. . . In concluding that extending the benefits and protections of marriage to the plaintiffs was “simply, when all is said and done, a recognition of our common humanity,” the Baker opinion was intended to resonate with every Vermonter. For in our constitutional system, every Vermonter is a participant and we all live in the same house. We will know we have built well when — in the words of the poet — “underneath that roof there was no distinction of persons, but one family only, one heart, one hearth, and one household.”
— Justice Jeffrey Amestoy (quoting Longfellow’s “Tales of a Wayside Inn”)
The Vermont Supreme Court’s decision in the Baker v. State marriage equality case was big news not just in Vermont but nationally and even abroad when it was announced in December 1999, a few days before the new millennium. Here are some key questions I raise in the second chapter of my book, with answers based on what I found during my research.
What are the similarities between the push for marriage equality and the push for school funding reform?
Both campaigns for reform involved litigation: Lawsuits were brought in Vermont courts alleging violation of state constitutional rights. And in both Vermont Supreme Court rulings that decided the cases, the same basis was found for equity – the Seventh article of Chapter One of the Vermont Constitution, the common benefits clause.
What did the Baker decision say?
In the Baker v. State case, the Vermont Supreme Court ruled unanimously that the common benefits clause entitled same-sex couples to the same marriage rights granted opposite-sex couples. This was a major victory for LGBTQ (lesbian, gay, bisexual, transgender, and queer) advocates not only in Vermont, but nationally. The Vermont legislature moved deliberately, but quickly, despite the intense emotion around the issue, to meet the court’s mandate. After long committee discussions and emotional testimony at public hearings, a bill was drawn up that created a parallel route, “civil unions,” to marriage’s benefits. The bill was signed into law by Gov. Howard Dean.
Even though the Baker decision was hailed as a landmark in the fight for LGBTQ rights, it also disappointed gay rights advocates. Why was that?
The Vermont Supreme Court said that same-sex couples cannot be treated differently from opposite-sex couples when it comes to marriage’s “benefits and protections.” While “civil unions” provided “benefits and protections” equal to those provided through marriage, gay rights advocates argued they were being treated as second-class citizens. Civil unions were not equal to marriage, they said. Full equality would only come when gay couples could marry – not just be joined in a civil union. “Separate but equal” wasn’t acceptable. That led to a second campaign for “equal rights, not just legal rights,” that went on for nearly a decade. A marriage equality bill was finally passed by the Vermont legislature in 2009 – the first time any state had granted equal marriage rights for gay men and women through legislation rather than a court decision.
A good deal of the Baker decision isn’t just about gay marriage – it’s about court process and interpretation. Why is that?
Technically, the Baker decision was unanimous, 5-0. But to the main opinion, written by Chief Justice Jeffrey Amestoy, were attached two separate opinions. They were “concurring” opinions; two justices, were, in effect, saying, “We agree, but….” They were concerned about how the main opinion envisioned application of the common benefits standard in future cases. The three opinions make up an important discussion about how this powerful judicial engine of equity sparking to life could best — and most fairly — be harnessed in the future. Much of what Amestoy wrote in the main opinion is a history lesson on how equity was viewed by Vermont’s founders and how that should affect how we view discrimination — and how we can eliminate it — today.