The Vermont Supreme Court ruled this week that gay couples are entitled to the same "benefits and protections" as heterosexual married couples. Earlier this month, Hawaii's high court determined that the state was not required to grant marriage licenses to gays and lesbians. Why the different results? And what legal effect will the Vermont decision have on the rest of the nation?
Like virtually all states, Vermont and Hawaii have "equal protection" clauses in their constitutions that guarantee all citizens the same treatment under the law. (These clauses are similar to the equal protection provision of the U.S. Constitution's 14th Amendment, which was used to secure civil rights for racial minorities, women, and other groups.) In both states, gay couples sued, asserting that the ban on same-sex marriage deprived them of equal protection: They argued that it blocked their access to the same rights and obligations that heterosexual couples are granted through marriage, including health and pension benefits, inheritance rights, joint decision-making power, and shared parental and financial responsibilities.
In 1993, the Hawaii Supreme Court ruled that, indeed, denial of same-sex marriage amounted to discrimination on the basis of sex and sexual orientation. Unless the state could demonstrate to lower courts that it had a valid interest in denying gay marriages, continued discrimination would be unconstitutional. A state judge ruled in 1996 that the state had failed to meet this requirement, which seemed to pave the way for gay marriage. The state appealed, but before the case reached the Supreme Court again, Hawaii voters passed a constitutional amendment exempting marriage from the equal protection clause. Hawaii's Supreme Court had no choice but to throw out the gay couples' claims to marriage licenses.
With reasoning similar to that of the Hawaii courts, the Vermont Supreme Court determined that the legislature "was constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law." (Vermonters have not passed an amendment like Hawaii's exempting marriage from the equal protection clause, although they could.) The Vermont Supreme Court left it to the legislature to decide whether to extend these rights to gay couples through state-recognized marriage or a new category of domestic partnership.
If Vermont recognizes gay marriages, the national ramifications will be immediate because all the states recognize marriages performed in other states. Gay couples would travel to Vermont to get married, and then upon returning home, demand that their states recognize the unions.
Anticipating this strategy, Congress passed the "Defense of Marriage Act" in 1996, declaring that states would not be compelled to recognize same-sex unions performed elsewhere. Since Hawaii's 1993 decision, 29 states have passed preemptive laws saying they would not accept gay marriages from other states.
The courts will have to decide whether these laws are constitutional. The U.S. Constitution requires each state to give "full faith and credit ... to the public Acts, Records, and judicial Proceedings of every other state." The Supreme Court has held that this "full faith and credit" provision covers divorce--otherwise, you might have to get re-divorced from your former spouse if you moved to a new state. If the Supreme Court extends the provision to cover marriage, the federal Defense of Marriage Act--as well as the state laws barring same-sex unions--would quite likely be deemed unconstitutional. If not, the issue would be left to each state to decide.
If Vermont declines to recognize gay marriage, it will have to define a new category of domestic partnership that provides precisely the same state protections and benefits as marriage. But this domestic partnership would not necessarily yield rights for gay couples from other states or from the federal government. Many federal benefits and responsibilities depend on the "marriage" classification, which has a privileged constitutional status that domestic partnership does not. Marriage is considered so fundamental a right, in fact, that it cannot be withdrawn from any citizens--even prisoners.
Although the wording of constitutional equal protection clauses varies from state to state, and Vermont's interpretation is not a binding precedent, judges often look to courts in other states for guidance on how to rule in similar circumstances. And the Vermont ruling provides a basis for the argument that the U.S. Constitution's equal protection clause should be interpreted to guarantee marriage rights for gays nationally. So, regardless of the Vermont legislature's course of action, gay rights advocates will use the ruling in other court battles.
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