Same-sex marriage in Vermont
|Legal recognition of
† Not yet in effect
Same-sex marriage in Vermont began on September 1, 2009. Vermont was the first state to introduce civil unions in July 2000, and the first state to introduce same-sex marriage by enacting a statute without being required to do so by a court decision. Same-sex marriage became legal earlier as the result of court decisions, not legislation, in three states: Massachusetts, Connecticut, and Iowa.
Either by legislation or court decisions, Vermont was a leader among U.S. jurisdictions in protecting the rights of gays and lesbians in the 1990s. In 1990, it was one of the first states to enact hate crimes legislation that included sexual orientation. In 1992, it added sexual orientation to its anti-discrimination statute. In 1993, the Vermont Supreme Court in a unanimous ruling established second=parent adoption rights allowing someone in a same-sex relationship to adopt his or her partner's biological children. When the legislature reformed the state's adoption statute in 1995, it made same-sex couples eligible to adopt.
On July 22, 1997, three same-sex couples sued the state and the jurisdictions that had denied them marriage licenses. They lost in the trial court on December 19. That court ruling that Vermont's statutes limiting marriage to different-sex couples were constitutional because they served the public interest by promoting "the link between procreation and child rearing".
The Vermont Supreme Court heard the case on appeal and on December 20, 1999, ruled in Baker v. Vermont that the Vermont Constitution entitles same-sex couples to "the same benefits and protections afforded by Vermont law to married opposite-sex couples". The Court did not give the plaintiffs the relief they sought. Instead of ordering state officials to allow same-sex couples to marry, it invited the state legislature to devise a solution:
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.
The Court set no deadline, but suspended its judgement for "a reasonable period".
Mary Bonauto, one of the plaintiffs' attorneys, later described how advocates for same-sex marriage struggled to understand how they had won the judgment but not the right to marry: "[T]hey had this beautiful language in there about the humanity of gay people, but I couldn't believe they had done something that I thought was a political judgment. I had never heard of segregating the word marriage from its rights and protections."
Civil union legislation
When the House Judiciary Committee took up the question in February, 3 of its members favored same-sex marriage while 11 backed something equivalent that was discussed as a "civil rights package". The Committee's chairman said that only the latter could pass the legislature, that only "a broad civil rights bill" was "achievable". The state House of Representatives voted 76 to 69 in favor of legislation creating civil unions with the same legal rights and obligations as marriage on March 15, 2000. The legislation also defined marriage as the union of a man and a woman. Debate in the Senate, where the bill was modified, was restrained. The Senate also defeated two proposed constitutional amendments designed to nullify the Baker decision, one that defined marriage as the union of a man and a woman and another that reserved to the legislature all authority to define the benefits of marriage. The Senate passed the bill 19 to 11 on April 19 and the House passed it on April 25 on a 79 to 68 vote. Governor Howard Dean signed the legislation into law on April 26 without a public ceremony. Immediately after the signing, he held a press conference where he said:
There is much to celebrate about this bill. Those celebrations, as the subject of this bill, will be private. They will be celebrated by couples and their families, but people making commitments to each other.... I believe this bill enriches all of us as we look with new eyes at a group of people who have been outcasts for many, many generations.
The New York Times called Vermont's civil unions "same-sex marriages in almost everything but the name". Bonauto called the legislation "breathtaking". She said out-of-state couples would want to take advantage of the law, even though its impact for them would only be symbolic.
The debate on civil unions was acrimonious and deeply polarizing, touching every corner of the state and spurring a prominent popular backlash that began even before the legislation was signed under the slogan Take Back Vermont.
As soon as civil union legislation was enacted, some clerks expressed reservations about participating. Gerry Longway, the Fairfield town clerk said: "I'm not here to judge what people do, but I don't want to be forced to be part of it. It's like, if I don't believe in capital punishment, they're not going to make me pull the switch." As the July 1 start date approached, most seemed prepared to issue civil union licenses. On June 18, opponents of the legislation placed a full-page in the Burlington Free Press that described civil unions as the work of "the insufferable hubris of the narcissistic gay lobby that would place personal pleasures before public order." The first day for civil unions was a Saturday, when clerks offices are normally closed. A few opened because they had been asked to and a handful of licenses were issued and ceremonies held, including one for Holly Puterbaugh and Lois Farnham, plaintiffs in Baker, at the First Congregational Church in Burlington.
When the civil unions law went into effect on July 1, 2000, Vermont became the third U.S. state after Hawaii and California to offer legal status to same-sex couples, and the first to offer a civil union status encompassing the same legal rights and responsibilities as marriage.
2000 elections and aftermath
The November 2000 elections, with the legislature and governorship at stake, became a referendum on civil unions. Opponents of civil unions adopted "Take Back Vermont" as their slogan and covered the landscape with their signs. It had been used previously to protest a property tax and represented anger at the state government across an array of issues even as the campaign's focus was on civil unions. The campaign hoped to win control of both houses of the Vermont Assembly for the Republicans and possibly even unseat Dean who had been governor since 1991. Garrison Nelson, a political science professor at the University of Vermont, called the fall campaign "a real, honest-to-goodness, social issue bonfire".
Six incumbent legislators who supported civil unions lost in the September primaries, five Republicans and one Democrat. One of the Republicans who lost was two-term Senator Peter Brownell, who described being lobbied by clergy on both sides and asked: "So whose religion am I obligated statutorily to abide by?" The Roman Catholic Bishop of Burlington Kenneth Angell testified against the civil unions bill before a House committee and sent mailings with such headings as "How Would Jesus Vote?" and "Vote Your Informed Conscience." Both sides and candidates at all levels attracted unusual amounts of out-of-state money, including funds from the naational political parties, and the amounts raised broke all records for political races in Vermont.
An election day opinion poll by Voter News Service reported that Vermonters were evenly divided and the election results were mixed. Dean won reelection and the Democrats held their majority in the state Senate, which would block any attempt to repeal of the civil unions legislation, though their margin of control was just 16 to 14. In the primary and the general election combined, 16 incumbent supporters of civil unions were not returned to the legislature. Republicans took control of the House for the first time in 14 years. Bishop Angell viewed it as a defeat:
I was very disappointed. We spent a great deal of time and effort trying to work for certain causes, and it just seems that we were not heard.... I never, ever thought in my lifetime that I would be trying to convince people that marriage is between a man and a woman. They call it civil unions here, but it's nothing more than marriage under another name.
In the first half of 2001, the Vermont House of Representatives passed several bills to undo the civil union legislation. One replaced civil unions with "reciprocal partnerships" that any two persons could form, which could include blood relatives. None had a chance of passing the Senate or winning Dean's signature. At the same time, the Burlington Free Press and the Rutland Herald began printing announcements of civil unions just as they did wedding notices.
The question of the legal status of same-sex relationships was attracting increasing attention in other states. On election day 2000, Nevada and Nebraska passed measures amending their constitutions to define marriage as the union of a man and a woman. Voters in Maine narrowly defeated a measure prohibiting discrimination on the basis of sexual orientation, which its supporters attributed in part to the fact that their opponents "had that little extra bit of ammunition regarding Vermont." In the spring of 2001, the legislatures of Rhode Island and Connecticut held hearings on civil unions legislation. In mid-April, seven couples filed a lawsuit to force Massachusetts to recognize same-sex marriages.
In the first year that civil unions were available, 2,479 same-sex couples formed Vermont civil unions. Only 502 of those couples were Vermont residents. About two-thirds were women. Polls showed the public remained equally divided. Dean commented: "None of the dire predictions have come true. There was a big rhubarb, a lot of fear-mongering, and now people realize there was nothing to be afraid of." Civil unions were hardly mentioned as an issued in the 2002 gubernatorial election, a three-way race won by James Douglas, a Republican who was not interested in renewing the contentious debate. The gains made by opponents of civil unions receded in the legislature in that year as well, as the Democrats grew their majority in the Senate and Republicans gave back some of their 2000 gains in the House.
As of October 8, 2004, 7201 couples had entered into civil unions in Vermont. That November, even as 11 states voted for amendments to their constitutions that would ban same-sex marriage, several of which banned civil unions as well, in Vermont, Democrats took back control of the state House of Representatives and an exit poll conducted for the Associated Press reported that 40% of Vermont voters supported same-sex marriage, an additional 37% backed civil unions, and 21% supported neither. When same-sex marriage supporters in Massachusetts experienced no voter backlash that November, Marty Rouse, campaign director with the advocacy group MassEquality said: "I think Vermont helped to educate Massachusetts. Because of the geographical proximity of the two states, Massachusetts residents got to see that equal marriage rights for same sex couples were not as frightening as some might have thought."
On February 9, 2007, several house members introduced a bill to legalize same-sex marriage, but no action was taken. On July 25, 2007, legislative leaders announced the creation of an 11-member committee to study whether the state should do so. The Vermont Commission on Family Recognition and Protection held 8 public hearings and conducted a seminar at Vermont Law School. Opponents of same-sex marriage did not participate, saying the panel was not impartial. At one hearing, Peter Teachout, a law professor, suggested that the notion of two "tracks", civil union and marriage, could easily be discredited by creating the two without specifying whether same-sex couples or different-sex couples would get which. "Just flip a coin at the end and decide who gets marriage and who gets civil unions. Let's see how many people vote for the two-track system then." Another testified that 8 states recognized Vermont's civil unions as the equivalent of marriage. The commission reported on April 21, 2008, and rather than make a recommendation it said: "It is the role of Vermont's policy-makers and elected officials to read and reflect on this report and in their best judgment determine what steps to take in their role as public servants of the people of Vermont." It detailed the differences between civil unions and marriage and noted that a same-sex couple in a civil union lacked "access to less tangible incidents of marriage, including its terminology (e.g. marriage, wedding, married, celebration, divorce), and its social, cultural and historical significance". It noted that marriage was a status understood in other jurisdictions that lacked any equivalent for civil unions. Opponents said that a popular referendum remained the proper way to resolve the issue.
When Representative Mark Larson, on behalf of 59 co-sponsors, introduced a bill to legalize same-sex marriage on February 6, 2009, Governor James Douglas said economic and budgetary issues should be the legislature's first concern. The State Senate approved its version of the legislation on March 23 by a vote of 26 to 4. Kris Mineau, president for the Massachusetts Family Institute, said that advocates of same-sex marriage "have wisely targeted the New England states, because of their progressive stance on social issues. But we have not conceded defeat." Governor Jim Douglas announced his intention to veto the bill on March 25 for the first time. He said it was unusual to promise a veto before legislation passed but "During these extraordinary times, the speculation about my decision has added to the anxiety of the moment and further diverts attention from our most pressing issues". On April 3, the House passed an amended version of the bill 95–52, several votes shy of a veto-proof two-thirds majority. On April 6, 2009, the Vermont Senate approved the amendments made by the House. The governor vetoed the legislation the same day. He said he was "sending it to the Legislature urging them to do what their consciences lead them to do, most importantly to do it quickly and get on with the business of the state." He said he was not lobbying legislators: "I think this is such an emotional, divisive, personal issue, it's something that individuals have to decide how to vote on based on their personal convictions and faith and I think each legislator ought to decide personally what to do."
On April 7, 2009, the Senate overrode the veto by a 23–5 vote and the House overrode it 100–49, the first time since 1990 that a Vermont governor's veto was overridden. Six of those voting in favor of the legislation were Republicans. House Speaker Shap Smith said that votes changed in the House not because of specific pressures but because "it was to some degree just a vote to recognize the work that the Legislature had done". Representative Jeff Young, who switched his vote, said "I had to vote with my caucus" in order to win support for his other priorities. Brian Brown of the National Organization for Marriage said:
To the millions of Americans who care about marriage, we say get ready: President Obama and Democrats will use Vermont as an excuse to overturn the bipartisan federal Defense of Marriage Act. The next step is to ask the Supreme Court to impose gay marriage on all 50 states.
A comprehensive UCLA March 2009 study concluded that extending marriage to same-sex couples would boost Vermont's economy by over $30.6 million in business activity over three years, which would in turn generate increases in state and local government sales tax and fee revenues by $3.3 million and create approximately 700 new jobs.
A July 2011 Public Policy Polling survey found that 58% of Vermont voters thought same-sex marriage should be legal, while 33% thought it should be illegal and 9% were not sure. A separate question on the same survey found that 79% of Vermont voters supported the legal recognition of same-sex couples, with 55% supporting same-sex marriage, 24% supporting civil unions but not marriage, 18% favoring no legal recognition, and 3% not sure.
A poll conducted by the Castleton Polling Institute between June 3 and June 20, 2013 found that 66% of Vermont voters supported same-sex marriage, while 13% were against and 21% had no opinion.
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