. Peter Brady, et al.

PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
 

<Page 3>

AMESTOY, C.J. May the State of Vermont exclude same-sex couples from
the benefits and protections that its laws provide to opposite-sex married
couples? That is the fundamental question we address in this appeal, a
question that the Court well knows arouses deeply-felt religious, moral,
and political beliefs. Our constitutional responsibility to consider the
legal merits of issues properly before us provides no exception for the
controversial case. The issue before the Court, moreover, does not turn
on the religious or moral debate over intimate same-sex relationships, but
rather on the statutory and constitutional basis for the exclusion of
same-sex couples from the secular benefits and protections offered married
couples.

We conclude that under the Common Benefits Clause of the Vermont
Constitution, which, in pertinent part, reads,

That government is, or ought to be, instituted for the common
benefit, protection, and security of the people, nation, or community, and
not for the particular emolument or advantage of any single person,
family, or set of persons, who are a part only of that community,

Vt. Const., ch. I, art 7., plaintiffs may not be deprived of the statutory
benefits and protections afforded persons of the opposite sex who choose
to marry. We hold that the State is constitutionally required to extend
to same-sex couples the common benefits and protections that flow from
marriage under Vermont law. Whether this ultimately takes the form of
inclusion within the marriage laws themselves or a parallel "domestic
partnership" system or some equivalent statutory alternative, rests with
the Legislature. Whatever system is chosen, however, must conform with
the constitutional imperative to afford all Vermonters the common benefit,
protection, and security of the law.

Plaintiffs are three same-sex couples who have lived together in
committed relationships

<Page 4>

for periods ranging from four to twenty-five years. Two of the couples
have raised children together. Each couple applied for a marriage license
from their respective town clerk, and each was refused a license as
ineligible under the applicable state marriage laws. Plaintiffs thereupon
filed this lawsuit against defendants -- the State of Vermont, the Towns of
Milton and Shelburne, and the City of South Burlington -- seeking a
declaratory judgment that the refusal to issue them a license violated the
marriage statutes and the Vermont Constitution.

The State, joined by Shelburne and South Burlington, moved to dismiss
the action on the ground that plaintiffs had failed to state a claim for
which relief could be granted. The Town of Milton answered the complaint
and subsequently moved for judgment on the pleadings. Plaintiffs opposed
the motions and cross-moved for judgment on the pleadings. The trial court
granted the State's and the Town of Milton's motions, denied plaintiffs'
motion, and dismissed the complaint. The court ruled that the marriage
statutes could not be construed to permit the issuance of a license to
same-sex couples. The court further ruled that the marriage statutes were
constitutional because they rationally furthered the State's interest in
promoting "the link between procreation and child rearing." This appeal
followed. (FN1)

I. The Statutory Claim

Plaintiffs initially contend the trial court erred in concluding that
the marriage statutes

<Page 5>

render them ineligible for a marriage license. It is axiomatic that the
principal objective of statutory construction is to discern the
legislative intent. See Merkel v. Nationwide Ins. Co., 166 Vt. 311, 314,
693 A.2d 706, 707 (1997). While we may explore a variety of sources to
discern that intent, it is also a truism of statutory interpretation that
where a statute is unambiguous we rely on the plain and ordinary meaning
of the words chosen. See In re P.S., 167 Vt. 63, 70, 702 A.2d 98, 102
(1997). "[W]e rely on the plain meaning of the words because we presume
they reflect the Legislature's intent." Braun v. Board of Dental
Examiners, 167 Vt. 110, 116, 702 A.2d 124, 127 (1997).

Vermont's marriage statutes are set forth in Chapter 1 of Title 15,
entitled "Marriage," which defines the requirements and eligibility for
entering into a marriage, and Chapter 105 of Title 18, entitled "Marriage
Records and Licenses," which prescribes the forms and procedures for
obtaining a license and solemnizing a marriage. Although it is not
necessarily the only possible definition, there is no doubt that the plain
and ordinary meaning of "marriage" is the union of one man and one woman
as husband and wife. See Webster's New International Dictionary 1506 (2d
ed. 1955) (marriage consists of state of "being united to a person . . .
of the opposite sex as husband or wife"); Black's Law Dictionary 986 (7th
ed. 1999) (marriage is "[t]he legal union of a man and woman as husband
and wife"). This understanding of the term is well rooted in Vermont
common law. See Le Barron v. Le Barron, 35 Vt. 365, 366-71 (1862)
(petition by wife to annul marriage for alleged physical impotence of
husband); Clark v. Field, 13 Vt. 460, 465 (1841) (suit to declare marriage
null and void on ground that husband and wife had not consummated
marriage); Overseers of the Poor of the Town of Newbury v. Overseers of the
Poor of the Town of Brunswick, 2 Vt. 151, 152 (1829) (dispute between
towns

<Page 6>

over liability for support of family turned, in part, on validity of
marriage where justice of peace had not declared parties husband and
wife). The legislative understanding is also reflected in the enabling
statute governing the issuance of marriage licenses, which provides, in
part, that the license "shall be issued by the clerk of the town where
either the bride or groom resides." 18 V.S.A. 5131(a). "Bride" and
"groom" are gender-specific terms. See Webster's, supra, at 334 (bride
defined as "a woman newly married, or about to be married;" bridegroom
defined as "a man newly married, or about to be married").

Further evidence of the legislative assumption that marriage consists
of a union of opposite genders may be found in the consanguinity statutes,
which expressly prohibit a man from marrying certain female relatives, see
15 V.S.A. 1, and a woman from marrying certain male relatives, see id.
2. In addition, the annulment statutes explicitly refer to "husband and
wife," see id. 513, as do other statutes relating to married couples.
See, e.g., 12 V.S.A. 1605 ("husband and wife" may not testify about
communications to each other under rule commonly known as "marital
privilege," see State v. Wright, 154 Vt. 512, 525, 581 A.2d 720, 728
(1990)); 14 V.S.A. 461, 465, 470 (referring to interest of "widow" in
estate of her "husband"); id. 10 (requiring three witnesses where
"husband or wife" are given beneficial interest in other's will); 15 V.S.A.
102 (legal protections where "married man . . . deserts, neglects,
or abandons his wife").

These statutes, read as a whole, reflect the common understanding that
marriage under Vermont law consists of a union between a man and a woman.
Plaintiffs essentially concede this fact. They argue, nevertheless, that
the underlying purpose of marriage is to protect and encourage the union
of committed couples and that, absent an explicit legislative prohibition,
the

<Page 7>

statutes should be interpreted broadly to include committed same-sex
couples. Plaintiffs rely principally on our decision in In re B.L.V.B.,
160 Vt. 368, 369, 628 A.2d 1271, 1272 (1993). There, we held that a woman
who was co-parenting the two children of her same-sex partner could adopt
the children without terminating the natural mother's parental rights.
Although the statute provided generally that an adoption deprived the
natural parents of their legal rights, it contained an exception where the
adoption was by the "spouse" of the natural parent. See id. at 370, 628
A.2d at 1273 (citing 12 V.S.A. 448). Technically, therefore, the
exception was inapplicable. We concluded, however, that the purpose of
the law was not to restrict the exception to legally married couples, but
to safeguard the child, and that to apply the literal language of the
statute in these circumstances would defeat the statutory purpose and
"reach an absurd result." Id. at 371, 628 A.2d at 1273. Although the
Legislature had undoubtedly not even considered same-sex unions when the
law was enacted in 1945, our interpretation was consistent with its
"general intent and spirit." Id. at 373, 628 A.2d at 1274.

Contrary to plaintiffs' claim, B.L.V.B. does not control our
conclusion here. We are not dealing in this case with a narrow statutory
exception requiring a broader reading than its literal words would permit
in order to avoid a result plainly at odds with the legislative purpose.
Unlike B.L.V.B., it is far from clear that limiting marriage to
opposite-sex couples violates the Legislature's "intent and spirit."
Rather, the evidence demonstrates a clear legislative assumption that
marriage under our statutory scheme consists of a union between a man and a
woman. Accordingly, we reject plaintiffs' claim that they were entitled
to a license under the statutory scheme governing marriage.

<Page 8>
II. The Constitutional Claim

Assuming that the marriage statutes preclude their eligibility for a
marriage license, plaintiffs contend that the exclusion violates their
right to the common benefit and protection of the law guaranteed by
Chapter I, Article 7 of the Vermont Constitution.(FN2) They note that in
denying them access to a civil marriage license, the law effectively
excludes them from a broad array of legal benefits and protections
incident to the marital relation, including access to a spouse's medical,
life, and disability insurance, hospital visitation and other medical
decisionmaking privileges, spousal support, intestate succession,
homestead protections, and many other statutory protections. They claim
the trial court erred in upholding the law on the basis that it reasonably
served the State's interest in promoting the "link between procreation and
child rearing." They argue that the large number of married couples
without children, and the increasing incidence of same-sex couples with
children, undermines the State's rationale. They note that Vermont law
affirmatively guarantees the right to adopt and raise children regardless
of the sex of the parents, see 15A V.S.A. 1-102, and challenge the logic
of a legislative scheme that recognizes the rights of same-sex partners as
parents, yet denies them -- and their children -- the same security as
spouses.

In considering this issue, it is important to emphasize at the outset
that it is the Common Benefits Clause of the Vermont Constitution we are
construing, rather than its counterpart, the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution. It is

<Page 9>

altogether fitting and proper that we do so. Vermont's constitutional
commitment to equal rights was the product of the successful effort to
create an independent republic and a fundamental charter of government,
the Constitution of 1777, both of which preceded the adoption of the
Fourteenth Amendment by nearly a century. As we explained in State v.
Badger, 141 Vt. 430, 448-49, 450 A.2d 336, 347 (1982), "our constitution
is not a mere reflection of the federal charter. Historically and
textually, it differs from the United States Constitution. It predates the
federal counterpart, as it extends back to Vermont's days as an
independent republic. It is an independent authority, and Vermont's
fundamental law."

As we explain in the discussion that follows, the Common Benefits
Clause of the Vermont Constitution differs markedly from the federal Equal
Protection Clause in its language, historical origins, purpose, and
development. While the federal amendment may thus supplement the
protections afforded by the Common Benefits Clause, it does not supplant it
as the first and primary safeguard of the rights and liberties of all
Vermonters. See id. (Court is free to "provide more generous protection
to rights under the Vermont Constitution than afforded by the federal
charter"); State v. Jewett, 146 Vt. 221, 224, 500 A.2d 233, 235 (1985)
(state constitution may protect Vermonters "however the philosophy of the
United States Supreme Court may ebb and flow"); see generally H. Linde,
First Things First, Rediscovering the States' Bill of Rights, 9 U. Balt. L.
Rev. 379, 381-82 (1980); S. Pollock, State Constitutions as Separate
Sources of Fundamental Rights, 35 Rutgers L. Rev. 707, 717-19 (1983).

A. Historical Development

In understanding the import of the Common Benefits Clause, this Court
has often referred

<Page 10>

to principles developed by the federal courts in applying the Equal
Protection Clause.(FN3) See, e.g., Choquette v. Perrault, 153 Vt. 45,
51-52,569 A.2d 455, ___ (1989). At the same time, however, we have
recognized that "[a]lthough the provisions have some similarity of purpose,
they are not identical." Benning v. State, 161 Vt. 472, 485 n.7, 641 A.2d
757, 764 n.7 (1994). Indeed, recent Vermont decisions reflect a very
different approach from current federal jurisprudence. That approach may
be described as broadly deferential to the legislative prerogative to
define and advance governmental ends, while vigorously ensuring that the
means chosen bear a just and reasonable relation to the governmental
objective.

Although our decisions over the last few decades have routinely
invoked the rhetoric of

<Page 11>

suspect class favored by the federal courts, see, e.g., Choquette, 153 Vt.
at 51, 569 A.2d at 458, there are notable exceptions. The principal
decision in this regard is the landmark case of State v. Ludlow
Supermarkets, Inc., 141 Vt. 261, 448 A.2d 791 (1982). There, Chief Justice
Albert Barney, writing for the Court, invalidated a Sunday closing law
that discriminated among classes of commercial establishments on the basis
of their size. After noting that this Court, unlike its federal
counterpart, was not constrained by considerations of federalism and the
impact of its decision on fifty varying jurisdictions, the Court declared
that Article 7 "only allows the statutory classifications . . . if a
case of necessity can be established overriding the prohibition of Article
7 by reference to the "`common benefit, protection, and security of the
people.'" Id. at 268, 448 A.2d at 795. Applying this test, the Court
concluded that the State's justifications for the disparate treatment of
large and small businesses failed to withstand constitutional scrutiny.
Id. at 269-70, 448 A.2d at 796.

Ludlow, as we later explained, did not alter the traditional
requirement under Article 7 that legislative classifications must
"reasonably relate to a legitimate public purpose." Choquette, 153 Vt. at
52, 569 A.2d at 459. Nor did it overturn the principle that the
justifications demanded of the State may depend upon the nature and
importance of the benefits and protections affected by the legislation;
indeed, this is implicit in the weighing process. It did establish that
Article 7 would require a "more stringent" reasonableness inquiry than was
generally associated with rational basis review under the federal
constitution. State v. Brunelle, 148 Vt. 347, 351, 534 A.2d 198, 201-202
(1987); see also Hodgeman v. Jard Co., 157 Vt. 461, 464, 599 A.2d 1371,
1373 (1991) (citing Ludlow for principle that Article 7 "may require this
Court to examine more closely distinctions drawn by state government than
would the Fourteenth

<Page 12>

Amendment"). Ludlow did not override the traditional deference accorded
legislation having any reasonable relation to a legitimate public purpose.
It simply signaled that Vermont courts -- having "access to specific
legislative history and all other proper resources" to evaluate the object
and effect of State laws -- would engage in a meaningful, case-specific
analysis to ensure that any exclusion from the general benefit and
protection of the law would bear a just and reasonable relation to the
legislative goals. Ludlow, 141 Vt. at 268, 448 A.2d at 795.(FN4)

Although it is accurate to point out that since Ludlow our decisions
have consistently recited the federal rational-basis/strict-scrutiny
tests, it is equally fair to observe that we have been less than
consistent in their application. Just as commentators have noted the
United States Supreme Court's obvious yet unstated deviations from the
rational-basis standard, so have this Court's holdings often departed from
the federal test.(FN5) In Colchester Fire Dist. No. 2 v.

<Page 13>

Sharrow, 145 Vt. 195, 198-99, 485 A.2d 134, 136-37 (1984), for example,
the Court ostensibly applied a rational-basis test to invalidate a payment
scheme for revenue-bond assessments. While acknowledging the broad
discretion traditionally accorded the Legislature in taxation and other
areas of public welfare, the Court nevertheless examined each of the
district's rationales in detail and found them to be unpersuasive in light
of the record and administrative experience. See id. at 200-201, 485 A.2d
at 137 (record established no "plausible relationship between the method
of bond assessment and its alleged purposes").

In Choquette, 153 Vt. at 51, 569 A.2d at 458, the Court again
purported to apply rational-basis review under Article 7 in holding a
fence-repair statute to be unconstitutional. Not content to accept
arguments derived from a bygone agricultural era, the Court held that the
policies underlying the law were outdated and failed to establish a
reasonable relation to the public purpose in the light of contemporary
circumstances. See id. at 53-54, 569 A.2d at 459-60; see also Oxx v.
Department of Taxes, 159 Vt. 371, 376, 618 A.2d 1321, 1324 (1992) (income
tax assessment violated Equal Protection and Common Benefits Clauses as
applied);

<Page 14>
 

Lorrain v. Ryan, 160 Vt. 202, 215 628 A.2d 543, 551 (1993) (statutory
scheme denying right of spouse of injured worker to sue third-party
tortfeasor for loss of consortium violated Equal Protection and Common
Benefits Clauses).

The "more stringent" test was also implicit in our recent decision in
MacCallum v. Seymour's Administrator, 165 Vt. 452, 686 A.2d 935 (1996),
which involved an Article 7 challenge to an intestacy statute that denied
an adopted person's right of inheritance from collateral kin. While
employing the rhetoric of minimal scrutiny, our analysis was more rigorous
than traditional federal rational-basis review. Indeed, although the
State proffered at least a conceivable purpose for the legislative
distinction between natural and adopted children, we held that the
classification was unreasonable, explaining that "[a]dopted persons have
historically been a target of discrimination," id. at 459, 686 A.2d at
939, and that however reasonable the classification when originally
enacted, it represented an "outdated" distinction today. Id. at 460, 686
A.2d at 939. Thus, while deferential to the historical purpose underlying
the classification, we demanded that it bear a reasonable and just
relation to the governmental objective in light of contemporary
conditions.

This approach may also be discerned in the Court's recent opinion in
Brigham v. State, 166 Vt. 246, 692 A.2d 384 (1997), addressing an Article
7 challenge to the State's educational funding system. Consistent with
prior decisions, the Court acknowledged the federal standard, see id. at
265, 692 A.2d at 395, even as it eschewed the federal categories of
analysis. Indeed, after weighing the State's justifications for the
disparate funding of education against its impact upon public-school
students, the Court concluded; "Labels aside, we are simply unable to
fathom a legitimate governmental purpose to justify the gross inequities
in educational opportunities

<Page 15>

evident from the record." Id. at 265, 692 A.2d at 396.

Thus, "labels aside," Vermont case law has consistently demanded in
practice that statutory exclusions from publicly-conferred benefits and
protections must be "premised on an appropriate and overriding public
interest." Ludlow, 141 Vt. at 268, 448 A.2d at 795. The rigid categories
utilized by the federal courts under the Fourteenth Amendment find no
support in our early case law and, while routinely cited, are often
effectively ignored in our more recent decisions. As discussed more fully
below, these decisions are consistent with the text and history of the
Common Benefits Clause which, similarly, yield no rigid categories or
formulas of analysis. The balancing approach utilized in Ludlow and
implicit in our recent decisions reflects the language, history, and
values at the core of the Common Benefits Clause. We turn, accordingly, to
a brief examination of constitutional language and history.

B. Text

We typically look to a variety of sources in construing our
Constitution, including the language of the provision in question,
historical context, case-law development, the construction of similar
provisions in other state constitutions, and sociological materials. See
Benning, 161 Vt. at 476, 641 A.2d 759. The Vermont Constitution was
adopted with little recorded debate and has undergone remarkably little
revision in its 200-year history. Recapturing the meaning of a particular
word or phrase as understood by a generation more than two centuries
removed from our own requires, in some respects, an immersion in the
culture and materials of the past more suited to the work of professional
historians than courts and lawyers. See generally, H. Powell, Rules for
Originalists, 73 Va. L. Rev. 659, 659-61 (1987); P. Brest, The Misconceived
Quest for the Original Understanding, 60 B.U.L. Rev. 204, 204-209 (1980).
The responsibility

<Page 16>

of the Court, however, is distinct from that of the historian, whose
interpretation of past thought and actions necessarily informs our
analysis of current issues but cannot alone resolve them. See Powell,
supra, at 662-68; Brest, supra, at 237. As we observed in State v.
Kirchoff, 156 Vt. 1, 6, 587 A.2d 988, 992 (1991), "our duty is to discover
the core value that gave life to Article [7]." (Emphasis added). Out of
the shifting and complicated kaleidoscope of events, social forces, and
ideas that culminated in the Vermont Constitution of 1777, our task is to
distill the essence, the motivating ideal of the framers. The challenge
is to remain faithful to that historical ideal, while addressing
contemporary issues that the framers undoubtedly could never have imagined.

We first focus on the words of the Constitution themselves, for, as
Chief Justice Marshall observed, "although the spirit of an instrument,
especially of a constitution, is to be respected not less than its letter,
yet the spirit is to be collected chiefly from its words." Sturges v.
Crowningshield, 17 U.S. (4 Wheat.) 122, 202 (1819). One of the fundamental
rights included in Chapter I of the Vermont Constitution of 1777, entitled
"A Declaration of Rights of the Inhabitants of the State of Vermont," the
Common Benefits Clause as originally written provided:

That government is, or ought to be, instituted for the common
benefit, protection, and security of the people, nation or community;
and not for the particular emolument or advantage of any single
man, family or set of men, who are a part only of that community;
and that the community hath an indubitable, unalienable and
indefeasible right, to reform, alter or abolish government, in such
manner as shall be, by that community, judged most conducive to
the public weal.

<Page 17>

Vt. Const. of 1777, ch. I, art. VI.(FN6)

The first point to be observed about the text is the affirmative and
unequivocal mandate of the first section, providing that government is
established for the common benefit of the people and community as a whole.
Unlike the Fourteenth Amendment, whose origin and language reflect the
solicitude of a dominant white society for an historically-oppressed
African-American minority (no state shall "deny" the equal protection of
the laws), the Common Benefits Clause mirrors the confidence of a
homogeneous, eighteenth-century group of men aggressively laying claim to
the same rights as their peers in Great Britain or, for that matter, New
York, New Hampshire, or the Upper Connecticut River Valley. See F.
Mahady, Toward a Theory of State Constitutional Jurisprudence: A Judge's
Thoughts, 13 Vt. L. Rev. 145, 151-52 (1988) (noting distinct eighteenth-
century origins of Article 7). The same assumption that all the people
should be afforded all the benefits and protections bestowed by government
is also reflected in the second section, which prohibits not the denial
of rights to the oppressed, but rather the conferral of advantages or
emoluments upon the privileged.(FN7)

The words of the Common Benefits Clause are revealing. While they do
not, to be sure, set forth a fully-formed standard of analysis for
determining the constitutionality of a given

<Page 18>
 

statute, they do express broad principles which usefully inform that
analysis. Chief among these is the principle of inclusion. As explained
more fully in the discussion that follows, the specific proscription
against governmental favoritism toward not only groups or "set[s] of men,"
but also toward any particular "family" or "single man," underscores the
framers' resentment of political preference of any kind. The affirmative
right to the "common benefits and protections" of government and the
corollary proscription of favoritism in the distribution of public
"emoluments and advantages" reflect the framers' overarching objective
"not only that everyone enjoy equality before the law or have an equal
voice in government but also that everyone have an equal share in the
fruits of the common enterprise." W. Adams, The First American
Constitutions 188 (1980) (emphasis added). Thus, at its core the Common
Benefits Clause expressed a vision of government that afforded every
Vermonter its benefit and protection and provided no Vermonter particular
advantage.

C. Historical Context

Although historical research yields little direct evidence of the
framers' intentions, an examination of the ideological origins of the
Common Benefits Clause casts a useful light upon the inclusionary
principle at its textual core. Like other provisions of the Vermont
Constitution of 1777, the Common Benefits Clause was borrowed verbatim
from the Pennsylvania Constitution of 1776, which was based, in turn, upon
a similar provision in the Virginia Declaration of Rights of 1776. See J.
Shaeffer, A Comparison of the First Constitutions of Vermont and
Pennsylvania, 43 Vt. Hist. 33, 33-35 (1975); J. Selsam, The Pennsylvania
Constitution of 1776: A Study in Revolutionary Democracy 178 (1936). The
original Virginia clause differed from the Pennsylvania and Vermont
provisions only in the second section, which

<Page 19>

was contained in a separate article and provided "[t]hat no man, or set of
men, are entitled to exclusive or separate emoluments or privileges from
the community, but in consideration of public services." See Virginia
Declaration of Rights, art. IV (reprinted in 11 West's Encyclopedia of
American Law 82 (1998)).(FN8)

Although aimed at Great Britain, the American Revolution -- as
numerous historians have noted -- also tapped deep-seated domestic
antagonisms. The planter elite in Virginia, the proprietors of Eastern
Pennsylvania, and New Yorkers claiming Vermont lands were each the object
of long-standing grievances. Selsam, supra, at 255-56; R. Shalhope,
Bennington and the Green Mountain Boys: The Emergence of Liberal Democracy
in Vermont, 1760-1850 at 70-97 (1996); G. Wood, The Creation of the
American Republic, 1776-1787 at 75-82 (1969). Indeed, the revolt against
Great Britain unleashed what one historian, speaking of Pennsylvania, has
called "a revolution within a revolution." Selsam, supra, at 1. By
attempting to claim equal rights for Americans against the English,
regardless of birthright or social status, "even the most aristocratic of
southern Whig planters . . . were pushed into creating an egalitarian
ideology that could be and even as early as 1776 was being turned against
themselves." Wood, supra, at 83. While not opposed to the concept of a
social elite, the framers of the first state constitutions believed that it
should consist of a "natural aristocracy" of talent, rather than an
entrenched clique favored by birth or social connections. See id. at
479-80. As the preeminent

<Page 20>

historian of the ideological origins of the Revolution explained, "while
`equality before the law' was a commonplace of the time, `equality without
respect to the dignity of the persons concerned' was not; [the
Revolution's] emphasis on social equivalence was significant." B. Bailyn,
The Ideological Origins of the American Revolution 307 (1967). Thus,
while the framers' "egalitarian ideology" conspicuously excluded many
oppressed people of the eighteenth century -- including African-Americans,
Native Americans, and women -- it did nevertheless represent a genuine
social revolt pitting republican ideals of "virtue," or talent and merit,
against a perceived aristocracy of privilege both abroad and at home.

Vermont was not immune to the disruptive forces unleased by the
Revolution. One historian has described Vermont on the eve of the
Revolution as rife with "factional rivalry [and] regional jealousy." G.
Aichele, Making the Vermont Constitution: 1777-1824, 56 Vt. Hist. 166, 177
(1988). Competing factions in the Champlain and Upper Connecticut River
Valleys had long vied for political and economic dominance. See id. at
180. Echoing Selsam on Pennsylvania, another historian has spoken of
"Vermont's double revolution -- a rebellion within a rebellion" to describe
the successful revolt against both Great Britain and New York by the yeoman
farmers, small-scale proprietors, and moderate land speculators who
comprised the bulk of the Green Mountain Boys. D. Smith, Green Mountain
Insurgency: Transformation of New York's Forty-Year Land War, 64 Vt. Hist.
197, 197-98, 224 (1996); see also Shalhope, supra, at 169 (egalitarian
ideology of American Revolution "resonated powerfully with the visceral
feelings" of Green Mountain Boys and others in Vermont).

The powerful movement for "social equivalence" unleashed by the
Revolution ultimately found its most complete expression in the first
state constitutions adopted in the early years of

<Page 21>

the rebellion. In Pennsylvania, where social antagonisms were most acute,
the result was a fundamental charter that has been described as "the most
radical constitution of the Revolution." Wood, supra, at 84-85; see also
Shaeffer, supra, at 35-36. Yet the Pennsylvania Constitution's
egalitarianism was arguably eclipsed the following year by the Vermont
Constitution of 1777. In addition to the commitment to government for the
"common benefit, protection, and security," it contained novel provisions
abolishing slavery, eliminating property qualifications for voting, and
calling for the governor, lieutenant governor, and twelve councilors to be
elected by the people rather than appointed by the Legislature. See
Shalhope, supra, at 171-72. These and other provisions have led one
historian to observe that Vermont's first charter was the "most democratic
constitution produced by any of the American states." See id. at 172.

The historical origins of the Vermont Constitution thus reveal that
the framers, although enlightened for their day, were not principally
concerned with civil rights for African-Americans and other minorities,
but with equal access to public benefits and protections for the community
as a whole. The concept of equality at the core of the Common Benefits
Clause was not the eradication of racial or class distinctions, but rather
the elimination of artificial governmental preferments and advantages.
The Vermont Constitution would ensure that the law uniformly afforded
every Vermonter its benefit, protection, and security so that social and
political preeminence would reflect differences of capacity, disposition,
and virtue, rather than governmental favor and privilege.(FN9)

<Page 22>

[continues text of FN9 (see below)]

<Page 23>

D. Analysis under Article 7

The language and history of the Common Benefits Clause thus reinforce
the conclusion that a relatively uniform standard, reflective of the
inclusionary principle at its core, must govern our analysis of laws
challenged under the Clause. Accordingly, we conclude that this approach,
rather than the rigid, multi-tiered analysis evolved by the federal courts
under the Fourteenth Amendment, shall direct our inquiry under Article 7.
As noted, Article 7 is intended to ensure that the benefits and
protections conferred by the State are for the common benefit of the
community and are not for the advantage of persons "who are a part only of
that community." When a statute is challenged under Article 7, we first
define that "part of the community" disadvantaged by the law. We examine
the statutory basis that distinguishes those protected by the law from
those excluded from the State's protection. Our concern here is with
delineating, not with labelling the excluded class as "suspect,"
"quasi-suspect," or "non-suspect" for purposes of determining different
levels of judicial scrutiny.(FN10)

<Page 24>
 

We look next to the government's purpose in drawing a classification
that includes some members of the community within the scope of the
challenged law but excludes others. Consistent with Article 7's guiding
principle of affording the protection and benefit of the law to all members
of the Vermont community, we examine the nature of the classification to
determine whether it is reasonably necessary to accomplish the State's
claimed objectives.

<Page 25>

We must ultimately ascertain whether the omission of a part of the
community from the benefit, protection and security of the challenged law
bears a reasonable and just relation to the governmental purpose.
Consistent with the core presumption of inclusion, factors to be considered
in this determination may include: (1) the significance of the benefits and
protections of the challenged law; (2) whether the omission of members of
the community from the benefits and protections of the challenged law
promotes the government's stated goals; and (3) whether the classification
is significantly underinclusive or overinclusive. As Justice Souter has
observed in a different context, this approach necessarily "calls for a
court to assess the relative `weights' or dignities of the contending
interests." Washington v. Glucksberg, 521 U.S. 702, 767 (1997) (Souter,
J., concurring). What keeps that assessment grounded and objective, and
not based upon the private sensitivities or values of individual judges,
is that in assessing the relative weights of competing interests courts
must look to the history and "`traditions from which [the State]
developed'" as well as those "`from which it broke,'" id. at 767 (quoting
Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)), and not
to merely personal notions. Moreover, the process of review is
necessarily "one of close criticism going to the details of the opposing
interests and their relationships with the historically recognized
principles that lend them weight or value." Id. at 769 (emphasis
added).(FN11)

<Page 26>

Ultimately, the answers to these questions, however useful, cannot
substitute for "`[t]he inescapable fact . . . that adjudication of . .
. claims may call upon the Court in interpreting the Constitution to
exercise that same capacity which by tradition courts always have
exercised: reasoned judgment.'" Id. (quoting Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833, 849 (1992)). The balance between
individual liberty and organized society which courts are continually
called upon to weigh does not lend itself to the precision of a scale. It
is, indeed, a recognition of the imprecision of "reasoned judgment" that
compels both judicial restraint and respect for tradition in
constitutional interpretation.(FN12)

E. The Standard Applied

With these general precepts in mind, we turn to the question of
whether the exclusion of same-sex couples from the benefits and
protections incident to marriage under Vermont law

<Page 27>

contravenes Article 7. The first step in our analysis is to identify
the nature of the statutory classification. As noted, the marriage
statutes apply expressly to opposite-sex couples. Thus, the statutes
exclude anyone who wishes to marry someone of the same sex.(FN13)

<Page 28>

Next, we must identify the governmental purpose or purposes to be
served by the statutory classification. The principal purpose the State
advances in support of the excluding same-sex couples from the legal
benefits of marriage is the government's interest in "furthering the link
between procreation and child rearing." The State has a strong interest,
it argues, in promoting a permanent commitment between couples who have
children to ensure that their offspring are considered legitimate and
receive ongoing parental support. The State contends, further, that the
Legislature could reasonably believe that sanctioning same-sex unions
"would diminish society's perception of the link between procreation and
child rearing . . . [and] advance the notion that fathers or mothers .
. . are mere surplusage to the functions of procreation and child
rearing." The State argues that since same-sex couples cannot conceive

<Page 29>

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." Hence, the Legislature is
justified, the State concludes, "in using the marriage statutes to send a
public message that procreation and child rearing are intertwined."

Do these concerns represent valid public interests that are reasonably
furthered by the exclusion of same-sex couples from the benefits and
protections that flow from the marital relation? It is beyond dispute that
the State has a legitimate and long-standing interest in promoting a
permanent commitment between couples for the security of their children. It
is equally undeniable that the State's interest has been advanced by
extending formal public sanction and protection to the union, or marriage,
of those couples considered capable of having children, i.e., men and
women. And there is no doubt that the overwhelming majority of births
today continue to result from natural conception between one man and one
woman. See J. Robertson, Assisted Reproductive Technology and the Family,
47 Hast. L. J. 911, 911-12 (1996) (noting the number of births resulting
from assisted-reproductive technology, which remain small compared to
overall number of births).

It is equally undisputed that many opposite-sex couples marry for
reasons unrelated to procreation, that some of these couples never intend
to have children, and that others are incapable of having children.
Therefore, if the purpose of the statutory exclusion of same-sex couples is
to "further[] the link between procreation and child rearing," it is
significantly under-inclusive. The law extends the benefits and
protections of marriage to many persons with no logical connection to the
stated governmental goal.

Furthermore, while accurate statistics are difficult to obtain, there
is no dispute that a

<Page 30>

significant number of children today are actually being raised by same-sex
parents, and that increasing numbers of children are being conceived by
such parents through a variety of assisted-reproductive techniques. See
D. Flaks, et al., Lesbians Choosing Motherhood: A Comparative Study of
Lesbian and Heterosexual Parents and Their Children, 31 Dev. Psychol. 105,
105 (1995) (citing estimates that between 1.5 and 5 million lesbian
mothers resided with their children in United States between 1989 and
1990, and that thousands of lesbian mothers have chosen motherhood through
donor insemination or adoption); G. Green and F. Bozett, Lesbian Mothers
and Gay Fathers, in Homosexuality: Research Implications for Public Policy
197, 198 (J. Gonsiorek et al. eds., 1991) (estimating that numbers of
children of either gay fathers or lesbian mothers range between six and
fourteen million); C. Patterson, Children of the Lesbian Baby Boom:
Behavioral Adjustment, Self-Concepts, and Sex Role Identity, in Lesbian and
Gay Psychology (B. Greene et al. eds., 1994) (observing that although
precise estimates are difficult, number of families with lesbian mothers
is growing); E. Shapiro & L. Schultz, Single-Sex Families: The Impact of
Birth Innovations Upon Traditional Family Notions, 24 J. Fam. L. 271, 281
(1985) ("[I]t is a fact that children are being born to single-sex families
on a biological basis, and that they are being so born in considerable
numbers").

Thus, with or without the marriage sanction, the reality today is that
increasing numbers of same-sex couples are employing increasingly
efficient assisted-reproductive techniques to conceive and raise children.
See L. Ikemoto, The In/Fertile, the Too Fertile, and the Dysfertile, 47
Hast. L. J. 1007, 1056 & n.170 (1996). The Vermont Legislature has not
only recognized this reality, but has acted affirmatively to remove legal
barriers so that same-sex couples may legally adopt and rear the children
conceived through such efforts. See 15A V.S.A. 1-102(b)

<Page 31>

(allowing partner of biological parent to adopt if in child's best
interest without reference to sex). The State has also acted to expand
the domestic relations laws to safeguard the interests of same-sex parents
and their children when such couples terminate their domestic
relationship. See 15A V.S.A. 1-112 (vesting family court with
jurisdiction over parental rights and responsibilities, parent-child
contact, and child support when unmarried persons who have adopted minor
child "terminate their domestic relationship").

Therefore, to the extent that the State's purpose in licensing civil
marriage was, and is, to legitimize children and provide for their
security, the statutes plainly exclude many same-sex couples who are no
different from opposite-sex couples with respect to these objectives. If
anything, the exclusion of same-sex couples from the legal protections
incident to marriage exposes their children to the precise risks that the
State argues the marriage laws are designed to secure against. In short,
the marital exclusion treats persons who are similarly situated for
purposes of the law, differently.

The State also argues that because same-sex couples cannot conceive a
child on their own, their exclusion promotes a "perception of the link
between procreation and child rearing," and that to discard it would
"advance the notion that mothers and fathers . . . are mere surplusage
to the functions of procreation and child rearing" Apart from the bare
assertion, the State offers no persuasive reasoning to support these
claims. Indeed, it is undisputed that most of those who utilize
non-traditional means of conception are infertile married couples, see
Shapior and Schultz, supra, at 275, and that many assisted-reproductive
techniques involve only one of the married partner's genetic material, the
other being supplied by a third party through sperm, egg, or embryo
donation. See E. May, Barren in the Promised Land: Childless

<Page 32>

Americans and the Pursuit of Happiness, 217, 242 (1995); Robertson, supra,
at 911-12, 922-27. The State does not suggest that the use of these
technologies undermines a married couple's sense of parental
responsibility, or fosters the perception that they are "mere surplusage"
to the conception and parenting of the child so conceived. Nor does it
even remotely suggest that access to such techniques ought to be restricted
as a matter of public policy to "send a public message that procreation and
child rearing are intertwined." Accordingly, there is no reasonable basis
to conclude that a same-sex couple's use of the same technologies would
undermine the bonds of parenthood, or society's perception of parenthood.

The question thus becomes whether the exclusion of a relatively small
but significant number of otherwise qualified same-sex couples from the
same legal benefits and protections afforded their opposite-sex
counterparts contravenes the mandates of Article 7. It is, of course,
well settled that statutes are not necessarily unconstitutional because
they fail to extend legal protection to all who are similarly situated.
See Benning, 161 Vt. at 486, 641 A.2d at 764 ("A statute need not regulate
the whole of a field to pass constitutional muster."). Courts have upheld
underinclusive statutes out of a recognition that, for reasons of
pragmatism or administrative convenience, the legislature may choose to
address problems incrementally. See, e.g., City of New Orleans v. Dukes,
427 U.S. 297, 303 (1976) (legislature may adopt regulations "that only
partially ameliorate a perceived evil"); Williamson v. Lee Optical of
Okla., Inc., 348 U.S. 483, 489 (1955) ("The legislature may select one
phase of one field and apply a remedy there, neglecting the others.").
The State does not contend, however, that the same-sex exclusion is
necessary as a matter of pragmatism or administrative convenience. We
turn, accordingly, from the principal justifications advanced by the State
to the interests asserted

<Page 33>

by plaintiffs.

As noted, in determining whether a statutory exclusion reasonably
relates to the governmental purpose it is appropriate to consider the
history and significance of the benefits denied. See Glucksberg, 521 U.S.
at 710 (to assess importance of rights and interests affected by statutory
classifications, courts must look to "history, legal traditions and
practices"). What do these considerations reveal about the benefits and
protections at issue here? In Loving v. Virginia, 388 U.S. 1, 12 (1967),
the United States Supreme Court, striking down Virginia's anti-
miscegenation law, observed that "[t]he freedom to marry has long been
recognized as one of the vital personal rights." The Court's point was
clear; access to a civil marriage license and the multitude of legal
benefits, protections, and obligations that flow from it significantly
enhance the quality of life in our society.

The Supreme Court's observations in Loving merely acknowledged what
many states, including Vermont, had long recognized. One hundred
thirty-seven years before Loving, this Court characterized the reciprocal
rights and responsibilities flowing from the marriage laws as "the natural
rights of human nature." See Overseers of the Poor, 2 Vt. at 159.
Decisions in other New England states noted the unique legal and economic
ramifications flowing from the marriage relation. See, e.g., Adams v.
Palmer, 51 Maine 481, 485 (Me. 1863) ("it establishes fundamental and most
important domestic relations"). Early decisions recognized that a marriage
contract, although similar to other civil agreements, represents much more
because once formed, the law imposes a variety of obligations,
protections, and benefits. As the Maine Supreme Judicial Court observed,
the rights and obligations of marriage rest not upon contract, "but upon
the general law of the State, statutory or common, which defines and
prescribes those

<Page 34>

rights duties and obligations. They are of law, not contract." See id. at
483; see also Ditson v. Ditson, 4 R.I. 87, 105 (1856) (marriage transcends
contract because "it gives rights, and imposes duties and restrictions upon
the parties to it"). In short, the marriage laws transform a private
agreement into a source of significant public benefits and protections.

While the laws relating to marriage have undergone many changes during
the last century, largely toward the goal of equalizing the status of
husbands and wives, the benefits of marriage have not diminished in value.
On the contrary, the benefits and protections incident to a marriage
license under Vermont law have never been greater. They include, for
example, the right to receive a portion of the estate of a spouse who dies
intestate and protection against disinheritance through elective share
provisions, under 14 V.S.A. 401-404, 551; preference in being appointed
as the personal representative of a spouse who dies intestate, under 14
V.S.A. 903; the right to bring a lawsuit for the wrongful death of a
spouse, under 14 V.S.A. 1492; the right to bring an action for loss of
consortium, under 12 V.S.A. 5431; the right to workers' compensation
survivor benefits under 21 V.S.A. 632; the right to spousal benefits
statutorily guaranteed to public employees, including health, life,
disability, and accident insurance, under 3 V.S.A. 631; the opportunity
to be covered as a spouse under group life insurance policies issued to an
employee, under 8 V.S.A. 3811; the opportunity to be covered as the
insured's spouse under an individual health insurance policy, under 8
V.S.A. 4063; the right to claim an evidentiary privilege for marital
communications, under V.R.E. 504; homestead rights and protections, under
27 V.S.A. 105-108, 141-142; the presumption of joint ownership of
property and the concomitant right of survivorship, under 27 V.S.A. 2;
hospital visitation and other rights incident to the medical treatment of
a family member, under

<Page 35>

18 V.S.A. 1852; and the right to receive, and the obligation to provide,
spousal support, maintenance, and property division in the event of
separation or divorce, under 15 V.S.A. 751-752. Other courts and
commentators have noted the collection of rights, powers, privileges, and
responsibilities triggered by marriage. See generally Baehr v. Lewin, 852
P.2d 44, 59 (Haw. 1993); D. Chambers, What If? The Legal Consequences of
Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L.
Rev. 447, passim; J. Robbenolt & M. Johnson, Legal Planning for Unmarried
Committed Parties: Empirical Lessons for a Preventive and Therapeutic
Approach, 41 Ariz. L. Rev. 417, passim (1999); J. Trosino, American
Wedding: Same-Sex Marriage and the Miscegenation Analogy, 73 B.U.L. Rev.
93, 96 (1993).

While other statutes could be added to this list, the point is clear.
The legal benefits and protections flowing from a marriage license are of
such significance that any statutory exclusion must necessarily be
grounded on public concerns of sufficient weight, cogency, and authority
that the justice of the deprivation cannot seriously be questioned.
Considered in light of the extreme logical disjunction between the
classification and the stated purposes of the law -- protecting children
and "furthering the link between procreation and child rearing" -- the
exclusion falls substantially short of this standard. The laudable
governmental goal of promoting a commitment between married couples to
promote the security of their children and the community as a whole
provides no reasonable basis for denying the legal benefits and protections
of marriage to same-sex couples, who are no differently situated with
respect to this goal than their opposite-sex counterparts. Promoting a
link between procreation and childrearing similarly fails to support the
exclusion. We turn, accordingly, to the remaining interests identified by
the State in support of the statutory exclusion.

<Page 36>

The State asserts that a number of additional rationales could support
a legislative decision to exclude same-sex partners from the statutory
benefits and protections of marriage. Among these are the State's
purported interests in "promoting child rearing in a setting that provides
both male and female role models," minimizing the legal complications of
surrogacy contracts and sperm donors, "bridging differences" between the
sexes, discouraging marriages of convenience for tax, housing or other
benefits, maintaining uniformity with marriage laws in other states, and
generally protecting marriage from "destabilizing changes." The most
substantive of the State's remaining claims relates to the issue of
childrearing. It is conceivable that the Legislature could conclude that
opposite-sex partners offer advantages in this area, although we note that
child-development experts disagree and the answer is decidedly uncertain.
The argument, however, contains a more fundamental flaw, and that is the
Legislature's endorsement of a policy diametrically at odds with the
State's claim. In 1996, the Vermont General Assembly enacted, and the
Governor signed, a law removing all prior legal barriers to the adoption
of children by same-sex couples. See 15A V.S.A. 1-102. At the same
time, the Legislature provided additional legal protections in the form of
court-ordered child support and parent-child contact in the event that
same-sex parents dissolved their "domestic relationship." Id. 1-112.
In light of these express policy choices, the State's arguments that
Vermont public policy favors opposite-sex over same-sex parents or
disfavors the use of artificial reproductive technologies, are patently
without substance.

Similarly, the State's argument that Vermont's marriage laws serve a
substantial governmental interest in maintaining uniformity with other
jurisdictions cannot be reconciled with Vermont's recognition of unions,
such as first-cousin marriages, not uniformly sanctioned

<Page 37>

in other states. See 15 V.S.A. 1-2 (consanguinity statutes do not
exclude first cousins); 1 H. Clark, The Law of Domestic Relations in the
United States 2.9, at 153-54 (2d ed. 1987) (noting states that prohibit
first-cousin marriage). In an analogous context, Vermont has sanctioned
adoptions by same-sex partners, see 15A V.S.A. 1-102, notwithstanding
the fact that many states have not. See generally, Annotation, Adoption
of Child By Same-Sex Partners, 27 A.L.R.5th 54, 68-72 (1995). Thus, the
State's claim that Vermont's marriage laws were adopted because the
Legislature sought to conform to those of the other forty-nine states is
not only speculative, but refuted by two relevant legislative choices
which demonstrate that uniformity with other jurisdictions has not been a
governmental purpose.

The State's remaining claims (e.g., recognition of same-sex unions
might foster marriages of convenience or otherwise affect the institution
in "unpredictable" ways) may be plausible forecasts as to what the future
may hold, but cannot reasonably be construed to provide a reasonable and
just basis for the statutory exclusion. The State's conjectures are not,
in any event, susceptible to empirical proof before they occur.(FN14)

Finally, it is suggested that the long history of official intolerance
of intimate same-sex relationships cannot be reconciled with an
interpretation of Article 7 that would give state-sanctioned benefits and
protection to individuals of the same sex who commit to a permanent
domestic relationship. We find the argument to be unpersuasive for several
reasons. First, to

<Page 38>

the extent that state action historically has been motivated by an animus
against a class, that history cannot provide a legitimate basis for
continued unequal application of the law. See MacCallum, 165 Vt. at
459-60, 686 A.2d at 939 (holding that although adopted persons had
"historically been a target of discrimination," social prejudices failed
to support their continued exclusion from intestacy law). As we observed
recently in Brigham, 166 Vt. at 267, 692 A.2d at 396, "equal protection of
the laws cannot be limited by eighteenth-century standards." Second,
whatever claim may be made in light of the undeniable fact that federal
and state statutes -- including those in Vermont -- have historically
disfavored same-sex relationships, more recent legislation plainly
undermines the contention. See, e.g., Laws of Vermont, 1977, No. 51, 2,
3 (repealing former 2603 of Title 13, which criminalized fellatio). In
1991, Vermont was one of the first states to enact statewide legislation
prohibiting discrimination in employment, housing, and other services based
on sexual orientation. See 21 V.S.A. 495 (employment); 9 V.S.A. 4503
(housing); 8 V.S.A. 4724 (insurance); 9 V.S.A. 4502 (public
accommodations). Sexual orientation is among the categories specifically
protected against hate-motivated crimes in Vermont. See 13 V.S.A. 1455.
Furthermore, as noted earlier, recent enactments of the General Assembly
have removed barriers to adoption by same-sex couples, and have extended
legal rights and protections to such couples who dissolve their "domestic
relationship." See 15A V.S.A. 1-102, 1-112.

Thus, viewed in the light of history, logic, and experience, we
conclude that 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.
Accordingly, in the faith that a case beyond the imagining of the framers
of our Constitution

<Page 39>

may, nevertheless, be safely anchored in the values that infused it, we
find a constitutional obligation to extend to plaintiffs the common
benefit, protection, and security that Vermont law provides opposite-sex
married couples. It remains only to determine the appropriate means and
scope of relief compelled by this constitutional mandate.

F. Remedy

It is important to state clearly the parameters of today's ruling.
Although plaintiffs sought injunctive and declaratory relief designed to
secure a marriage license, their claims and arguments here have focused
primarily upon the consequences of official exclusion from the statutory
benefits, protections, and security incident to marriage under Vermont
law. While some future case may attempt to establish that --
notwithstanding equal benefits and protections under Vermont law -- the
denial of a marriage license operates per se to deny constitutionally-
protected rights, that is not the claim we address today.

We hold only that plaintiffs are entitled under Chapter I, Article 7,
of the Vermont Constitution to obtain the same benefits and protections
afforded by Vermont law to married opposite-sex couples. We do not
purport to infringe upon the prerogatives of the Legislature to craft an
appropriate means of addressing this constitutional mandate, other than to
note that the record here refers to a number of potentially constitutional
statutory schemes from other jurisdictions. These include what are
typically referred to as "domestic partnership" or "registered
partnership" acts, which generally establish an alternative legal status to
marriage for same-sex couples, impose similar formal requirements and
limitations, create a parallel licensing or registration scheme, and
extend all or most of the same rights and obligations provided by the law
to married partners. See Report, Hawaii Commission on Sexual Orientation

<Page 40>

and the Law (Appendix D-1B) (1995) (recommending enactment of "Universal
Comprehensive Domestic Partnership Act" to establish equivalent licensing
and eligibility scheme and confer upon domestic partners "the same rights
and obligations under the law that are conferred on spouses in a marriage
relationship") (emphasis added); C. Christensen, If Not Marriage? On
Securing Gay and Lesbian Family Values by a "Simulacrum of Marriage", 66
Fordham L. Rev. 1699, 1734-45 (1998) (discussing various domestic and
foreign domestic partnership acts); A. Friedman, Same-Sex Marriage and the
Right to Privacy: Abandoning Scriptural, Canonical, and Natural Law Based
Definitions of Marriage, 35 How. L. J. 173, 217-220 n. 237 (reprinting
Denmark's "Registered Partnership Act"); see generally, Note, A More
Perfect Union: A Legal and Social Analysis of Domestic Partnership
Ordinances, 92 Colum. L. Rev. 1164 (1992) (discussing local domestic
partnership laws); M. Pedersen, Denmark: Homosexual Marriage and New Rules
Regarding Separation and Divorce, 30 J. Fam. L. 289 (1992) (discussing
amendments to Denmark's Registered Partnership Act); M. Roth, The
Norwegian Act on Registered Partnership for Homosexual Couples, 35 J. Fam.
L. 467 (1997) (discussing Norway's Act on Registered Partnership for
Homosexual Couples). We do not intend specifically to endorse any one or
all of the referenced acts, particularly in view of the significant
benefits omitted from several of the laws.

Further, while the State's prediction of "destabilization" cannot be a
ground for denying relief, it is not altogether irrelevant. A sudden
change in the marriage laws or the statutory benefits traditionally
incidental to marriage may have disruptive and unforeseen consequences.
Absent legislative guidelines defining the status and rights of same-sex
couples, consistent with constitutional requirements, uncertainty and
confusion could result. Therefore, we hold that the

<Page 41>

current statutory scheme shall remain in effect for a reasonable period of
time to enable the Legislature to consider and enact implementing
legislation in an orderly and expeditious fashion.(FN15) See Linkletter v.
Walker, 381 U.S. 618, 628 (1965) (no constitutional rule impedes court's
discretion to postpone operative date of ruling where exigencies require);
Smith v. State, 473 P.2d 937, 950 (Idaho 1970) (staying operative effect
of decision abrogating rule of sovereign immunity until adjournment of
next legislative session); Spanel v. Mounds View School Dist. No. 621, 118
N.W.2d 795, 803-04 (Minn. 1962) (same). In the event that the benefits and
protections in question are not statutorily granted, plaintiffs may
petition this Court to order the remedy they originally sought.

Our colleague asserts that granting the relief requested by plaintiffs
-- an injunction prohibiting defendants from withholding a marriage
license -- is our "constitutional duty." Post, at 3. (Johnson, J.,
concurring in part and dissenting in part). We believe the argument is
predicated upon a fundamental misinterpretation of our opinion. It appears
to assume that we hold plaintiffs are entitled to a marriage license. We
do not. We hold that the State is constitutionally required to extend to
same-sex couples the common benefits and protections that flow from
marriage under Vermont law. That the State could do so through a marriage
license is obvious. But it is not required to do so, and the mandate
proposed by our colleague is inconsistent with the Court's holding.

The dissenting and concurring opinion also invokes the United States
Supreme Court's

<Page 42>

desegregation decision in Watson v. City of Memphis, 373 U.S. 526 (1963),
suggesting that the circumstances here are comparable, and demand a
comparable judicial response. The analogy is flawed. We do not confront
in this case the evil that was institutionalized racism, an evil that was
widely recognized well before the Court's decision in Watson and its more
famous predecessor, Brown v. Board of Education, 347 U.S. 483 (1954).
Plaintiffs have not demonstrated that the exclusion of same-sex couples
from the definition of marriage was intended to discriminate against women
or lesbians and gay men, as racial segregation was designed to maintain the
pernicious doctrine of white supremacy. See Loving, 388 U.S. at 11
(holding anti-miscegenation statutes violated Equal Protection Clause as
invidious effort to maintain white supremacy). The concurring and
dissenting opinion also overlooks the fact that the Supreme Court's urgency
in Watson was impelled by the City's eight year delay in implementing its
decision extending Brown to public recreational facilities, and "the
significant fact that the governing constitutional principles no longer
bear the imprint of newly enunciated doctrine." See Watson, 373 U.S. at
529; Dawson v. Mayor and City Council of Baltimore, 220 F.2d 386, aff'd,
350 U.S. 877 (1955). Unlike Watson, our decision declares decidedly new
doctrine.

The concurring and dissenting opinion further claims that our mandate
represents an "abdicat[ion]" of the constitutional duty to decide, and an
inexplicable failure to implement "the most straightforward and effective
remedy." Post, at 3, 10. Our colleague greatly underestimates what we
decide today and greatly overestimates the simplicity and effectiveness of
her proposed mandate. First, our opinion provides greater recognition of
-- and protection for -- same sex relationships than has been recognized
by any court of final jurisdiction in this
 

<Page 43>

country with the instructive exception of the Hawaii Supreme Court in
Baehr, 825 P.2d 44. See Hawaii Const., art. I, 23 (state
constitutional amendment overturned same-sex marriage decision in Baehr by
returning power to Legislature "to reserve marriage to opposite-sex
couples"). Second, the dissent's suggestion that her mandate would avoid
the "political caldron" (post, at 4) of public debate is -- even allowing
for the welcome lack of political sophistication of the judiciary --
significantly insulated from reality. See Hawaii Const., art. I, 23; see
also Alaska Const., art. I, 25 (state constitutional amendment reversed
trial court decision in favor of same-sex marriage, Brause v. Bureau of
Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super. Ct.
Feb. 27, 1998), by providing that "a marriage may exist only between one
man and one woman").

The concurring and dissenting opinion confuses decisiveness with
wisdom and judicial authority with finality. Our mandate is predicated
upon a fundamental respect for the ultimate source of constitutional
authority, not a fear of decisiveness. No court was ever more decisive
than the United States Supreme Court in Dred Scott, 60 U.S. (19 How.) 393
(1857). Nor more wrong. Ironically it was a Vermonter, Stephen Douglas,
who in defending the decision said -- as the dissent in essence does here
-- "I never heard before of an appeal being taken from the Supreme Court."
See A. Bickel, The Morality of Consent 101 (1975). But it was a profound
understanding of the law and the "unruliness of the human condition," id.
at 11, that prompted Abraham Lincoln to respond that the Court does not
issue Holy Writ. See id. at 101. Our colleague may be correct that a
mandate intended to provide the Legislature with the opportunity to
implement the holding of this Court in an orderly and expeditious fashion
will have precisely the opposite effect. Yet it cannot be doubted that
judicial authority is not ultimate authority.

<Page 44>
 

It is certainly not the only repository of wisdom.

When a democracy is in moral flux, courts may not have the best or
the final answers. Judicial answers may be wrong. They may be
counterproductive even if they are right. Courts do best by
proceeding in a way that is catalytic rather than preclusive and
that is closely attuned to the fact that courts are participants
in the system of democratic deliberation.

C. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 6, 101
(1996).

The implementation by the Vermont Legislature of a constitutional
right expounded by this Court pursuant to the Vermont Constitution for the
common benefit and protection of the Vermont community is not an
abdication of judicial duty, it is the fulfillment of constitutional
responsibility.

III. Conclusion

While many have noted the symbolic or spiritual significance of the
marital relation, it is plaintiffs' claim to the secular benefits and
protections of a singularly human relationship that, in our view,
characterizes this case. The State's interest in extending official
recognition and legal protection to the professed commitment of two
individuals to a lasting relationship of mutual affection is predicated on
the belief that legal support of a couple's commitment provides stability
for the individuals, their family, and the broader community. Although
plaintiffs' interest in seeking state recognition and protection of their
mutual commitment may -- in view of divorce statistics -- represent "the
triumph of hope over experience,"(FN16) the essential aspect of their claim
is simply and fundamentally for inclusion in the family of
State-sanctioned human relations.

<Page 45>

The past provides many instances where the law refused to see a human
being when it should have. See, e.g., Dred Scott, 60 U.S. at 407
(concluding that African slaves and their descendants had "no rights which
the white man was bound to respect"). The future may provide instances
where the law will be asked to see a human when it should not. See, e.g.,
G. Smith, Judicial Decisionmaking in the Age of Biotechnology, 13 Notre
Dame J. Ethics & Pub. Policy 93, 114 (1999) (noting concerns that
genetically engineering humans may threaten very nature of human
individuality and identity). The challenge for future generations will be
to define what is most essentially human. The extension of the Common
Benefits Clause to acknowledge plaintiffs as Vermonters who seek nothing
more, nor less, than legal protection and security for their avowed
commitment to an intimate and lasting human relationship is simply, when
all is said and done, a recognition of our common humanity.

The judgment of the superior court upholding the constitutionality of
the Vermont marriage statutes under Chapter I, Article 7 of the Vermont
Constitution is reversed. The effect of the Court's decision is
suspended, and jurisdiction is retained in this Court, to permit the
Legislature to consider and enact legislation consistent with the
constitutional mandate described herein.
 

FOR THE COURT:
 

_______________________________________
Chief Justice

-----------------------------------------------------------------------------
Footnotes
 

FN1. In their motions, each of the parties presented the trial court
with extensive extra-pleading facts and materials, including legislative
history, scientific data, and sociological and psychological studies. See
V.R.C.P. 12(b) & (c) (motion treated as one for summary judgment where
"matters outside the pleadings are presented to and not excluded by the
court"); Fitzgerald v. Congleton, 155 Vt. 283, 293-94, 583 A.2 595, 601
(1990) (court effectively converted motion to dismiss into motion for
summary judgment where it considered matters outside pleadings and parties
had reasonable opportunity to submit extra-pleading materials). The
parties have continued to rely on these materials on appeal. In addition,
the Court has received numerous amicus curiae briefs, representing a broad
array of interests, supportive of each of the parties.

FN2. Although plaintiffs raise a number of additional arguments based
on both the United States and the Vermont Constitutions, our resolution of
the Common Benefits claim obviates the necessity to address them.

FN3. Conventional equal protection analysis under the Fourteenth
Amendment employs three "tiers" of judicial review based upon the nature
of the right or the class affected. See generally, Cleburne v. Cleburne
Living Center, Inc., 473 U.S. 432, 440-41 (1985); 3 R. Rotunda & J. Nowak,
Treatise on Constitutional Law 18.3, at 216-10 (3d ed. 1999). The first
step in that analysis is to categorize the class affected as more or less
similar to race based upon certain judicially-developed criteria. See
Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272 (1979); see
generally, J. Baer, Equality Under the Constitution: Reclaiming the
Fourteenth Amendment 253-64 (1983); C. Sunstein, The Anticaste Principle,
92 Mich. L. Rev. 2410, 2441-44 (1994). If a legislative classification
implicates a "suspect" class, generally defined in terms of historical
discrimination, political powerlessness, or immutable characteristics, the
law is subject to strict scrutiny, and the state must demonstrate that it
furthers a compelling governmental interest that could not be accomplished
by less restrictive means. In addition to race (the original suspect
class), alienage and national origin have also been recognized as suspect.
See Cleburne, 473 U.S. at 440. The United States Supreme Court has
created a "middle-tier" level of review for legislative classifications
based on gender or illegitimacy; laws affecting these groups must be
substantially related to a sufficiently important governmental interest to
withstand constitutional scrutiny. See id. The balance of legislative
enactments, including nearly all economic and commercial legislation, are
presumptively constitutional and will be upheld if rationally related to
any conceivable, legitimate governmental interest. See Minnesota v. Clover
Leaf Creamery Co., 449 U.S. 456, 466 (1981); see also Cleburne, 473 U.S.
at 440. Thus, as one commentator has explained, rationality review may be
"used to uphold laws justified even by hypothesized or ad hoc state
interests." J. Wexler, Defending the Middle Way: Intermediate Scrutiny as
Judicial Minimalism, 66 Geo. Wash. L. Rev. 298, 300 (1998).

FN4. In this respect, Ludlow was consistent with an older line of
Vermont decisions which, albeit in the Fourteenth Amendment context,
routinely subjected laws involving economic classifications to a
relatively straightforward reasonableness evaluation, explicitly balancing
the rights of the affected class against the State's proffered rationale.
See, e.g., State v. Hoyt, 71 Vt. 59, 64, 42 A. 973, 975 (1899)
(peddler-licensing classifications must be "based on some reasonable
ground, some difference that bears a just and proper relation to the
attempted classification, and is not a mere arbitrary selection"); State
v. Cadigan, 73 Vt. 245, 252, 50 A. 1079, 1081 (1901) (State must establish
"reasonable basis" to support law distinguishing between business
partnerships organized in Vermont and those formed in other states); State
v. Haskell, 84 Vt. 429, 437, 75 A. 852, 856 (1911) (mill regulation must
be "based upon some difference having a reasonable and just relation to
the object sought"). These opinions are notable for their detailed
examination of the context and purposes of the challenged legislation, the
impact on the affected class, and the logical fit between the statutory
classification and the public ends to be achieved.

FN5. Cass Sunstein, among others, has documented the United States
Supreme Court's unacknowledged departures from the deferential
rational-basis standard without defining a new kind of scrutiny. See C.
Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 6, 59-61
(1996). These cases include Romer v. Evans, 517 U.S. 620, 635 (1996)
(holding Colorado statute that banned state or local laws forbidding
sexual-orientation discrimination was not rationally related to legitimate
governmental objective), City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 450 (1985) (applying rational basis review, Court
invalidated zoning discrimination against mentally retarded as based on
"irrational prejudice"), and United States Dept. of Agriculture v. Moreno,
413 U.S. 528, 534 (1973) (invalidating regulation that excluded non-family
members of household from food stamp program). In each of these
decisions, the Court employed a highly contextual, fact-based analysis
balancing private rights and public interests even while ostensibly
applying minimal rational basis review. Conversely, in Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995), the high court
itself questioned the notion that strict scrutiny was inevitably "fatal in
fact." See G. Gunther, The Supreme Court, 1971 Term -- Foreword: In Search
of Evolving Doctrine on a Changing Court: A Model for a New Equal
Protection, 86 Harv. L. Rev. 1, 8 (1972) (observing that strict scrutiny
is generally "`strict' in theory and fatal in fact"). Viewed together,
these cases have prompted one commentator to suggest that "[t]he hard edges
of the tripartite division have thus softened," and that the Court has
moved "toward general balancing of relevant interests." Sunstein, supra,
at 77.

FN6. The current version differs from the original only in that the
gender-neutral terms "person" and "persons" have been substituted for
"man" and "men." See Vt. Const., Ch. II 76. This revision was not
intended to "alter the sense, meaning or effect of the" provision. Id.

FN7. There is little doubt as to the obligatory nature of the Common
Benefits Clause, which provides that "government is, or ought to be,
instituted for the common benefit, protection, and security . . . ."
(Emphasis added). Indeed the State does not argue that it is merely
hortatory or aspirational in effect, an argument that would not be
persuasive in any event. See Brigham, 166 Vt. at 261-62, 692 A.2d at
393-94 (1997) (framers "drew no distinction between `ought' and `shall' in
defining rights and duties").

FN8. The use of the word "family" in the Pennsylvania Common Benefits
Clause reflects Pennsylvania's history, where elite "proprietors"
including the Penns and other established families, had long dominated
colonial politics, religion, and economic interests. The revolt against
Great Britain presented an opportunity for western Pennsylvania farmers,
urban gentry, and dissenting Presbyterians nursing "deep seated and
long-felt grievances" to end Eastern domination of the colony, and
establish a more democratic form of government. See Selsam, supra, at 1,
255-56.

FN9. This Court has noted that interpretations of similar
constitutional provisions from other states may be instructive in
understanding our own. See Benning, 161 Vt. at 476, 641 A.2d at 759.
"Common Benefits" decisions from other states, however, are scarce.
Pennsylvania eliminated the Common Benefits Clause when it replaced its
constitution in 1790, and Virginia courts have not explored in any depth
the meaning of its clause. The New Hampshire Constitution of 1783 also
included a common benefits section substantially similar to Vermont's. See
N.H. Const., Pt. 1, art. 10. Although New Hampshire courts have not
developed an independent Common Benefits jurisprudence, several early New
Hampshire decisions noted the provision's significance. See State v.
Pennoyer, 18 A.2d 878, 881 (1889) (relying on Common Benefits Clause to
strike down physician-licensing statute that exempted physicians who had
resided in one place for four years); Rosenblum v. Griffin, 197 A. 701,
706 (1938) (noting that under Common Benefits Clause, "[e]quality of
benefit is no less required than equality of burden. Otherwise equal
protection is denied"). Massachusetts included a variation on Vermont's
Common Benefits Clause in its Constitution of 1780, as well as a separate
"emoluments" provision. See Mass. Const., Pt. 1, arts. VI & VII (adopted
1780). Massachusetts has not relied on the Common Benefits provision as a
separate source of equal protections rights. See Town of Brookline v.
Secretary of Com., 631 N.E.2d 968, 978 n.19 (Mass. 1994).

In the nineteenth century, a number of additional states adopted
variations on the Common Benefits Clause. See, e.g., Conn. Const. of
1818, art. 1, 2 ("[A]ll political power is inherent in the people, and
all free governments are founded on their authority, and instituted for
their benefit."); Ohio Const. of 1851, art. 1, 2 ("All political power
is inherent in the people. Government is instituted for their equal
protection and benefit."); W. Va. Const. Const., art. III, 3 (adopted
1872) ("Government is instituted for the common benefit, protection and
security of the people, nation or community."). Even assuming that
provisions enacted in the nineteenth century have some bearing on the
meaning of a Revolutionary-era document, these sister-state constitutions
provide little guidance. Ohio has held that the state clause is the
"functional equivalent" of the Equal Protection Clause with similar
standards. See American Ass'n of Univ. Professors v. Central State Univ.,
699 N.E.2d 463, 467 (Ohio 1998). The West Virginia Supreme Court, in
contrast, has relied on the Common Benefits Clause to hold that the State
constitution provides greater individual protection than the United States
Constitution. See United Mine Workers of Am. Inter. Union v. Parsons, 305
S.E.2d 343, 353-54 (W. Va. 1983). Apart from noting the absence of an
equivalent provision in the federal constitution, however, the West
Virginia court has not engaged in any extensive textual or historical
analysis.

A number of states during the Revolutionary and early National periods
also adopted separate provisions, apparently modeled on the Pennsylvania
and Virginia clauses, declaring that no men, or set of men, are entitled
to exclusive or separate emoluments or privileges from the community, but
in consideration of public services. See, e.g., N.C. Const. of 1776, Decl.
of Rights, 3; Mass. Const., Pt. 1, art. VI; Conn. Const. of 1818, art.
I, 1; Miss. Const. of 1832, art. I, 1; Ky. Const. of 1792, art. XII,
1. These "emoluments and privileges" clauses have been extensively cited
and applied, often in the context of taxpayer suits challenging public
expenditures as unconstitutional "gifts" of public funds without
consideration of public service, or suits challenging legislative acts
granting special credits, payments, or exemptions to a specific class.
see, e.g., Commissioner of Pub. Works v. City of Middletown. 731 A.2d 749.
757 (Conn. 1999) (challenge to tax exemption); Driscoll v. City of New
Haven, 52 A. 618, 622 (Conn. 1902) (taxpayer suit to enjoin municipal
grant of land to private company); Kentucky Union R.R. Co. v. Bourbon
County, 2. S.W. 687, 690 (Ky. 1887) (taxpayer suit to enjoin subscription
of bonds for railroad purposes); Brumley v. Baxter, 36 S.E.2d 281, 286
(N.C. 1945) (taxpayer suit to enjoin municipal grant of real property for
use by military veterans); see also Gross v. Auditor of Accounts, 109 Vt.
156, 159, 194 A. 465, 467 (1937) (Article 7 challenge to payment to
sheriff's widow as "emolument" without consideration of public service).
These cases generally turned on whether the challenged action promoted a
public purpose or was made without some consideration of public service.
They represent, in effect, the reverse of the Common Benefits Clause,
prohibiting the grant of special privileges to a select class of persons
over and above those granted to the general community, as the Common
Benefits Clause requires the equal enjoyment of general benefits and
protections by the whole community.

FN10. The concurring opinion would tie its analysis to the presumably
"objective" test of suspect class. But suspect class analysis has never
provided a stable mooring for constitutional application of Vermont's
Common Benefits Clause. Although the concurrence identifies precedents of
this Court holding that a more searching scrutiny is required when a
statutory scheme involves suspect classes, we have never established the
criteria for determining what constitutes a suspect class under the
Vermont Constitution nor have we ever identified a suspect class under
Article 7. Moreover, the concurrence applies strict scrutiny predicated
on a finding that lesbians and gay men are a suspect class, although the
overwhelming majority of decisions have rejected such claims. See Ben-
Shalom v. Marsh, 881 F.2d 454, 464-66 (7th Cir. 1989), cert denied, 494
U.S. 1004 (1990); Equality Found'n of Greater Cincinnati, Inc. v. City of
Cincinnati, 128 F.3d 289, 292-93 (6th Cir. 1997); Thomasson v. Perry, 80
F.3d 915, 927 (4th Cir.), cert. denied, 519 U.S. 948 (1996); Richenberg v.
Perry, 97 F.3d 256, 260-61 (8th Cir. 1996), cert. denied, 522 U.S. 807)
(1997); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d
563, 571-72 (9th Cir. 1990); Woodward v. United States, 871 F.2d 1068,
1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1002 (1990); Padula v.
Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); Baker v. Wade, 769 F.2d 289,
292 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1035 (1986); National
Gay Task Force v. Board of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984),
aff'd 470 U.S. 903 (1985); Opinion of the Justices, 530 A.2d 21, 24 (N.H.
1987).

The Court -- no less than the concurrence -- seeks a rationale
faithful to our Constitution and careful in the exercise of this Court's
limited powers. The concurrence suggests that the Oregon Supreme Court's
decision in Hewitt v. State Accident Ins. Fund Corp., 653 P.2d 970, 977-78
(Or. 1982) should be relied upon to supply the missing Vermont
jurisprudence of suspect class criteria. Yet, the Oregon Court of Appeals
found it necessary to abandon the immutable personal-characteristic
criterion of Hewitt in order to find that homosexuals were a suspect class
entitled to heightened scrutiny. See Tanner v. Oregon Health Sciences
Univ., 971 P.2d 435, 446 (Or. Ct. App. 1998). The "adverse stereotyping"
analysis used in its place, see id., may provide one intermediate
appellate court's answer to the question of whether homosexuals are a
suspect class, but it is far from an "exacting standard" by which to
measure the prudence of a court's exercise of its powers. It is difficult
to imagine a legal framework that could provide less predictability in the
outcome of future cases than one which gives a court free reign to decide
which groups have been the subject of "adverse social or political
stereotyping." Id. The artificiality of suspect-class labeling should be
avoided where, as here, the plaintiffs are afforded the common benefits and
protections of Article 7, not because they are part of a "suspect class,"
but because they are part of the Vermont community.

FN11. The concurring and concurring and dissenting opinions are
mistaken in suggesting that this standard places identical burdens upon
the State regardless of the nature of the rights affected. As explained
above, the significance of the benefits and protections at issue may well
affect the justifications required of the State to support a statutory
classification. This is plainly demonstrated in the discussion of
marriage benefits and protections which follows. Nor is there any merit to
the assertion that this standard invites a more "activist" review of
economic and social welfare legislation. See post, at 15 (Dooley, J.,
concurring). Characterizing a case as affecting "economic" interests,
"civil rights," "fundamental" rights, or "suspect classes" -- as our
colleagues apparently prefer -- is no less an exercise in judgment.
Indeed, it may disguise the court's value judgments with a label, rather
than explain its reasoning in terms that the public and the litigants are
entitled to understand. "It is a comparison of the relative strengths of
opposing claims that informs the judicial task, not a deduction from some
first premise." Glucksberg, 521 U.S. at 764 (Souter, J., concurring).
That is a task we trust will continue to be undertaken in a legal climate
that recognizes that "constitutional review, not judicial lawmaking, is a
court's business here." Id. at 768.

FN12. Justice Harlan has described the process of constitutional
interpretation as follows:

If the supplying of content to this Constitutional concept has of necessity
been a rational process, it certainly has not been one where judges have felt
free to roam where unguided speculation might take them. The balance of
which I speak is the balance struck by this country, having regard to what
history teaches are the traditions from which it developed as well as the
traditions from which it broke. That tradition is a living thing. A decision
of this Court which radically departs from it could not long survive, while a
decision which builds on what has survived is likely to be sound. No
formula could serve as a substitute, in this area, for judgment and restraint.

Poe, 367 U.S. at 542 (Harlan, J. dissenting).

FN13. Relying largely on federal precedents, our colleague in her
concurring and dissenting opinion suggests that the statutory exclusion of
same-sex couples from the benefits and protections of marriage should be
subject to heightened scrutiny as a "suspect" or "quasi-suspect"
classification based on sex. All of the seminal sex-discrimination
decisions, however, have invalidated statutes that single-out men or women
as a discrete class for unequal treatment. See, e.g., United States v.
Virginia, 518 U.S. 515, 555-56 (1996) (repudiating statute that precluded
women from attending Virginia Military Institute); Mississippi Univ. for
Women v. Hogan, 458 U.S. 718, 731 (1982) (invalidating admission policy
that excluded males from attending state-supported nursing school); Craig
v. Boren, 429 U.S. 190, 204 (1976) (invalidating statute that allowed women
to purchase non-intoxicating beer at younger age than men); Frontiero v.
Richardson, 411 U.S. 677, 690 (1973) (striking statute that imposed more
onerous requirements upon female members of armed services to claim
spouses as dependents).

Although this Court has not addressed the issue, see State v. George,
157 Vt. 580, 588, 602 A.2d 953, 957 (1991), we do not doubt that a statute
that discriminated on the basis of sex would bear a heavy burden under the
Article 7 analysis set forth above. The difficulty here is that the
marriage laws are facially neutral; they do not single-out men or women as
a class for disparate treatment, but rather prohibit men and women equally
from marrying a person of the same sex. As we observed in George, 157 Vt.
at 585, 602 A.2d at 956, "[i]n order to trigger equal protection analysis
at all . . . a defendant must show that he was treated differently as a
member of one class from treatment of members of another class similarly
situated." (Emphasis added). Here, there is no discrete class subject to
differential treatment solely on the basis of sex; each sex is equally
prohibited from precisely the same conduct.

Indeed, most appellate courts that have addressed the issue have
rejected the claim that defining marriage as the union of one man and one
woman discriminates on the basis of sex. See, e.g. Baker v. Nelson, 191
N.W.2d 185, 186-87 (Minn. 1971); Singer v. Hara, 522 P.2d 1187, 1191-92
(Wash. Ct. App. 1974); see also Phillips v. Wisconsin Personnel Comm'n, 482
N.W.2d 121, 129 (Wis. Ct. App. 1992) (holding that health insurance
regulation limiting state employee's dependent coverage to spouse did not
constitute sex discrimination because coverage was "unavailable to
unmarried companions of both male and female employees"); State v. Walsh,
713 S.W.2d 508, 510 (Mo. 1986) (rejecting claim that sodomy statute
imposed sex-based classification because it "applie[d] equally to men and
women [in] prohibit[ing] both classes from engaging in sexual activity
with members of their own sex"). But see Baehr v. Lewin, 852 P.2d 44, 64
(Haw. 1993) (plurality opinion holding that state's marriage laws
discriminated on basis of sex).

Although the concurring and dissenting opinion invokes the United
States Supreme Court decision in Loving v. Virginia, 388 U.S. 1 (1967),
the reliance is misplaced. There the high court had little difficulty in
looking behind the superficial neutrality of Virginia's anti-miscegenation
statute to hold that its real purpose was to maintain the pernicious
doctrine of white supremacy. Id. at 11. Our colleague argues, by analogy,
that the effect, if not the purpose, of the exclusion of same-sex partners
from the marriage laws is to maintain certain male and female stereotypes
to the detriment of both. To support the claim, she cites a number of
antiquated statutes that denied married women a variety of freedoms,
including the right to enter into contracts and hold property.

The test to evaluate whether a facially gender-neutral statute
discriminates on the basis of sex is whether the law "can be traced to a
discriminatory purpose." Personnel Administrator v. Feeney, 442 U.S. 256,
272 (1979). The evidence does not demonstrate such a purpose. It is one
thing to show that long-repealed marriage statutes subordinated women to
men within the marital relation. It is quite another to demonstrate that
the authors of the marriage laws excluded same-sex couples because of
incorrect and discriminatory assumptions about gender roles or anxiety
about gender-role confusion. That evidence is not before us.
Accordingly, we are not persuaded that sex discrimination offers a useful
analytic framework for determining plaintiffs' rights under the Common
Benefits Clause.

FN14. It would, for example, serve no useful purpose to remand this
matter for hearings on whether marriages of convenience (i.e., unions for
the purpose of obtaining certain statutory benefits) would result from
providing same-sex couples with the statutory benefits and protections
accorded opposite-sex couples under marriage laws. For the reasons we have
stated in this opinion, it is not a failure of proof that is fatal to the
State's arguments, it is a failure of logic.

FN15. Contrary to the characterization in the concurring and
dissenting opinion, we do not "decline[] to provide plaintiffs with a
marriage license" because of uncertainty and confusion that change may
bring. Post, at 11. Rather, it is to avoid the uncertainty that might
result during the period when the Legislature is considering potential
constitutional remedies that we consider it prudent to suspend the Court's
judgment for a reasonable period.

FN16. J. Boswell, Life of Johnson (1791) (reprinted in Bartlett's
Familiar Quotations 54 (15th ed. 1980).
 

-----------------------------------------------------------------------------
Concurring

<Page 3>

DOOLEY, J., concurring. I concur in Part I of the majority opinion,
the holding of Part II, and the mandate. I do not, however, concur in the
reasoning of Part II. I recognize that to most observers the significance
of this decision lies in its result and remedy. In the cases that come
before us in the future, however, the significance of this case will lie in
its rationale - that is, how we interpret and apply Chapter I, Article 7
of the Vermont Constitution. Moreover, in this, the most closely-watched
opinion in this Court's history, its acceptability will be based on whether
its reasoning and result are clearly commanded by the Constitution and our
precedents, and whether it is a careful and necessary exercise of the
Court's limited powers. I do not believe that the majority's rationale
meets this exacting standard, and I fear how it may be applied - or ignored
- in the future.

This is a concurrence and not a dissent. I agree with the majority
that the consequence of limiting marriage to a man and woman is the
exclusion of these plaintiffs, and many persons similarly situated, from
numerous rights, benefits, and duties that government and society provide
to - and impose on - married persons. However we might have described
marriage in relation to the very limited government that was created by
our Constitution, the complexity of the current system of
government-created benefits and burdens has made civil marriage a
modern-day emolument, a government recognized and supported special status
for which these plaintiffs are not eligible.

This is a civil rights case, very different from a claim of
discrimination with respect to, for example, a peddler's fee, see State v.
Hoyt, 71 Vt. 59, 42 A. 973 (1899), operation of partnerships, see State v.
Cadigan, 73 Vt. 245, 50 A. 1079 (1901), or regulation of river pollution,
see State v. Haskell, 84 Vt. 429, 75 A. 852 (1911). It is also very
different from a claim that exemptions to a Sunday closing law
unconstitutionally discriminated against large

<Page 4>

stores, the issue in State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 448
A.2d 791 (1982). The United States Supreme Court has recognized that
discrimination based on race, alienage, national origin, or sex requires
greater justification than economic discrimination, such as discrimination
in the fees charged certain peddlers based on the type of goods they are
selling. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440-41
(1985) (discussing the standards for scrutinizing various
classifications). Compare United States v. Virginia, 515 U.S. 518, 532
(1996) (sex), and Loving v. Virginia, 388 U.S. 1, 11 (1967) (race), with
Williamson v. Lee Optical, Inc., 348 U.S. 483, 486-88 (1955) (economic
regulation). Until this decision, we also recognized this distinction. As
we stated in Brigham v. State, 166 Vt. 246, 265, 692 A.2d 384, 396 (1997):
"Where a statutory scheme affects fundamental constitutional rights or
involves suspect classifications, both federal and state decisions have
recognized that proper equal protection analysis necessitates a more
searching scrutiny."

The marriage statutes do not facially discriminate on the basis of
sexual orientation. There is, however, no doubt that the requirement that
civil marriage be a union of one man and one woman has the effect of
discriminating against lesbian and gay couples, like the plaintiffs in this
case, who are unable to marry the life partners of their choice. The
majority proclaims that most decisions have concluded that lesbians and
gay men are not a suspect classification, inferring that any conclusion to
the contrary is wrong. See ante, at 24 n.10. On this point, however, I
believe the central analysis of Ludlow is critical:

[A] state court reviewing state legislation is in a very different
posture from the United States Supreme Court when it undertakes
the parallel task. Rather than disposing of a case on the premise that
its impact will presumably affect more than fifty varying
jurisdictions, a state court reaches its result in the legal climate of the
single jurisdiction with which it is associated, if federal proscriptions
are not transgressed.

<Page 5>

141 Vt. at 268, 448 A.2d at 795. Although our precedents mandate use of at
least a close cousin of the federal equal protection test, we must, as we
said in Ludlow, apply that test in our own "legal climate."

Vermont's legal climate differs considerably from that in other
jurisdictions where courts have held that lesbians and gay men are not a
suspect classification. Indeed, the federal analysis of the rights of
lesbians and gay men almost always starts with Bowers v. Hardwick, 478 U.S.
186 (1986), a decision that reflects a legal climate quite hostile to
those rights. Bowers upheld a Georgia conviction for sodomy based on a
sex act committed by two males in the bedroom of defendant's home. See
id. at 196. It held that, for due process purposes, individuals do not
have "a fundamental right to engage in homosexual sodomy." Id. at 191.

Federal courts considering equal-protection challenges have relied on
Bowers to conclude that lesbians and gay men are not a suspect
classification. They rationalize that if homosexual conduct can
constitutionally be criminalized, homosexuals cannot constitute a suspect
class. See, e.g., Equality Found. of Greater Cincinnati, Inc. v. City of
Cincinnati, 128 F.3d 289, 292-93 (6th Cir. 1997) (holding that under
Bowers and its progeny, homosexuals do not constitute suspect class
because conduct which defined them as homosexuals could constitutionally be
proscribed); Ben-Shalom v. Marsh, 881 F.2d 454, 464-65 (7th Cir. 1989)
(citing Bowers and holding that because homosexual conduct may
constitutionally be criminalized, homosexuals do not constitute a suspect
class); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d
563, 571 (9th Cir. 1990) (same);Woodward v. United States, 871 F.2d 1068,
1074-76 (Fed. Cir. 1989) (same); Padula v. Webster, 822 F.2d 97, 102-03
(D.C. Cir. 1987) (same); see also Opinion of the Justices, 530 A.2d 21, 24
(N.H. 1987) (stating that for federal equal-protection analysis homosexuals
do not constitute a suspect class, nor is there a fundamental

<Page 6>

right to engage in sodomy according to Bowers).

The majority errs in relying on these cases because the Bowers
rationale applied in all of them is not applicable in Vermont today.
Although Vermont, like all states, once criminalized sodomy, and had a
"fellation" law, see State v. LaForrest, 71 Vt. 311, 312, 45 A.2d 225, 226
(1899) (holding sodomy a crime by virtue of 1 V.S.A. 271 -- formerly V.S.
898 -- and adopting common law so far as applicable in Vermont); 13 V.S.A.
2603 (repealed 1977, No. 51, 2), it repealed this law in 1977 and does
not now prohibit, or otherwise restrict, homosexual conduct between
adults, except on the same terms that it restricts heterosexual conduct.
See, e.g., 13 V.S.A. 3252 (sexual assault); 13 V.S.A. 3253 (aggravated
assault); 13 V.S.A. 2601 (lewd and lascivious conduct).

Since 1992, it has generally been the policy of Vermont to prohibit
discrimination based on sexual orientation. See 1991, No. 135 (Adj.
Sess.). This includes discrimination based on "male or female
homosexuality." 1 V.S.A. 143. Thus, I believe our "legal climate" is
vastly different from that in Bowers, where, after considering that
twenty-four states had criminalized sodomy between consenting adults, the
United States Supreme Court concluded that there was no fundamental right,
deeply rooted in the Nation's history, to engage in such conduct. My point
here is simply that the rationale in federal decisions for withholding a
more searching scrutiny does not apply in Vermont. The majority errs in
relying on these decisions and the state court decisions applying the same
federal analysis.

Chapter I, Article 7 of the Vermont Constitution actually contains
three clauses, the most important of which is the second, which contains
the prohibition on governmental actions "for the particular emolument or
advantage of any single person, family, or set of persons, who are a part
only of that community." This anti-privilege language, and variations on
it, is contained

<Page 7>

in the vast majority of pre-civil war state constitutions. See, e.g.,
Conn. Const. of 1818, art. I, 1; Ky. Const. of 1792, art. XII, 1; Mass.
Const., art. VI (adopted in 1780); N.H. Const., art. X (adopted in 1784);
N.C. Const. of 1776, art. III; Ohio Const. of 1851, art. I, 2; Va. Const.
of 1776, Bill of Rights, 4; Tx. Const. of 1845, art. I, 2. At least
in this century, the jurisprudence in Vermont is similar to that in most
states. See, e.g., Town of Emerald Isle v. State, 360 S.E.2d 756, 764
(N.C. 1987) (classification is not exclusive emolument if intended to
promote general welfare and reasonable basis exists to conclude it serves
public interest); Primes v. Tyler, 331 N.E.2d 723, 728-29 (Ohio 1975)
(statute violates constitution because no governmental interest justifies
grant of special privilege and immunity); Rosenblum v. Griffin, 197 A. 701,
706 (N.H. 1938) (classification is constitutional under New Hampshire or
federal law if based on some reasonable ground); City of Corbin v.
Louisville & Nashville R.R. Co., 26 S.W.2d 539, 540 (Ky. 1930) (purpose of
emoluments and privileges clause is to place all similarly situated
citizens on plane of equality under law).

Oregon, like Vermont, has developed an independent state
constitutional jurisprudence. Article I, Section 20 of the Oregon
Constitution, adopted in 1859, provides that no law shall "grant[] to any
citizen or class of citizens privileges, or immunities, which, upon the
same terms, shall not equally belong to all citizens." This provision is
similar in purpose and effect to our Common Benefits Clause. See D.
Schuman, The Right to "Equal Privileges and Immunities": A State Version
of "Equal Protection," 13 Vt. L. Rev. 221, 222-25 (1988). The Oregon
Supreme Court has described that provision precisely how we today have
described Chapter I, Article 7: "Antedating the Civil War and the equal
protection clause of the fourteenth amendment, its language reflects early
egalitarian objections to favoritism and special privileges for a few
rather than the concern of the Reconstruction Congress about
discrimination against disfavored individuals or groups." State v. Clark,
630 P.2d 810, 814 (Or. 1981). Just as this Court has acknowledged in
developing its Article 7 jurisprudence, the Oregon court has recognized
that a privilege for a person or group of persons means discrimination
against

<Page 8>
 
 

others. See id. at 814 (Article I, Section 20 of Oregon Constitution
protects against adverse discrimination as well as against favoritism).
Thus, while developing an independent state constitutional jurisprudence,
the Oregon Supreme Court has looked to the decisions of United States
Supreme Court, but has adopted the federal analysis only where the court
finds it persuasive. See State v. Kennedy, 666 P.2d 1316, 1321 (Or. 1983).
See, e.g., Hewitt v. State Accident Ins. Fund Corp., 653 P.2d 970, 976
(Or. 1982) (declining to adopt federal standard of intermediate scrutiny
for sex-based classifications).

The Oregon Supreme Court, like this Court, has adopted the federal,
tiered framework for analyzing equal-protection type constitutional
challenges. See Hewitt, 653 P.2d at 976 (following United States Supreme
Court analysis that asks whether classification is made on basis of suspect
classification, and if so, whether such classification is subject to strict
scrutiny). Moreover, it has held, as we have held, that its state
constitution "prohibits disparate treatment of groups or individuals by
virtue of 'invidious' social categories" and that discrimination against a
suspect class is subject to strict scrutiny. Id.; see MacCallum v.
Seymour's Adm'r, 165 Vt. 452, 460, 686 A.2d 935, 939 (1996) (Article 7
protects against invidious discrimination). I point out the similarities
between our Article 7 jurisprudence and Oregon's Section 20 jurisprudence
because this Court has not established the criteria for identifying
suspect classifications, while the Oregon courts have. Because of the
historical similarity, I find it useful to look to Oregon case law, and the
United States Supreme Court decisions upon which it relies, in considering
whether lesbians and gay men are a suspect classification under Article

<Page 9>

7.

In Hewitt, the Oregon Supreme Court determined that sex-based
classifications are suspect because (1) they focus on an immutable
personal characteristic and thus "can be suspected of reflecting
`invidious' social or political premises, that is to say, prejudice or
stereotyped prejudgments," and (2) "[t]he purposeful historical, legal,
economic and political unequal treatment of women is well known." 653
P.2d at 977. Accordingly, the court held that sex-based classifications
are inherently suspect, like the United States Supreme Court found
classifications based on race, alienage, and nationality. See id. at
977-78 (citing Loving v. Virginia, 388 U.S. 1, 11 (1967) (race); Graham v.
Richardson, 403 U.S. 365, 372 (1971) (alienage); Oyama v. California, 332
U.S. 633, 646 (1948) (nationality)).

Although the Oregon Supreme Court has not addressed whether lesbians
and gay men are a suspect classification, the Oregon Court of Appeals has
recently done so. See Tanner v. Oregon Health Sciences Univ., 971 P.2d
435 (Or. Ct. App. 1998). In Tanner, the court held that Article I,
Section 20 of the Oregon Constitution requires the Oregon Health Sciences
University to extend health and life insurance benefits to the unmarried
domestic partners of its homosexual employees. See id. at 448. The
Tanner court examined the Hewitt two-part test for defining suspect classes
and determined that "immutability -- in the sense of inability to alter or
change -- is not necessary" because alienage and religious affiliation --
which may be changed -- have been held to be suspect classifications.
Thus, it held that defining a suspect class depends not on the immutability
of a class-defining characteristic, but upon (1) whether the
characteristic has historically been regarded as defining a distinct
socially-recognized group, and if so (2) whether that group has been the
subject of adverse social or political stereotyping. See id. at 446.
Applying this test, the court concluded that the class of homosexual
couples is

<Page 10>

clearly defined in terms of stereotyped personal and social
characteristics; is widely regarded as a distinct, socially recognized
group; and indisputably has "been and continues to be the subject of
adverse social and political stereotyping and prejudice." Id. at 447.
Thus, the court found that the plaintiffs, three lesbian couples, were
members of a suspect class.

In this concurrence, I do not detail a suspect-classification
analysis, but I can summarize my opinion by saying that I agree with the
general framework adopted by the Oregon courts in Hewitt and Tanner.
These decisions concerning Article I, Section 20 of that state's
constitution are entirely consistent with the law we have developed under
Chapter I, Article 7 of the Vermont Constitution, at least prior to this
decision. I find Hewitt and Tanner far more persuasive than the majority's
decision, which backtracks from the established legal framework under
Article 7 and fails to provide any guidelines whatsoever for the
Legislature, the trial courts, or Vermonters in general to predict the
outcome of future cases.

I agree with the majority that the State cannot justify the denial of
legal benefits and responsibilities of civil marriage to gay and lesbian
couples. And I agree that the appropriate remedy is either to require the
State to extend the option of receiving these benefits and associated
responsibilities to these couples, or to require that it offer the
opportunity for civil marriage on equal terms. I will briefly explain my
disagreement with the majority's rationale for reaching the same result.

The majority's analysis under Chapter I, Article 7 proceeds in three
steps: (1) there is one equality standard imposed by Article 7, and it
applies to claims of civil rights discrimination and economic
discrimination alike; (2) the equality standard is higher, that is, more
active, than the standard imposed by the Equal Protection Clause of the
Fourteenth Amendment for analyzing claims of economic discrimination; and
(3) under the new standard, the denial of the benefits

<Page 11>
 

of marriage to lesbians and gay men violates Chapter I, Article 7. In the
first two steps, the majority makes statements entirely contrary to our
existing Article 7 jurisprudence. As to the third step, I find no
standard in the Court's decision - it is entirely a matter of "judgment."

The first step in the Court's analysis requires overruling a long
series of precedents holding that where a statutory scheme affects
fundamental constitutional rights or involves suspect classifications,
Article 7 requires "a more searching scrutiny." Brigham, 166 Vt. at 265,
692 A.2d at 396.(FN1) Among the decisions that have stated this standard
are L'Esperance v. Town of Charlotte, 167 Vt. 162, 165, 704 A.2d 760, 762
(1997); McCallum, 165 Vt. at 457, 686 A.2d at 936-37; Benning v. State,
161 Vt. 472, 486, 641 A.2d 757, 764 (1994); In re Sherman Hollow, Inc., 160
Vt. 627, 628, 641 A.2d 753, 755 (1993) (mem.); Oxx v. Department of Taxes,
159 Vt. 371, 376, 618 A.2d 1321, 1324 (1992); Hodgeman v. Jard Co., 157
Vt. 461, 464, 599 A.2d 1371, 1373 (1991); State v. George, 157 Vt. 580,
588, 602 A.2d 953, 957 (1991); Town of Sandgate v. Colehamer, 156 Vt. 77,
88, 589 A.2d 1205, 1211 (1990); and Choquette v. Perrault, 153 Vt. 45,
51-52, 569 A.2d 455, 459 (1989).(FN2) The majority barely acknowledges
the multi-tiered standard stated in those cases, and dismisses it as a
"rigid" analysis. See ante, at 23. It is ironic that in a civil rights
case we overrule our precedent

<Page 12>

requiring the State to meet a higher burden in civil rights cases, but
still conclude, under the lower standard, that the State has not met its
burden.

The effect of the majority decision is that the State now bears no
higher burden to justify discrimination against African-Americans or women
than it does to justify discrimination against large retail stores as in
Ludlow. I doubt that the framers of our Constitution, concerned with
preventing the equivalent of British royalty, would believe that the
inevitable line-drawing that must occur in economic regulation should be
equated with the denial of civil and human rights. I do not believe that
the new standard is required by, or even consistent with, the history on
which the majority bases it.

The second step is also at variance with our Article 7 law, even as it
seeks to rely upon it. The majority holds that Article 7 requires a more
active standard of constitutional review than the Fourteenth Amendment, as
interpreted by the United States Supreme Court, in the absence of a
fundamental right or suspect classification. See ante, at 11-12. This
means that in the future this Court is less likely to defer to the
Legislature and more likely to find its acts unconstitutional than would
the United States Supreme Court. Again, I find great irony in the fact
that we are doing this unnecessarily in a case where the main theme of the
State and many amici is that we must defer to the Legislature on the issue
before us.

I agree that Ludlow, Choquette, and MacCallum contain important
holdings about how equality challenges are addressed by a state court.
Ludlow holds that we must look at justifications for distinctions that are
realistic in view of Vermont's unique legal culture. See Ludlow, 141 Vt.
at 268, 448 A.2d at 795. Choquette and MacCallum hold that such
justifications must be relevant to contemporary circumstances and not be
wholly archaic. See Choquette, 153 Vt. at 53-54, 569 A.2d at 460;
MacCallum, 165 Vt. at 461, 686 A.2d at 940.

<Page 13>

None of these decisions demonstrate that "Vermont decisions reflect a very
different approach from current federal jurisprudence," which is how the
majority characterizes them. Ante, at 10. Indeed, we have said over and
over that the test, where no fundamental right or suspect class is
involved, "is the same under the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution" as under Article 7. Lorrain
v. Ryan, 160 Vt. 202, 212, 628 A.2d 543, 550 (1993); see Brigham, 166 Vt.
at 265, 692 A.2d at 395; L'Esperance, 167 Vt. at 165, 704 A.2d at 762.
Although the majority seeks to rely on isolated statements from Ludlow, in
fact, we are by this decision creating a new, more active standard of
review in Article 7 challenges.(FN3)

<Page 14>

We have wisely, in the past, avoided the path the majority now
chooses, a path worn and abandoned in many other states. When Justice
Hayes decried the failure of litigants to raise state constitutional
issues, see State v. Jewett, 146 Vt. 221, 229, 500 A.2d 233, 238 (1985), he
could not have been referring to challenges under state anti-emolument and
equality provisions. In state after state, throughout the nineteenth and
early twentieth centuries, state supreme courts routinely struck down
economic and social welfare statutes under these provisions using an
analysis similar to that employed by the majority in this case. See H.
Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era
Police Powers Jurisprudence 9 (1993). For example, in Auditor of Lucas
County v. State, 78 N.E. 955, 957 (Ohio 1906), the Ohio Supreme Court
struck down an Ohio law that provided a stipend of $25 each quarter to
adult blind persons because it was over-inclusive -- including rich and
poor -- and under-inclusive -- including only some disabled persons. See
also Cincinnati v. Cook, 140 N.E. 655, 656 (Ohio 1923) (striking down
ordinance that allowed parking in front of train station only with consent
of supervisor of station, in part because it created "privilege or
immunity" in those who were allowed to park); Low v. Rees Printing Co., 59
N.W. 362, 368 (Neb. 1894) (striking down eight-hour-day law because it
exempted farm or domestic labor); State v. Pennoyer, 18 A. 878, 881 (N.H.
1889) (striking down statute requiring licensing of all physicians, except
those who resided in only one town between 1875 and 1879, because it
imposed unequal burden on

<Page 15>
 

members of same class); Millett v. People, 7 N.E. 631, 636 (Ill. 1886)
(striking down statute requiring mine operators who tied wages to amount of
coal extracted to keep scale at mine so coal could be weighed before
managers had chance to separate unusable material); In re Jacobs, 98
N.Y.98, 112-14 (N.Y. 1885) (striking down act addressing deplorable
working conditions under which cigar makers labored in tenements by banning
the manufacturing of cigars in those dwellings); Ex parte Westerfield, 55
Cal. 550, 551 (Cal. Sup. Ct. 1880) (striking down law making it
misdemeanor for bakers to force employees to work between six o'clock
Saturday evening and six o'clock Sunday evening).

Most of these decisions reflect judicial attitudes prevalent in the
era of Lochner v. New York, 198 U.S. 45 (1905), when the United States
Supreme Court was routinely striking down economic and social welfare
legislation. As the United States Supreme Court modified its
jurisprudence to give primacy to the federal and state legislative role in
economic and social welfare legislation, state courts did likewise, often
on the basis that Fourteenth Amendment jurisprudence was equally
applicable under state due process and equality provisions. See Gillman,
supra, at 62. See, e.g.,Department of Mental Hygiene v. Kirchner, 400 P.2d
321, 322 (Cal. 1965) (Fourteenth Amendment to federal constitution and
Sections 11 and 21 of Article I of California Constitution provide
generally equivalent but independent protections in their respective
jurisdictions); People v. Willi, 179 N.Y.S. 542, 547 (Del. Cty. Ct. 1919)
(methods of analysis under Fourteenth Amendment and state constitution are
identical); City of Chicago v. Rhine, 2 N.E.2d 905, 908 (Ill. 1936)
(simultaneously analyzing federal and state equal protection claims); Ex
Parte Caldwell, 118 N.W. 133, 134 (Neb. 1908) (upholding under state and
federal constitutions statute prohibiting common labor on Sunday).

The Vermont Supreme Court never adopted an activist stance in
reviewing economic and

<Page 16>

social welfare legislation, and history shows we chose the right course.
We could have relied upon the looser and more activist language that
prevailed in the federal cases in the early twentieth century -- the same
language that the majority relies upon today, ante, at 12 n.4 -- to
substitute our judgment for the Legislature, but wisely we did not.
Unfortunately, we have now resurrected that approach. I can find no
justification for the holding that Article 7 requires a more activist
approach than the Fourteenth Amendment for reviewing social welfare and
economic legislation. We were right in Lorrain, Brigham, and L'Esperance
on this point and should adhere to those precedents.

Finally, concerning the third step of the majority's analysis, I
question whether the majority's new standard is ascertainable, is
consistent with our limited role in constitutional review, and contains
appropriate judicial discretion. As Justice Johnson explains in her
dissent, see post, at 21 n.13, the strength of the federal approach is
that it disciplines judicial discretion and promotes predictability. See
C. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 78
(1996). Indeed, the Oregon courts have followed the federal approach in
this area to avoid a balancing process "of pragmatic considerations about
which reasonable people may differ over time," Kennedy, 666 P.2d at 1321,
and "policy choices disguised as ad hoc evaluations based on comparison of
incommensurable," Schuman, supra, at 227. The majority calls the federal
approach "rigid" at one point, ante, at 23, but then describes it, as
applied in Tanner, as an invitation to subjective judicial
decision-making. Ante, at 24 n.10. The two criticisms are as
inconsistent as any criticisms could be. I accept the former -- rigid --
as accurate, at least in comparison with the wide judicial discretion the
majority claims here as an alternative. The latter -- subjective judicial
decision-making -- is, however, the least accurate criticism the majority
could level.

<Page 17>

Two points about the new standard are particularly troublesome for me.
The majority now requires that legislative classifications be "reasonably
necessary to accomplish the State's claimed objectives." Ante, at 24. In
our imperfect world, few legislative classifications are "necessary," and
most legislation could be more narrowly tailored to the state's objective.
I cannot square this standard with our limited role in constitutional
adjudication. As I noted earlier, while language to this effect appears
in Ludlow, it has never been used as the basis of one of our decisions
until today.

More importantly, I cannot endorse, in this vitally important area of
constitutional review, a standard that relies wholly on factors and
balancing, with no mooring in any criteria or guidelines, however
imperfect they may be. On this point, I agree with Justice Johnson. See
post, at 21 n.13. I accept the majority's assertion that it has attempted
to avoid a standard based on "personal notions," and that all
constitutional adjudication requires reasoned judgment, but I do not
believe that it has succeeded in properly applying the critical
considerations it has identified. Ante, at 25. Instead of mooring its
analysis within the framework of fundamental rights and suspect
classifications, the majority professes to make its new Article 7 standard
"objective and grounded" by requiring courts, in balancing the competing
interests, to "look to the history and `traditions from which [the State]
developed' as well as those `from which it broke.'" Ante, at 25. It is
difficult to conceive that any persons sitting on this Court, whatever
their philosophical persuasions, would be insensitive to the history and
traditions from which Vermont developed, and those from which it broke,
but how this standard will be applied to Article 7 challenges is not at all
predictable. In the end, the approach the majority has developed relies
too much on the identities and personal philosophies of the men and women
who fill the chairs at the Supreme Court, too little on ascertainable
standards that judges of

<Page 18>

different backgrounds and philosophies can apply equally, and very little,
if any, on deference to the legislative branch.

The final irony in this decision for me is that the balancing and
weighing process set forth in the Court's opinion describes exactly the
process we would expect legislators to go through if they were facing the
question before us. We are judges, not legislators.

For the above reasons, I concur in the mandate, but respectfully
disagree with Part II of the Court's decision, the majority's rationale
for reaching this mandate.
 

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Footnotes
 

FN1. The majority's characterization of Brigham is neither fair nor
accurate. The majority states that Brigham "acknowledged the federal
standard," but "eschewed the federal categories of analysis." Ante, at
14. Far beyond "acknowledging" the federal standards, Brigham held
explicitly that they applied under Article 7 -- a holding now implicitly
overruled by the majority decision. Rather than eschewing the federal
standards, we held that the educational financing system advanced no
"legitimate governmental purpose" under any standard. See Brigham, 166 Vt.
at 265, 692 A.2d at 396.

FN2. The majority's statement that suspect class analysis is "often
effectively ignored in our more recent decisions" is inaccurate, unless
our statements that we need not reach the issue in a case somehow
"ignores" suspect-class analysis. Ante, at 15. See, e.g., MacCallum, 165
Vt. at 457 n.1, 686 A.2d at 938 n.1 (in view of our disposition, we need
not reach plaintiff's claim that adopted persons are suspect class).

FN3. My concern about the effect of this decision as a precedent is
heightened by the majority's treatment of the Ludlow decision. It is fair
to say that for some purposes, there have been two versions of the Ludlow
decision. First, there is the one we have described in dicta, usually as a
historical event. See State v. Brunelle, 148 Vt. 347, 351, 534 A.2d 198,
201-02 (1987); Hodgeman, 157 Vt. at 464, 599 A.2d at 1373. This one holds
that Article 7 is "more stringent than the federal constitutional standard
which requires only a rational justification." Brunelle, 148 Vt. at 351,
534 A.2d at 201-02. Second, there is the Ludlow decision that we have
actually used in deciding cases. See, e.g., Choquette, 153 Vt. at 52, 569
A.2d at 459; In re Property of One Church Street, 152 Vt. 260, 263-65, 565
A.2d 1349, 1350-51 (1989). This version of Ludlow holds that the Article
7 standard is the reasonable-relationship test applicable under the
Fourteenth Amendment to the United States Constitution. See Choquette,
153 Vt. at 52, 569 A.2d at 459; see also Lorrain, 160 Vt. at 212, 628 A.2d
at 550 (test under Article 7 is same as that under federal Equal
Protection Clause).

Obviously, these versions of Ludlow are irreconcilable, and only one
can be accurate. In case after case, advocates pursuing Article 7
challenges have tried, and failed, to get us to adopt the first version of
Ludlow as the basis for a favorable decision. The first version has
appeared only in dicta in two isolated cases. Today, seventeen years
after the Ludlow decision, the advocates have finally succeeded, with a
begrudging acknowledgment from the majority that our decisions "have
consistently recited" the federal test and are now wholesale overruled.

In view of this history of treatment of Ludlow, I find incredible the
majority's statement that "Vermont case law has consistently demanded in
practice that statutory exclusions from publicly-conferred benefits and
protections must be `premised on an appropriate and overriding public
interest,'" ante, at 15, quoting Ludlow as if all of our decisions after
Ludlow disingenuously mouthed one deferential constitutional standard but
silently employed a more activist standard. If one general statement
could be made, it would be that we have never actually employed the
standard quoted by the majority in any case, until this one.

My fear is that once we get beyond this controversial decision, we
will end up with two versions of it. Will we go back to minimalist review
when we get a claim of discrimination, for example, between large stores
and small ones, or will the more activist review promised by this decision
prevail? Our history in applying Ludlow says that we will do the former,
which I find to be the more desirable, but a serious blow will have been
dealt to our ability to develop neutral constitutional doctrine.

------------------------------------------------------------------------------
Concurring and Dissenting
 

<Page 3>
 

JOHNSON, J., concurring in part and dissenting in part. Forty years
ago, in reversing a decision that had denied injunctive relief for the
immediate desegregation of publicly owned parks and recreational
facilities in Memphis, Tennessee, a unanimous United States Supreme Court
stated:

The basic guarantees of our Constitution are warrants for the here
and now and, unless there is an overwhelming compelling reason,
they are to be promptly fulfilled.

Watson v. City of Memphis, 373 U.S. 526, 533 (1963).

Plaintiffs come before this Court claiming that the State has
unconstitutionally deprived them of the benefits of marriage based solely
upon a discriminatory classification that violates their civil rights.
They ask the Court to remedy the unlawful discrimination by enjoining the
State and its municipalities from denying them the license that serves to
identify the persons entitled to those benefits. The majority agrees that
the Common Benefits Clause of the Vermont Constitution entitles plaintiffs
to obtain the same benefits and protections as those bestowed upon married
opposite-sex couples, yet it declines to give them any relief other than an
exhortation to the Legislature to deal with the problem. I concur with
the majority's holding, but I respectfully dissent from its novel and
truncated remedy, which in my view abdicates this Court's constitutional
duty to redress violations of constitutional rights. I would grant the
requested relief and enjoin defendants from denying plaintiffs a marriage
license based solely on the sex of the applicants.

The majority declares that the issue before this Court does not turn
on the heated moral debate over intimate same-sex relationships, and
further, that this Court has a constitutional responsibility to consider
the legal merits of even controversial cases. See ante, at 3. Yet,
notwithstanding these pronouncements, the majority elects to send
plaintiffs to an uncertain fate

<Page 4>

in the political caldron of that very same moral debate.(FN1) And to what
end? Passing this case on to the Legislature will not alleviate the
instability and uncertainty that the majority seeks to avoid, and will
unnecessarily entangle this Court in the Legislature's efforts to
accommodate the majority's mandate within a "reasonable period of time."
Ante, at 41.

In 1948, when the California Supreme Court struck down a state law
prohibiting the issuance of a license authorizing interracial marriages,
the Court did not suspend its judgment to allow the Legislature an
opportunity to enact a separate licensing scheme for interracial marriages.
See Perez v. Lippold, 198 P.2d 17, 29 (Cal. 1948) (granting writ of
mandamus compelling county clerk to issue certificate of registry).
Indeed, such a mandate in that context would be unfathomable to us today.
Here, as in Perez, we have held that the State has unconstitutionally
discriminated against plaintiffs, thereby depriving them of civil rights to
which they are entitled. Like the Hawaii Circuit Court in Baehr v. Miike,
No. Civ.91-1394, 1996 WL 694235, at *22 (Haw. Cir. Ct., Dec. 3, 1996),
which rejected the State's reasons for excluding same-sex couples from
marriage, we should simply enjoin the State from denying marriage licenses
to plaintiffs based on sex or sexual orientation. That remedy would
provide prompt and complete relief to plaintiffs and create reliable
expectations that would stabilize the legal rights and duties of all
couples.

I.

My dissent from the majority's mandate is grounded on the government's
limited interest in dictating public morals outside the scope of its
police power, and the differing roles of the judicial and legislative
branches in our tripartite system of government. I first examine the

<Page 5>

State's narrow interest in licensing marriages, then contrast that
interest with the judiciary's fundamental duty to remedy civil rights
violations, and lastly emphasize the majority's failure to adequately
explain why it is taking the unusual step of suspending its judgment to
allow the Legislature an opportunity to redress the unconstitutional
discrimination that we have found.

This case concerns the secular licensing of marriage. The State's
interest in licensing marriages is regulatory in nature. See Southview
Coop. Housing v. Rent Control Bd., 486 N.E.2d 700, 704 (Mass. 1985)
("Licensing is simply a means of regulating."). The regulatory purpose of
the licensing scheme is to create public records for the orderly allocation
of benefits, imposition of obligations, and distribution of property
through inheritance. Thus, a marriage license merely acts as a trigger
for state-conferred benefits. See Priddy v. City of Tulsa, 882 P.2d 81, 83
(Okla. Crim. App. 1993) (license gives to licensee special privilege not
accorded to others, which licensee otherwise would not enjoy). In
granting a marriage license, the State is not espousing certain morals,
lifestyles, or relationships, but only identifying those persons entitled
to the benefits of the marital status.(FN2) See People v. County of
Mendocino, 683 P.2d

<Page 6>
 

1150, 1155 (Cal. 1984) (licensing regulates activity based on
determination of qualification of licensee).

Apart from establishing restrictions on age and consanguinity related
to public health and safety, see 18 V.S.A. 5142 (minors and incompetent
persons); 15 V.S.A. 1, 2 (consanguinity), the statutory scheme at issue
here makes no qualitative judgment about which persons may obtain a
marriage license. See Leduc v. Commonwealth, 657 N.E.2d 755, 756-57
(Mass. 1995) (historical aim of licensure is generally to preserve public
health, safety and welfare). Hence, the State's interest concerning the
challenged licensing statute is a narrow one, and plaintiffs have
prevailed on their constitutional claim because the State has failed to
raise any legitimate reasons related to public health or safety for
denying marital benefits to same-sex couples. See Commonwealth v.
Bonadio, 415 A.2d 47, 50 (Pa. 1980) ("With respect to regulation of
morals, the police power should properly be exercised to protect each
individual's right to be free from interference in defining and pursuing
his own morality but not to enforce a majority morality on persons whose
conduct does not harm others."). In my view, the State's interest in
licensing marriages would be undisturbed by this Court enjoining defendants
from denying plaintiffs a license.

While the State's interest in licensing marriages is narrow, the
judiciary's obligation to remedy constitutional violations is central to
our form of government. Indeed, one of the

<Page 7>

fundamental principles of our tripartite system of government is that the
judiciary interprets and gives effect to the constitution in cases and
controversies concerning individual rights. See Marbury v. Madison, 5
U.S. (1 Cranch) 137, 163, 177-78 (1803); see also Shields v. Gerhart, 163
Vt. 219, 223, 658 A.2d 924, 927-28 (1995) (emphasizing "the preeminence of
the Vermont Constitution in our governmental scheme," which includes right
of citizens under Chapter I, Article 4 to find a certain remedy promptly
and without delay).(FN3)

This power is "not merely to rule on cases, but to decide them."
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995) (emphasis in
original); see Records of the Council of Censors of the State of Vermont
431 (P. Gillies and D. Sanford eds., 1991) (supreme judicial tribunals are
to regard constitution as fundamental law superior to legislative
enactment; consequently, if enactment is repugnant to constitution, judges
are bound to pronounce it inoperative and void). As this Court has stated
on numerous occasions, when measures enacted pursuant to the State's police
powers have no real or substantial relation to any legitimate purpose of
those powers and invade individual "`rights secured by the fundamental
law, it is the duty of the courts to so adjudge, and thereby give effect
to the Constitution.'" State v. Morse, 84 Vt. 387, 394, 80 A. 189, 191-92
(1911) (quoting Mugler v. Kansas, 123 U.S. 623 (1887));

<Page 8>

see Beecham v. Leahy, 130 Vt. 164, 172, 287 A.2d 836, 841 (1972) ("It is
the function of the judicial branch to pass upon the appropriateness and
reasonableness of the legislative exercise of police power."). This Court
emphasized in Morse that "in its last analysis, the question of the
validity of such measures [enacted under the police powers] is one for the
court." 84 Vt. at 394, 80 A. at 191.

The power of courts to fashion remedies for constitutional violations
is well established in both this Court's and the United States Supreme
Court's jurisprudence concerning individual rights and equal protection.
See MacCallum v. Seymour's Adm'r, 165 Vt. 452, 462, 686 A.2d 935, 941
(1996) (holding that statute denying adopted children right to inherit from
collateral heirs violated Common Benefits Clause, and declaring plaintiff
to be lawful heir of estate of collateral relative); Medical Ctr. Hosp. v.
Lorrain, 165 Vt. 12, 14-15, 675 A.2d 1326, 1329 (1996) (determining that
doctrine making husbands liable to creditors for necessary items provided
to wives violated principle of equal protection when applied only to men,
and choosing to abolish doctrine rather than to extend it to both men and
women); see also Heckler v. Mathews, 465 U.S. 728, 740 (1984) (when right
invoked is that to equal treatment, "the appropriate remedy is a mandate of
equal treatment"); Davis v. Passman, 442 U.S. 228, 241-42 (1979) (within
"great outlines" of Constitution, "judiciary is clearly discernible as the
primary means through which rights may be enforced"; unless Constitution
commits issue to coordinate branch, "we presume that justiciable
constitutional rights are to be enforced through the courts").
Particularly in civil rights cases involving discrimination against a
disfavored group, "courts do not need specific [legislative] authorization
to employ a remedy, at law or in equity, that is tailored to correct a
constitutional wrong." Aguayo v. Christopher, 865 F. Supp. 479, 487-88
(N.D.Ill. 1994) (finding unconstitutional on its face statute making
citizenship available to

<Page 9>

foreign-born children of citizen fathers, but not citizen mothers, and
issuing judgment declaring plaintiff to be citizen).

Accordingly, absent "compelling" reasons that dictate otherwise, it is
not only the prerogative but the duty of courts to provide prompt relief
for violations of individual civil rights. See Watson, 373 U.S. at 532-33
(defendants have heavy burden of showing that delay in desegregating
public parks and recreational facilities is "manifestly compelled by
constitutionally cognizable circumstances"). This basic principle is
designed to assure that laws enacted through the will of the majority do
not unconstitutionally infringe upon the rights of a disfavored minority.

There may be situations, of course, when legislative action is
required before a court-ordered remedy can be fulfilled. For example, in
Brigham v. State, 166 Vt. 246, 249, 269, 692 A.2d 384, 386, 398 (1997),
this Court declared that Vermont's system for funding public education
unconstitutionally deprived Vermont schoolchildren of a right to an equal
educational opportunity, and then retained jurisdiction until the
Legislature enacted legislation that satisfied the Court's holding.
Plainly, it was not within the province of this Court to create a new
funding system to replace the one that we had declared unconstitutional.
The Legislature needed to enact legislation that addressed issues such as
the level of state funding for public schools, the sources of additional
revenue, and the framework for distributing state funds. See Act 60, 16
V.S.A. 4000-4029. In finding a funding source, the Legislature had to
consider whether to apply a flat or progressive tax on persons, property,
entities, activities or income. These considerations, in turn, required
the Legislature to consider what state programs would have to be curtailed
to make up for the projected additional school funding. All of these
complex political decisions entailed core legislative functions that were
a necessary predicate to fulfillment

<Page 10>

of our holding. See Brigham, 166 Vt. at 249, 692 A.2d at 386 (devising
system for funding public education lies within prerogative of
Legislature).

A completely different situation exists here. We have held that the
Vermont Constitution entitles plaintiffs "to obtain the same benefits and
protections afforded by Vermont law to married opposite-sex couples."
Ante, at 39. Given this holding, the most straightforward and effective
remedy is simply to enjoin the State from denying plaintiffs a marriage
license, which would designate them as persons entitled to those benefits
and protections.(FN4) No legislation is required to redress the
constitutional violation that the Court has found. Cf. Watson, 373 U.S. at
532 (desegregation of recreational facilities does not present same kind
of cognizable difficulties inherent in desegregating schools). Nor does
our paramount interest in vindicating plaintiffs' constitutional rights
interfere in any way with the State's interest in licensing marriages. Far
from intruding upon the State's narrow interest in its licensing statute,
allowing plaintiffs to obtain a license would further the overall goals of
marriage, as defined by the majority -- to provide stability to
individuals, their families, and the broader community by clarifying and
protecting the rights of married persons, see ante, at 35. Cf. In re
B.L.V.B., 160 Vt. 368, 372, 375, 628 A.2d 1271, 1274-75 (1993) (purpose of
adoption statute read in its entirety is to clarify and protect legal
rights of adopted persons, not to proscribe adoptions by certain
combinations of individuals; denying children of same-sex partners
security of legally recognized relationship with second parent serves no
legitimate state interest).

<Page 11>

The majority declines to provide plaintiffs with a marriage license,
however, because a sudden change in the marriage laws "may have disruptive
and unforeseen consequences," and "uncertainty and confusion could
result." Ante, at 40. Thus, within a few pages of rejecting the State's
doomsday speculations as a basis for upholding the unconstitutionally
discriminatory classification, the majority relies upon those same
speculations to deny plaintiffs the relief to which they are entitled as
the result of the discrimination. See ante, at 37, 39.

During the civil rights movement of the 1960's, state and local
governments defended segregation or gradual desegregation on the grounds
that mixing the races would lead to interracial disturbances. The Supreme
Court's "compelling answer" to that contention was "that constitutional
rights may not be denied simply because of hostility to their assertion or
exercise." See Watson, 373 U.S. at 535. Here, too, we should not
relinquish our duty to redress the unconstitutional discrimination that we
have found merely because of "personal speculations" or "vague
disquietudes." Id. at 536. While the laudatory goals of preserving
institutional credibility and public confidence in our government may
require elected bodies to wait for changing attitudes concerning public
morals, those same goals require courts to act independently and decisively
to protect civil rights guaranteed by our Constitution.(FN5)

<Page 12>

None of the cases cited by the majority support its mandate suspending
the Court's judgment to allow the Legislature to provide a remedy. In
Linkletter v. Walker, 381 U.S. 618, 622 (1965), the issue was whether the
decision in Mapp v. Ohio, 367 U.S. 643 (1961) extending the exclusionary
rule (FN6) to the states through the federal due process clause applied to
all state court convictions that had become final before Mapp. The Court
declined to apply Mapp retroactively, stating that both defendants and the
states had relied upon the decision that Mapp had overruled, that the
fairness of the underlying trials had not been placed at issue, and that
applying Mapp retroactively would severely tax the administration of
justice in state courts. See Linkletter, 381 U.S. at 637-39. After
noting that it was not concerned with "pure" prospectivity because the
exclusionary rule had been applied in Mapp itself, the Court held that new
rules may be applied prospectively "where the exigencies of the situation
require such an application." See id. at 622, 628.

Unlike Linkletter, the issue here is not whether the majority's
holding should be applied retroactively or prospectively, but rather
whether the relief it has promised should be provided

<Page 13>

promptly by this Court or at some uncertain future time by the Legislature.
Neither these plaintiffs, nor any same-sex couples seeking the benefits
and protections of marriage, obtain any relief until the Legislature acts,
or failing that, this Court acts again. Thus, the majority is not applying
its holding on even a purely prospective basis. In any event, assuming
that Linkletter continues to have vitality in cases involving civil rights
violations, see Fairfax Covenant Church v. Fairfax County Sch. Bd., 17
F.3d 703, 709, 710 (4th Cir. 1994) (stating that Supreme Court has recently
cast serious doubt upon practice of departing from traditional rule of
retroactive application, which is "the rule inherent in the judicial
function" of applying and interpreting law in real controversies), the
"unforeseen consequences" alluded to by the majority cannot be considered
"exigencies" warranting relief only at some unspecified future time.

The other two cases cited by the majority also concern whether court
rulings should be applied prospectively or retroactively. In those cases,
the courts weighed the potential consequences of a decision to abrogate
common-law sovereign immunity -- the doctrine declaring that the
government is immune from lawsuits. See Smith v. State, 473 P.2d 937, 950
(Idaho 1970) (applying decision to abrogate doctrine of sovereign immunity
to cases before court but otherwise staying decision until adjournment of
following legislative session to prevent undue hardship to government
agencies that relied on doctrine); Spanel v. Mounds View Sch. Dist. No.
621, 118 N.W.2d 795, 803-04 (Minn. 1962) (staying decision to abrogate
sovereign immunity until following legislative session to prevent hardship
to government agencies that relied on doctrine); cf. Presley v. Miss.
State Highway Comm'n, 608 So. 2d 1288, 1298 (Miss. 1992) (giving
retroactive application to decision finding sovereign immunity act
unconstitutional would pose fiscally disastrous consequences to state
agencies). These courts simply acknowledged that retroactively applying
their holding abrogating sovereign immunity, without affording the

<Page 14>

Legislature an opportunity either to alter insurance coverage or enact an
immunity statute, would have potentially disastrous fiscal consequences
for the state. See Hillerby v. Town of Colchester, 167 Vt. 270, 293, 706
A.2d 446, 459 (1997) (Johnson, J., dissenting) (favoring quasi-prospective
approach that would afford Legislature time to react to holding abrogating
general municipal immunity). That is not the situation here, where no
disastrous consequences, fiscal or otherwise, have been identified.

I recognize that the Legislature is, and has been, free to pass
legislation that would provide same-sex couples with marital benefits.
But the majority does not explain why it is necessary for the Legislature
to act before we remedy the constitutional violation that we have found.
In our system of government, civil rights violations are remedied by
courts, not because we issue "Holy Writ" or because we are "the only
repository of wisdom." Ante, at 43-44. It is because the courts "must
ultimately define and defend individual rights against government in terms
independent of consensus or majority will." L. Tribe, American
Constitutional Law 15.3, at 896 (1978).(FN7)

"`[G]roups that have historically been the target of discrimination
cannot be expected to wait patiently for the protection of their human
dignity and equal rights while governments move toward reform one step at
a time.'" Rosenberg v. Canada, Docket No. C22807 (Ontario Court of
Appeals, April 23, 1998, at 17-18 (quoting Vriend v. Alberta, [1988] S.C.J.
No. 29 (Q.L.), at para. 122). Once a court has determined that a
discriminatory classification has deprived

<Page 15>

plaintiffs of a constitutionally ripe entitlement, the court must decide
if the classification "is demonstrably justifiable in a free and
democratic society, not whether there might be a more propitious time to
remedy it." Id. at 18.

Today's decision, which is little more than a declaration of rights,
abdicates that responsibility. The majority declares that plaintiffs have
been unconstitutionally deprived of the benefits of marriage, but does not
hold that the marriage laws are unconstitutional, does not hold that
plaintiffs are entitled to the license that triggers those benefits, and
does not provide plaintiffs with any other specific or direct remedy for
the constitutional violation that the Court has found to exist. By
suspending its judgment and allowing the Legislature to choose a remedy,
the majority, in effect, issues an advisory opinion that leaves plaintiffs
without redress and sends the matter to an uncertain fate in the
Legislature. Cf. In re Williams, 154 Vt. 318, 318-19, 321, 577 A.2d 686,
686-87 (1990) (statute requiring district court to hold hearings, issue
findings, and advise local legislative bodies concerning alleged police
misconduct violated separation of powers between judicial and legislative
branches by requiring courts to give advisory opinions, upon which
municipalities might or might not act). Ironically, today's mandate will
only increase "the uncertainty and confusion" that the majority states it
is designed to avoid. Ante, at 40.

No decision of this Court will abate the moral and political debate
over same-sex marriage. My view as to the appropriateness of granting
plaintiffs the license they seek is not based on any overestimate (or any
estimate) of its effectiveness, nor on a miscalculation (or any
calculation) as to its likely permanence, were it to have received the
support of a majority of this Court. Rather, it is based on what I
believe are the commands of our Constitution.

II.

Although I concur with the majority's conclusion that Vermont law
unconstitutionally excludes same-sex couples from the benefits of
marriage, I write separately to state my belief that this is a
straightforward case of sex discrimination.

As I argue below, the marriage statutes establish a classification
based on sex. Whether such classification is legally justifiable should
be analyzed under our common-benefits jurisprudence, which until today,
has been closely akin to the federal equal-protection analysis under the
Fourteenth Amendment. Therefore, the State must show that the
classification is narrowly tailored to further important, if not
compelling, interests. Not only do the rationalizations advanced by the
State fail to pass constitutional muster under this or any other form of
heightened scrutiny,(FN8) they fail to satisfy the rational-basis test as
articulated under the Common Benefits Clause.(FN9)

"We have held that the Common Benefits Clause in the Vermont
Constitution, see ch. I, art. 7, is generally coextensive with the
equivalent guarantee in the United States Constitution,

<Page 17>

and imports similar methods of analysis." Brigham, 166 Vt. at 265, 692
A.2d at 395; see also Lorrain, 160 Vt. at 212, 628 A.2d at 550 (test under
Common Benefits Clause is same as test under federal Equal Protection
Clause). Where the statutory scheme affects a fundamental constitutional
right or involves a suspect classification, "the State must demonstrate
that any discrimination occasioned by the law serves a compelling
governmental interest, and is narrowly tailored to serve that objective."
Brigham, 166 Vt. at 265, 692 A.2d at 396. Otherwise, classifications are
constitutional if they are "reasonably related to the promotion of a valid
public purpose." MacCallum, 165 Vt. at 457, 686 A.2d at 937-38.

As the majority states, the marriage "statutes, read as a whole,
reflect the common understanding that marriage under Vermont law consists
of a union between a man and a woman." Ante, at 6. Thus, the statutes
impose a sex-based classification. See, e.g., Brause v. Bureau of Vital
Statistics, No. 3AN-95-6562 CI, *6, 1998 WL 88743 (Alaska Super. Feb. 27,
1998) (prohibition on same-sex marriage is sex-based classification);
Baehr v. Lewin, 852 P.2d 44, 64 (Haw. 1993) (Levinson, J., plurality
opinion) (same). A woman is denied the right to marry another woman
because her would-be partner is a woman, not because one or both are
lesbians. Similarly, a man is denied the right to marry another man
because his would-be partner is a man, not because one or both are gay.
Thus, an individual's right to marry a person of the same sex is
prohibited solely on the basis of sex, not on the basis of sexual
orientation. Indeed, sexual orientation does not appear as a
qualification for marriage under the marriage statutes. The State makes
no inquiry into the sexual practices or identities of a couple seeking a
license.

The State advances two arguments in support of its position that
Vermont's marriage laws do not establish a sex-based classification. The
State first contends that the marriage statutes

<Page 18>

merely acknowledge that marriage, by its very nature, cannot be comprised
of two persons of the same sex. Thus, in the State's view, it is the
definition of marriage, not the statutes, that restricts marriage to two
people of the opposite sex. This argument is circular. It is the State
that defines civil marriage under its statute. The issue before us today
is whether the State may continue to deprive same-sex couples of the
benefits of marriage. This question is not resolved by resorting to a
historical definition of marriage; it is that very definition that is being
challenged in this case.

The State's second argument, also propounded by the majority, see
ante, at 27 n.13, is that the marriage statutes do not discriminate on the
basis of sex because they treat similarly situated males the same as
similarly situated females. Under this argument, there can be no sex
discrimination here because "[i]f a man wants to marry a man, he is barred;
a woman seeking to marry a woman is barred in precisely the same way. For
this reason, women and men are not treated differently." C. Sunstein,
Homosexuality and the Constitution, 70 Ind. L.J. 1, 19 (1994). But
consider the following example. Dr. A and Dr. B both want to marry Ms. C,
an X-ray technician. Dr. A may do so because Dr. A is a man. Dr. B may
not because Dr. B is a woman. Dr. A and Dr. B are people of opposite
sexes who are similarly situated in the sense that they both want to marry
a person of their choice. The statute disqualifies Dr. B from marriage
solely on the basis of her sex and treats her differently from Dr. A, a
man. This is sex discrimination.(FN10)

<Page 19>
 

I recognize, of course, that although the classification here is
sex-based on its face, its most direct impact is on lesbians and gay men,
the class of individuals most likely to seek same-sex marriage. Viewing
the discrimination as sex-based, however, is important. Although the
original purpose of the marriage statutes was not to exclude same-sex
couples, for the simple reason that same-sex marriage was very likely not
on the minds of the Legislature when it passed the licensing statute, the
preservation of the sex-based classification deprives lesbians and gay men
of the right to marry the life partner of their choice. If, as I argue
below, the sex-based classification contained in the marriage laws is
unrelated to any valid purpose, but rather is a vestige of sex-role
stereotyping that applies to both men and women, the classification is
still unlawful sex discrimination even if it applies equally to men and
women. See McCallum, 165 Vt. at 459, 686 A.2d at 939 (Constitution does
not permit law to give effect, either directly or indirectly, to private
biases; when government itself makes the classification, it is obliged to
afford all persons equal protection of the law); Loving v. Virginia, 388
U.S. 1, 8-9, 11 (1967) (statute prohibiting racial intermarriage violates
Equal Protection Clause although it applies equally to Whites and Blacks
because classification was designed to maintain White Supremacy.)(FN11)

<Page 20>

Although Vermont has not had occasion to consider the question, most,
if not all, courts have held that the denial of rights or benefits on the
basis of sex subject the state's action to some level of heightened
scrutiny.(FN12) This is so because the sex of an individual "frequently bears
no relation to ability to perform or contribute to society." Frontiero
v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion). Moreover, in
some cases, such as here, sex-based classifications "very likely reflect
outmoded notions of the relative capabilities of men and women." Cleburne
v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441 (1985).

I do not believe that it is necessary to reach the question in this
case, however, because in my view, the justifications asserted by the
State do not satisfy even our rational-basis standard under the Common
Benefits Clause, which requires that the classification be "reasonably
related to the promotion of a valid public purpose." MacCallum, 165 Vt.
at 457 n.1, 686 A.2d at 938 n.1 (because statute failed to pass
constitutional muster under rational-basis test, no need to determine
whether adopted persons are suspect class).(FN13) In MacCallum, we
invalidated, under

<Page 21>

[continues text of FN13 (see "Footnotes" below)]

<Page 22>

the Common Benefits Clause, a statute denying an adopted person's right of
inheritance from collateral kin, stating that the statute was grounded on
outdated prejudices instead of a valid public purpose. See id. at 460-62,
686 A.2d at 939-41. Rather than blindly accept any conceivable
justification proffered by the State in that case, we carefully considered
the State's rationales to determine whether the discriminatory
classification rested upon a reasonable consideration of legislative
policy. See id. at 457, 459-61, 696 A.2d at 938, 939-40; see also Romer v.
Evans, 517 U.S. 620, 635-36 (state constitutional amendment prohibiting
all legislative, executive, or judicial action designed to protect
homosexuals from discrimination violated Equal Protection Clause under
rational-basis test because it was discriminatory and had no proper
legislative end); Cleburne, 473 U.S. at 450 (ordinance requiring special
use permit for operation of home for mentally retarded violated Equal
Protection Clause under rational basis test because it rested on irrational
prejudice rather than legitimate government purpose).

Before applying the rational-basis standard to the State's
justifications, it is helpful to examine the history of the marriage laws
in Vermont. There is no doubt that, historically, the marriage laws
imposed sex-based roles for the partners to a marriage -- male provider and
female dependent -- that bore no relation to their inherent abilities to
contribute to society. Under the common law, husband and wife were one
person. See R. & E. Builders, Inc. v. Chandler, 144 Vt. 302, 303-04, 476
A.2d 540, 541 (1984). The legal existence of a woman

<Page 23>

was suspended by marriage; she merged with her husband and held no
separate rights to enter into a contract or execute a deed. See id. She
could not sue without her husband's consent or be sued without joining her
husband as a defendant. See id. Moreover, if a woman did not hold
property for her `sole and separate use' prior to marriage, the husband
received a freehold interest in all her property, entitling him to all the
rents and profits from the property. See id.

Starting in the late nineteenth century, Vermont, like other states,
began to enact statutes, such as the Rights of Married Women Act, see 15
V.S.A. 61-69, to grant married women property and contractual rights
independent of their husbands. See Medical Ctr. Hosp. v. Lorrain, 165 Vt.
12, 14, 675 A.2d 1326, 1328 (1996). The Legislature's intent in enacting
the Rights of Married Women Act was to "reject[] the archaic principle
that husband and wife are `one person,'" and "to set a married woman free
`from the thraldom of the common law.'" Richard v. Richard, 131 Vt. 98,
102, 106, 300 A.2d 637, 639, 641 (1973). Thus, we recognized that the
legal existence of married women was no longer merged into that of their
husbands, see Lorrain, 165 Vt. at 15, 676 A.2d at 1329, and that "a
married woman is a `person' under the Constitution of Vermont." Richard,
131 Vt. at 106, 300 A.2d at 641.

Today, the partners to a marriage are equal before the law. See R & E
Builders, 144 Vt. at 304, 476 A.2d at 541 (modern statutes attempt to
accord wives legal rights equal to husbands). A married woman may now
enter contracts, sue and be sued without joining her husband, purchase and
convey property separate from her husband, own property, and collect rents
and profits from it. See Lorrain, 165 Vt. at 15, 675 A.2d at 1329 (women
have property and contractual rights equal to men regardless of their
marital status). As the Legislature enacted statutes to confer rights
upon married women, this Court abolished common-law doctrines arising from
the common law theory that husband and wife were one person and that

<Page 24>

the wife had no independent legal existence. See, e.g., Richard, 131 Vt.
at 106, 300 A.2d at 641 (abolishing interspousal immunity, which was based
on "archaic principle" that husband and wife are one person, to allow
passenger wife to sue husband for personal injuries arising from husband's
negligence in operating automobile).

The question now is whether the sex-based classification in the
marriage law is simply a vestige of the common-law unequal marriage
relationship or whether there is some valid governmental purpose for the
classification today. See MacCallum, 165 Vt. at 460-62, 686 A.2d at
939-41 (State's rationales proffered to validate statutory classification
cannot rest on outdated presumptions not reasonable today when vast
cultural and social changes have occurred). In support of the marriage
statutes, the State advances public purposes that fall into three general
categories.

In the first category, the State asserts public purposes -- uniting
men and women to celebrate the "complementarity" (sic) of the sexes and
providing male and female role models for children -- based on broad and
vague generalizations about the roles of men and women that reflect
outdated sex-role stereotyping. The State contends that (1) marriage
unites the rich physical and psychological differences between the sexes;
(2) sex differences strengthen and stabilize a marriage; (3) each sex
contributes differently to a family unit and to society; and (4) uniting
the different male and female qualities and contributions in the same
institution instructs the young of the value of such a union. The State
relies on social science literature, such as Carol Gilligan's In a
Different Voice: Psychological Theory and Women's Development (1982), to
support its contention that there are sex differences that justify the
State requiring two people to be of opposite sex to marry.

The State attempts to analogize this case to the changes in law
brought about by women's

<Page 25>

participation in the legal profession starting in the 1970s, arguing that
women have brought a different voice to legal theory and practice. The
State also points to United States v. Virginia, 518 U.S. 515, 533 (1996)
(hereinafter VMI), arguing that an institution or community made up
exclusively of one sex is different from a community composed of both. The
goal of diversity has been recognized to justify affirmative action
programs in public broadcasting and education. See, e.g., Metro v.
Broadcasting, Inc. FCC, 497 U.S. 547, 567-68 (1990) (holding that state
interest in racial diversity in broadcasting justified affirmative-action
racial classification); Regents of Univ. of Calif. v. Bakke, 438 U.S. 265,
311-319 (1978) (opinion of Powell, J.) (endorsing race classification in
university admission as legitimate means of achieving diversity).
Similarly, the recognition that women may contribute differently from men
is a valid argument for women's full participation in all aspects of
public life. The goal of community diversity has no place, however, as a
requirement of marriage.

To begin with, carried to its logical conclusion, the State's
rationale could require all marriages to be between people, not just of
the opposite sex, but of different races, religions, national origins, and
so forth, to promote diversity. Moreover, while it may be true that the
female voice or point of view is sometimes different from the male, such
differences are not necessarily found in comparing any given man and any
given woman. The State's implicit assertion otherwise is sex stereotyping
of the most retrograde sort. Nor could the State show that the undoubted
differences between any given man and woman who wish to marry are more
related to their sex than to other characteristics and life experiences.
In short, the "diversity" argument is based on illogical conclusions from
stereotypical imaginings that would be condemned by the very case cited
for its support. See VMI, 518 U.S. at 533 (justifications for sex-based
classifications "must not rely on overbroad generalizations about
different talents,

<Page 26>

capabilities, or preferences of males and females.").

In the second category, the State asserts, under several different
guises, the public purpose of maintaining the sex-based classification.
First, the State claims an interest in "preserving the existing marital
structure." Second, the State claims an interest in "instructing the young
of the value of uniting male and female qualities." This is mere
tautology. The State's objective is to preserve the status quo, but that
does not address the question of whether the classification can be
justified. Perpetuating the classification, in and of itself, is not a
valid purpose for the classification. See id. at 545 (rejecting as
circular governmental justification that sex-based classification is
essential to governmental objective of single-sex education).

Many of the State's remaining justifications, which I place into a
third category, assume highly questionable public purposes. But because
none of these justifications are even remotely, much less reasonably,
related to the challenged classification, I accept, for the sake of
argument, the premise that each of them concerns a legitimate state
interest.

The State contends, for example, that prohibiting individuals from
marrying a person of the same sex promotes the public purpose of
minimizing custody and visitation disputes arising from surrogacy
contracts because the prohibition may deter use of technologically assisted
reproduction by same-sex couples. Further, the State argues that
increased use of technologically assisted reproduction "may lead men who
conceive children by sexual union to perceive themselves as sperm donors,
without any responsibility for their offspring." Both of these reasons
suffer from the same constitutional deficiency. If the state purpose is
to discourage technologically assisted reproduction, I agree with the
majority that the classification is significantly underinclusive. The
State does nothing to discourage technologically assisted reproduction by
individuals or opposite-sex couples. Moreover, opposite-sex couples may
obtain

<Page 27>

marriage licenses without regard to whether or not they will use
technologically assisted reproduction.(FN14) The public purpose provides no
rationale for the different treatment.

The State also asserts that it has an interest in furthering the link
between procreation and child rearing "to ensure that couples who engage
in sexual intercourse accept[] responsibility for the potential children
they might create." But the State cannot explain how the failure of
opposite-sex couples to accept responsibility for the children they create
relates at all to the exclusion of same-sex couples from the benefits of
marriage. To the extent that couples, same-sex or opposite-sex, will fail
to take responsibility for the children they create, the risk is greater
where the couples are not married. Therefore, denying same-sex couples
the benefits of marriage on this ground is not only arbitrary but
completely at odds with the stated government purpose.

The State further contends that prohibiting individuals from marrying
same-sex partners will deter marriages of convenience entered into solely
to obtain tax benefits or government assistance. Two persons of the
opposite sex are completely free to enter into a marriage of convenience,
however, without the State examining their motives. Indeed, the pool of
opposite-sex couples who may choose to enter into such marriages is much
greater than the pool of same-sex couples. Once again, the public purpose
provides no rationale for treating individuals who choose same-sex
partners differently from those who choose opposite-sex partners.

Although "[a] statute need not regulate the whole of a field to pass
constitutional muster,"

<Page 28>

Benning v. State, 161 Vt. 472, 486, 641 A.2d 757, 764 (1994), there still
must be some rational basis for an underinclusive classification. Here,
none of the alleged governmental purposes within the third category of
State justifications provides a rational basis for treating similarly
situated people differently, or for applying the classification in an
underinclusive manner. See Cleburne, 473 U.S. at 446 (State may not
impose classification where relationship to asserted goal is so attenuated
as to render distinction arbitrary or irrational). The State's
justifications are nothing more than post-hoc rationalizations completely
unrelated to any rational reason for excluding same-sex couples from
obtaining the benefits of marriage.

Finally, the State claims a valid public purpose in adopting a
classification to align itself with the other states. The Vermont
Constitution is freestanding authority, however, and may protect rights
not protected under the federal constitution or other state constitutions.
Brigham, 166 Vt. at 257, 268, 692 A.2d at 391, 397 (recognizing right to
equal education under Vermont Constitution, while acknowledging that this
right is not recognized under federal constitution and is recognized under
only some state constitutions). This Court does not limit the protections
the Vermont Constitution confers on Vermonters solely to make Vermont law
consistent with that of other states. See id. at 257, 692 A.2d at 391
(decisions in other states are of limited precedential value because each
state's constitutional evolution is unique). Indeed, as the majority
notes, Vermont's marriage laws are already distinct in several ways from
the laws of other states.

In sum, the State treats similarly situated people -- those who wish
to marry -- differently, on the basis of the sex of the person they wish
to marry. The State provides no legally valid rationale for the different
treatment. The justifications asserted by the State for the classification
are tautological, wholly arbitrary, or based on impermissible assumptions
about

<Page 29>

the roles of men and women. None of the State's justifications meets the
rational-basis test under the Common Benefits Clause. Finding no legally
valid justification for the sex-based classification, I conclude that the
classification is a vestige of the historical unequal marriage relationship
that more recent legislative enactments and our own jurisprudence have
unequivocally rejected. The protections conferred on Vermonters by the
Common Benefits Clause cannot be restricted by the outmoded conception that
marriage requires one man and one woman, creating one person -- the
husband. As this Court recently stated, "equal protection of the laws
cannot be limited by eighteenth-century standards." See Brigham, 166 Vt.
at 267, 692 A.2d at 396.

III.

This case is undoubtedly one of the most controversial ever to come
before this Court. Newspaper, radio and television media have disclosed
widespread public interest in its outcome, as well as the full spectrum of
opinion as to what that outcome should be and what its ramifications may
be for our society as a whole. One line of opinion contends that this is
an issue that ought to be decided only by the most broadly democratic of
our governmental institutions, the Legislature, and that the small group
of men and women comprising this Court has no business deciding an issue
of such enormous moment. For better or for worse, however, this is simply
not so. This case came before us because citizens of the state invoked
their constitutional right to seek redress through the judicial process of
a perceived deprivation under state law. The Vermont Constitution does
not permit the courts to decline to adjudicate a matter because its subject
is controversial, or because the outcome may be deeply offensive to the
strongly held beliefs of many of our citizens. We do not have, as does
the Supreme Court of the United States, certiorari jurisdiction, which
allows that Court, in its sole discretion, to

<Page 30>

decline to hear almost any case. To the contrary, if a case has been
brought before us, and if the established procedures have been followed, as
they were here, we must hear and decide it.

Moreover, we must decide the case on legal grounds. However much
history, sociology, religious belief, personal experience or other
considerations may inform our individual or collective deliberations, we
must decide this case, and all cases, on the basis of our understanding of
the law, and the law alone. This must be the true and constant effort of
every member of the judiciary. That effort, needless to say, is not a
guarantee of infallibility, nor even an assurance of wisdom. It is,
however, the fulfillment of our pledge of office.
 
 
 

_______________________________________
Associate Justice

-------------------------------------------------------------------------------
Footnotes

FN1. In the 1999 legislative session, while the instant case was
pending before this Court, fifty-seven representatives signed H. 479,
which sought to amend the marriage statutes by providing that a man shall
not marry another man, and a woman shall not marry another woman.

FN2. Although the State's licensing procedures do not signal official
approval or recognition of any particular lifestyles or relationships,
commentators have noted that denying same-sex couples a marriage license
is viewed by many as indicating that same-sex relationships are not
entitled to the same status as opposite-sex relationships. See, e.g., C.
Christensen, If Not Marriage? On Securing Gay and Lesbian Family Values by
a "Similacrum of Marriage", 66 Fordham L. Rev. 1699, 1783-84 (1998) (most
far reaching consequence of legalizing same-sex marriage would be symbolic
shedding of sexual outlaw image and civil recognition of shared humanity);
D. Chambers, What If? The Legal Consequences of Marriage and the Legal
Needs of Lesbian and Gay Male Couples, 95 Mich. L. Rev. 447, 450 (1996)
(allowing same-sex couples to marry would signify acknowledgement of
same-sex couples as equal citizens). This Court has recognized that
singling out a particular group for special treatment may have a
stigmatizing effect more significant than any economic consequences. See
MacCallum v. Seymour's Administrator, 165 Vt. 452, 460, 686 A.2d 935, 939
(1996) (noting that symbolic and psychological damage resulting from
unconstitutional classification depriving adopted children of right to
inherit from collateral kin may be more significant than any concern over
material values). The United States Supreme Court has also recognized
this phenomenon. See Romer v. Evans, 517 U.S. 620, 634 (1996) (laws
singling out gays and lesbians for special treatment "raise the inevitable
inference that the disadvantage imposed is born of animosity toward the
class of persons affected"); Heckler v. Matthews, 465 U.S. 728, 739-40
(1984) (stigmatizing members of disfavored group as less worthy
participants in community "can cause serious noneconomic injuries . . .
solely because of their membership in a disfavored group"). Because
enjoining defendants from denying plaintiffs a marriage license is the
most effective and complete way to remedy the constitutional violation we
have found, it is not necessary to reach the issue of whether depriving
plaintiffs of the "status" of being able to obtain the same
state-conferred marriage license provided to opposite-sex couples violates
their civil rights.

FN3. Unlike the Vermont Constitution, see Vt. Const. ch. II, 5
("The Legislative, Executive, and Judiciary departments, shall be separate
and distinct, so that neither exercises the powers properly belonging to
the others."), the United States Constitution does not contain an explicit
separation-of-powers provision; however, the United States Supreme Court
has derived a separation-of-powers requirement from the federal
constitution's statement of the powers of each of the branches of
government. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721-22 (1986).
Because we have relied upon federal separation-of-powers jurisprudence in
interpreting Chapter II, Section 5, see Trybulski v. Bellows Falls
Hydro-Elec. Corp., 112 Vt. 1, 7, 20 A.2d 117, 120 (1941), I draw upon
federal case law for analysis and support in discussing
separation-of-powers principles. See In re D.L., 164 Vt. 223, 228 n.3,
669 A.2d 1172, 1176 n.3 (1995); see also In re Constitutionality of House
Bill 88, 115 Vt. 524, 529, 64 A.2d 169, 172 (1949) (noting that judicial
power of Vermont Supreme Court and United States Supreme Court is same).

FN4. I do not misinterpret the majority's holding. See ante, at 41.
I am aware that the Legislature is not obligated to give plaintiffs a
marriage license, or any other remedy for that matter. It is this Court,
not the Legislature, that has the duty to remedy the constitutional
violation we have found. We are left to speculate why the majority is not
enjoining defendants from denying plaintiffs the regulatory license that
they seek and that would entitle them to the same benefits and protections
to which they are entitled under the majority's holding.

FN5. The majority states that my analogy to the circumstances in
Watson is "flawed" because (1) we are not confronting the evil of
institutionalized racism; and (2) our ruling today is "decidedly new
doctrine." Ante, at 42. The majority's first point implies that our duty
to remedy unconstitutional discrimination is somehow limited when that
discrimination is based on sex or sexual orientation rather than race. I
would not prioritize among types of civil rights violations; our duty to
remedy them is the same, once a constitutional violation is found.

Regarding the second point, the Court in Watson enunciated "the usual
principle that any deprivation of constitutional rights calls for prompt
rectification," stating further that the unavoidable delay in implementing
the desegregation of schools ordered in Brown v. Board of Educ., 347 U.S.
483 (1954) was "a narrowly drawn, and carefully limited, qualification upon
usual precepts of constitutional adjudication and is not to be
unnecessarily expanded in application." 373 U.S. at 532-33. The majority
has not explained why it is diverging from that basic principle in this
case. Further, as both the majority and concurrence acknowledge, see ante,
at 36-38; ante, at 6 (Dooley, J., concurring), allowing same-sex couples
to obtain the benefits and protections of marriage is a logical extension
of Vermont's legislatively enacted public policy prohibiting
discrimination on the basis of sex and sexual orientation, see 1991, No.
135 (Adj. Sess.), decriminalizing consensual homosexual conduct between
adults, see 1977, No. 51, 22, and permitting same-sex partners to adopt
children, see 15A V.S.A. 1-102(b) (codifying holding in B.L.V.B., 160
Vt. at 369, 628 A.2d at 1272, which allowed same-sex partner of natural
parent to adopt parent's child without terminating parent's rights); 15A
V.S.A. 1-112 (giving family court jurisdiction to adjudicate issues
pertaining to parental rights and responsibilities and child support with
respect to adopted children of domestic partners). Yet, the majority
suggests that there is "wisdom" in delaying relief for plaintiffs until
the Legislature has had a chance to act, ante, at 43, much as the City of
Memphis urged the "wisdom of proceeding slowly and gradually in its
desegregation efforts." Watson, 373 U.S. at 528.

FN6. This rule requires the exclusion of evidence obtained as the
result of unconstitutional searches and seizures.

FN7. Judicial authority is not, however, the ultimate source of
constitutional authority. Within our constitutional framework, the people
are the final arbiters of what law governs us; they retain the power to
amend our fundamental law. If the people of Vermont wish to overturn a
constitutionally based decision, as happened in Alaska and Hawaii, they
may do so. The possibility that they may do so, however, should not, in
my view, deprive these plaintiffs of the remedy to which they are
entitled.

FN8. The majority misconstrues my opinion. See ante, at 27 n.13. I
do not reach the issue of whether heightened scrutiny is appropriate for
sex-based classifications under the Common Benefits Clause. See Ashwander
v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring) (courts should not formulate rules of constitutional law
broader than is required by precise facts to which they are to be
applied). I mention federal law and that of other states merely to
acknowledge the approach of other jurisdictions on an issue that we have
not yet decided. I analyze the sex-based classification under our current
test for rational-basis review.

FN9. In its brief, the State notes that if the Court declares that
heightened scrutiny is applicable, it might offer additional arguments and
justifications to demonstrate a compelling State interest in the marriage
statutes. Obviously, in its extensive filings both in the trial court and
here, which included a one-hundred-page appellate brief, the State made
every conceivable argument in support of the marriage laws, including what
it perceived to be its best arguments. For the reasons stated by the
majority, see ante, at 4 n.1, 37 n.14, I agree that it would be pointless
to remand this matter for further proceedings in the trial court.

FN10. Under the State's analysis, a statute that required courts to
give custody of male children to fathers and female children to mothers
would not be sex discrimination. Although such a law would not treat men
and women differently, I believe it would discriminate on the basis of sex.
Apparently, the Legislature agrees. By prohibiting consideration of the
sex of the child or parent in custody decisions, see 15 V.S.A. 665(c),
the Legislature undoubtedly intended to prohibit sex discrimination, even
if the rules applied equally to men and women. See Harris v. Harris, 162
Vt. 174, 182, 647 A.2d 309, 314 (1994) (stating the family court's custody
decision would have to be reversed if it had been based on preference that
child remain with his father because of his gender).

FN11. I do not contend, as the majority suggests, that the real
purpose of the exclusion of same-sex partners from the marriage laws was
to maintain certain male and female stereotypes. See ante, at 28 n.13.
As noted above, I agree that the original purpose was very likely not
intentionally discriminatory toward same-sex couples. The question is
whether the State may maintain a classification today only by giving
credence to generally discredited sex-role stereotyping. I believe our
decision in MacCallum says no. See Sunstein, supra, at 23, 27 (exclusion
of same-sex couples from marriage is, in reality, impermissible sex-role
stereotyping, and therefore, is discrimination on basis of sex); J.
Culhane, Uprooting the Arguments Against Same-Sex Marriage, 20 Cardozo
L.Rev. 1119, 1171-75 (1999) (accord).

FN12. See, e.g., United States v. Virginia, 518 U.S. 515, 533 (1996)
(concluding that sex-based classifications are subject to heightened
standard of review less rigorous than that imposed for race or national
origin classifications); Frontiero v. Richardson, 411 U.S. 677, 684, 686
(1973) (plurality opinion) (concluding that sex is suspect classification
under two-part test inquiring whether class is defined by immutable
characteristic and whether there is history of invidious discrimination
against class); Sail'er Inn, Inc. v. Kirby, 485 P.2d 529, 540 (Cal. 1971)
(applying federal two-part test and concluding that sex is immutable trait
and women have historically labored under severe legal and social
disabilities); Hewitt v. State Accident Ins. Fund Corp., 653 P.2d 970, 977
(Or. 1982) (applying federal two-part test and concluding that sex is
immutable personal characteristic and purposeful unequal treatment of
women is well known).

FN13. The question remains why I feel it is necessary to identify the
class of persons being discriminated against in this case if the majority
and I reach the same conclusion. It is important because I have concerns
about the test that the majority devises to review equal-protection
challenges under the Common Benefits Clause. The majority rejects the
notion that the Court should accord some measure of heightened scrutiny
for classifications denying benefits to historically disadvantaged groups.
It argues that the history of the Common Benefits Clause supports the
Court's adoption of a uniform standard that is reflective of the broad
inclusionary principle at its core. Therefore, rather than accord any
particular group heightened scrutiny, it will balance all the factors in
the case and reach a just result. While this notion is superficially
attractive in its attempt to achieve fundamental fairness for all
Vermonters, it is flawed with respect to an equal-protection analysis.
The guarantee of equal protection is about fundamental fairness in a large
sense, but its most important purpose is to secure the rights of
historically disadvantaged groups whose exclusion from full participation
in all facets of society has resulted from hatred and prejudice.

I share Justice Dooley's concern that the new standard enunciated by
the majority may not give sufficient deference to the Legislature's
judgment in economic and commercial legislation. See ante, at 15-16
(Dooley, J., concurring). It is the Legislature's prerogative to decide
whether, for example, to give "optometrists" more protection than
"opticians." See Cleburne, 473 U.S. at 471 (Marshall, J., concurring in
part and dissenting in part). Such classifications ought not to become a
matter of serious constitutional review, even though optometrists and
opticians comprise "a part of the community" and may have vital economic
interests in the manner in which they are regulated. I am certain the
majority would agree with that proposition and argue that its balancing of
all the relevant factors in that kind of a case would not result in
striking down a classification that treated those two groups differently.
But therein lies my concern with the majority's approach. Although we
might agree on the optometrists/opticians classification, a balancing of
all relevant factors in all equal-protection cases puts the rule of law at
"excessive risk." C. Sunstein, Foreward: Leaving Things Undecided, 110
Harvard L. Rev. 4, 78 (1996). As Professor Sunstein explains:

The use of `tiers' has two important goals. The first is to ensure that
courts are most skeptical in cases in which it is highly predictable
that illegitimate motives are at work. . . . The second goal of a
tiered system is to discipline judicial discretion while promoting
planning and predictability for future cases. Without tiers, it would
be difficult to predict judicial judgments under the Equal Protection
Clause, and judges would make decisions based on ad hoc
assessments of the equities. The Chancellor's foot[*] is not a
promising basis for anti-discrimination law.

Id. The majority argues that subjective judgment is required to make
choices about classes who are entitled to heightened review and,
therefore, that a tiered approach is not more precise than the
balancing-of-factors approach. See ante, at 24 n.10. But, in choosing the
suspect class, it would be incumbent upon the Court to articulate its
rationale, thereby providing predictive value in future cases of
discrimination rather than depending on the "perspicacity of judges to see
it." Cleburne, 473 U.S. at 466 (Marshall, J., concurring in part and
dissenting in part).

[*The reference to the Chancellor's foot in the Sunstein quote is from John
Seldon's (1584-1654) critique of equity, which is relevant here:]

Equity is a roguish thing. For Law we have a measure, know what
to trust to; Equity is according to the conscience of him that is
Chancellor, and as that is larger or narrower, so is Equity. 'Tis all
one as if they should make the standard for the measure we call a
"foot" a Chancellor's foot; what an uncertain measure would this be!
One Chancellor has a long foot, another a short foot, a third an
indifferent foot. 'Tis the same thing in the Chancellor's conscience.

J. Bartlett, Familiar Quotations, 263 (15th ed. 1980).

FN14. The State does not address the apparent conflict between the
public purposes it asserts and the legislative policy of this State.
Vermont does not prohibit the donation of sperm or the use of
technologically assisted methods of reproduction. Thus, same-sex partners
and single individuals may use technologically assisted reproduction, all
without the benefit of marriage. It is impossible to accept that the
classification in the marriage statutes serves as a reasonable deterrent to
such methods.