State constitutional decision-making and principles of equality: revisiting Baker v. State and the question of gender in the marriage equality debate.

• Author: Hanna, Cheryl
• Position: Chief Judge Lawrence H. Cooke Fifth Annual State Constitutional Commentary Symposium

1. INTRODUCTION

   In December 1999, the Vermont Supreme Court issued its decision in Baker v. State, (1) which held that the Vermont marriage law allowing only male-female couples to marry violated the "Common Benefits" Clause of the state constitution, and that same-sex couples must either be allowed to enter into marriage, or some alternative union with legal status and benefits substantially equivalent to marriage. (2) The decision led to the first civil union law in the nation, and eventually to the legalization of same-sex marriage in Vermont. In the years immediately following the decision, (3) and through to today, (4) the Baker decision has received much attention, primarily for its holding that same-sex couples are entitled to the same legal benefits relative to marriage as opposite-sex couples, and also for its historical importance within the larger debate over marriage equality.

   As both state and federal courts consider questions of marriage equality, the constitutionality of the Defense of Marriage Act, and other legal rights of gay and lesbian citizens, it is an opportune time to revisit the Baker decision and to consider what relevance that decision could have to current cases. In this essay, I humbly suggest that the most under-appreciated opinion in Baker is Justice Denise Johnson's concurring opinion in which she unequivocally states that denying same sex couples the right to marry is a "straightforward case of sex discrimination." (5) While there has been a great deal of scholarly discussion that discrimination on the basis of sexual orientation is, at its core, discrimination on the basis of gender, this theory has had little impact on courts considering marriage equality.

   This essay examines the Baker decision with a focus on Justice Johnson's opinion, and explores the current dialogue about the relationship between gender and sexual orientation discrimination. It concludes with a sense that moving forward to issues beyond same-sex marriage, such as sexual identity discrimination and workplace rights, articulating such discrimination within a gendered framework, as well as frameworks of sexual orientation and human rights, might add both depth and dimension to our current understandings of the legal barriers to self-actualization, as we celebrate the 100th anniversary of International Women's Day.

2. BAKER V. STATE

   The Baker case began when three Vermont couples who were denied marriage licenses filed a lawsuit in state court alleging both statutory and constitutional violations. (6) As Beth Robinson, lead counsel in Baker has explained, the legal strategy in the case was to get the court to apply a heightened level of scrutiny under the Common Benefits clause, which is the Vermont Constitution's analog to the Equal Protection clause. (7) To that end, the plaintiffs made essentially three arguments: that heightened scrutiny should apply because the marriage law discriminated on the basis of the protected classification of sex; the law discriminated on the basis of the prohibited classification of sexual orientation, and the law discriminated with respect to a fundamental right. (8) Even absent heightened scrutiny, the plaintiffs argued that the state's primary justification for limiting marriage to only opposite-sex couples--the biological begetting of children--wasn't rational, even when one considered that many married couples do not or cannot reproduce, and that the state's interest in providing a stable home to those children was not at all furthered by forbidding same-sex couples who already had children to legally wed.

   The state argued that under a rational basis review, the law was justified. (9) The principle purpose that the state advanced in justifying the statute was the government's interest in "furthering the link between procreation and child-rearing." (10) Vermont further argued that "since same-sex couples cannot conceive a child on their own, state-sanctioned same-sex unions 'could be seen by the Legislature to separate further the connection between procreation and parental responsibilities for raising children." (11)

   When the court struck down the marriage statute as unconstitutional, rejecting the state's rationale for the law, the decision was largely hailed as a victory for the plaintiffs. In pertinent part, the court held that

   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. (12) Yet, despite this ruling, the court refused to grant an immediate remedy of marriage equality, and instead sent the issue back to the legislature to decide whether formal marriage equality, or a parallel statutory structure granting the same rights and responsibilities to same-sex couples, would be the popular will. (13) "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...." (14) This paved the way for Vermont's Civil Union law, which created a separate, but arguably equal, legal structure for same-sex couples.

   Thus, it has always struck me that there was a curious disconnect between the case's iconoclastic reputation and the actual holding of the case, which was quite moderate, if not conservative. This might explain why the legal analysis in Baker has never played any major role in doctrinal and theoretical discussion of marriage equality in either cases or the academic literature. Not only was it restrained in its remedy, but the decision lacks the kind of precise and careful legal argument that could help guide other courts in grounding decision on marriage equality on pre-existing theories of equality and inclusion.

   The decision, authored by Chief Justice Jeffrey Amestoy, undertook what could be best described as an imprecisely articulated heightened standard of review, finding that "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." (15) This analysis rested primarily on the assertion that all classifications under the Common Benefits clause, whether economic, social, or affecting the rights of particular groups, were subject to heightened scrutiny under the Vermont Constitution. (16) It relied on an amorphous concept of factors and balancing tests, and failed to articulate a standard of review in an analytic framework already familiar to inquiries into invidious discrimination based on group characteristics. Indeed, one only need ponder the majority opinion's last line--beautiful and often quoted--to understand both the celebration and frustration of the opinion itself:

   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. (17) Here, one sees Justice Amestoy intentionally rejecting a framework of difference, and instead trying to universalize the marriage experience to support the outcome. It is the kind of reasoning that both rings true in our hearts and falls deaf on the ears of legal purists.

   Of particular note is the decision's refusal to identify sexual orientation as a suspect classification under the Common Benefits clause, thereby analogizing to tiered scrutiny under Equal Protection analysis, and articulating a theory of equality that would have been of more persuasive value to both other states and federal courts. This criticism was the point of Justice Dooley's concurring opinion, in which he takes the majority to task for not approaching the case explicitly as a civil rights case. (18) For Justice Dooley, the case was about sexual orientation and why gay and lesbian Vermonters should have been treated as a suspect class under the Common Benefits clause. (19) As Justice Dooley noted,

   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 different backgrounds and philosophies can apply equally, and very little, if any, on deference to the legislative branch. (20) For Justice Dooley, the most persuasive and enduring analysis would have addressed directly the question of sexual orientation discrimination implicit in the marriage statute, while preserving the latitude of the legislature to create distinctions that did not implicate otherwise unprotected groups. (21) Thus, Justice Dooley's concurrence is relatively formalistic and doctrinally precise, especially in comparison to Justice Amestoy's more meandering analysis. (22)

   To the extent that the Baker decision did recognize that same-sex couples were entitled to the same benefits of marriage as opposite-sex couples, the decision's place in history is well-deserved. But to the extent that the remedy it offered was not marriage equality, but rather a remand to the legislature to provide either marriage or a parallel structure to marriage, its place in history is...