Thoughts on the Impending Departure Off Vermont's First Woman Justice
| Jurisdiction | Vermont,United States |
| Citation | Vol. 2011 No. 06 |
| Publication year | 2011 |
Summer 2011-#3. Thoughts on the Impending Departure off Vermont's First Woman Justice
Volume 37, No. 2
Summer 2011
We thank and honor Associate Justice Denise Johnson for her twenty-one years of service on Vermont's Supreme Court. For Vermonters committed to full enjoyment of human and civil rights for all. Justice Johnson's leadership and vision has been invaluable in progress made to date. Before her appointment to the Supreme Court in 1990, from 1980-88, Justice Johnson served as an Assistant Attorney General for Civil Rights and then Chief of the Public Protection Division. She then entered private practice while also serving as the first chair of the Vermont Human Rights Commission.
For those of us of a certain age, cast your mind back to 1981, the year that President Ronald Reagan appointed Sandra Day O'Connor to sit on the United States Supreme Court. Justice O'Connor was the 102nd member of the Court, but its first woman. Future Justice Johnson was then the director of the AG's Civil Rights Division. She was also my supervisor and mentor. I remember well the pride and excitement that she expressed that day.
It was not until 1978 that the first one hundred women had gained admission to the Vermont Bar. By 1981, women were still a tiny minority of the 1,250 lawyers in Vermont. There were virtually no female jurists in Vermont, and those few were elected probate or assistant judges. Vermont's first female trial court judge was not appointed until 1984 with the second appointed in 1988.
This landscape has changed dramatically over the past thirty years, with Justice Johnson leading the way. As reported recently, Vermont has the highest percentage of female jurists in the country, nearly 40%, well above the national average of 27%.
Justice Johnson brought a significantly feminist perspective to the Supreme Court. Shortly after her appointment, the Vermont Judiciary and the Vermont Bar Association issued Gender and Justice: Report of the Vermont Task Force on Gender Bias in the Legal System (1991). Justice Johnson was instrumental in this work documenting institutional bias in the justice system against not only female litigants but also female attorneys. This candid assessment led to considerable reform as Vermont prepared to move into the twenty-first century.
Although Justice Johnson often wrote for the full court or at least a majority of the Court, her most memorable opinions may be the forceful, well-reasoned and researched, artfully composed, and highly cogent dissents that she authored during her long tenure on the Court. In order to truly appreciate the intellect and character of our soon to be retiring justice, we review some of her more remarkable dissenting opinions.
Justice Johnson may be most noted for her dissent in the 1999 landmark case of Baker v. State, 170 Vt. 194, 241 -242 (1999). The Court's majority held unconstitutional Vermont's failure to allow same-sex couples to enjoy the common benefits offered to heterosexual couples through civil marriages. The majority rendered a then groundbreaking opinion speaking to our "common humanity" and ruled that the refusal of Vermont to sanction same-sex unions unconstitutionally discriminated against gay and lesbian couples. The majority(fn1) directed the legislature to amend the state's marriage laws with all deliberate speed (citing Brown v. Board of Educatior), the landmark school desegregation case).(fn2) The Court stated that "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."(fn3)
In dissent. Justice Johnson opined that the Supreme Court should immediately enjoin the State's refusal to issue marriage licenses to same sex couples rather than rely on the legislature to change the law. In so doing. Justice Johnson wrote:
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 overwhelmingly compelling reason, they are to be promptly fulfilled.
Watson v. City of Memphis, 373 U.S. 526, 533, 83 S.Ct. 1314, 10 L.Ed.2d 529 (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 170 Vt. at --, 744 A.2d at 867. Yet, notwithstanding these pronouncements, the majority elects to send plaintiffs to an uncertain fate in the political caldron of that very same moral debate. [Footnote omitted.] 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." Id. at -, 744 A.2d at 887.(fn4)
Fortunately for all, the members of the legislature exercised both leadership and courage (which resulted in considerable political...
To continue reading
Request your trial