Legislative Considerations:
Some Potential Effects of the
Legalization of Same-Sex Marriage
in the State of Vermont

Potential Conflict with Federal Government

The Defense of Marriage Act was signed into law by President Clinton on September 21, 1996. It declares that for purposes of federal law "‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife."

Some 30 states have passed similar laws in anticipation of the legalization of same-sex marriage in one or more other states. These "mini DOMA" statutes are intended to prevent the legalization of same-sex marriage in one state from having effect within the borders of a state which has passed such restrictive legislation.

The question arises as to what conflict might arise with the federal government or with other states if the Vermont Legislature were to remove the current gender restriction from its marriage laws and thus to legalize same-sex marriage in Vermont.

While no one can accurately predict whether state or federal courts would require the federal government or other states to give legal recognition to such marriages performed in Vermont, it is not hard to imagine the types of federal and interstate conflicts which may arise if the Vermont Legislature were to legalize same-sex marriage.

The federal government gives block grants to states. It also gives grants and loans to private businesses. Some of these federal grants and loans may use the term "marriage" in some of the terms and conditions or program specifications.

In view of DOMA, what will happen with respect to the administration of these grants and loans if Vermont legalizes all marriages regardless of gender? How will the federal government determine if a portion of the loan or grant is being used illegally (per DOMA)? Will the state have to set up two separate auditing and accounting systems? Will the federal government require that the gender of each recipient be determined by getting proof via a birth certificate? Will the state and the federal government become embroiled in litigation over these issues in a myriad of contexts?

Potential Effects on Private Employers

Also, what would the effect be on private employers? The federal government exempts employment benefits to a "spouse" from income tax. An employer may not deduct tax from the employee's paycheck for benefits going to the spouse of an employee. It must deduct tax for benefits to domestic partners of employees (with certain exceptions). If Vermont legalizes same-sex marriage, what will private employers in Vermont do? Will they claim that DOMA is unconstitutional and not deduct and then be sued by the federal government? Will they deduct and then be sued by the employee and by unions? How will they legally determine if the employee and his/her spouse are opposite-sex married couples? Some names can be male or female. Some women look like men and vice versa. You can't always go by looks, and the law is not based on names or looks, but on the legal sex (male or female) of the individual. Will all employers in Vermont have to require all spouses to show proof of gender with their birth certificates just to be sure they are acting within the requirements of federal law?

Potential Conflicts with Other States

And what about Interstate Compacts? If Vermont has a written compact with another state for the exchange of prisoners, lets say, will the other state be reluctant to accept married prisoners from Vermont for housing in the other state for fear that they would be sued if they did not give conjugal visits to the prisoner and "spouse" if they find out after the transfer that the marriage is a same-sex marriage (assuming the other state provides for conjugal visits). Also, will other states be reluctant to transfer a prisoner to Vermont for fear that the prisoner may enter into a same-sex marriage while in Vermont and then will claim it is a legal marriage when he returns to the home state? There are other Interstate Compacts which use the term "marriage" in them. How will these compacts be interpreted if the other state has a enacted a "mini-DOMA" statute? Will Vermont wind up in litigation with dozens of states over the implementation of these compacts?

Also, there is the matter of Uniform State Codes. When they were adopted by the states, everyone assumed that the term "marriage" meant a male-female relationship. It was an assumed part of the law. What happens if Vermont broadens the term to include same-sex marriages? The interpretation and implementation of these various codes would no longer be "uniform."

Potential Effect on Teenage Children of Divorced Parents

Vermont law allows persons between the ages of 16 and 18 to marry if only one of the parents consents. This statute was probably intended to be used in situations when a teenage girl was pregnant.

The legalization of same-sex marriage in Vermont would apply this statute to situations not involving pregnancy. A non-custodial parent, possibly living in another state, could legally give consent to a 16 year old to marry a person of the same sex. Such consent would appear to be effective even if the custodial parent were to object.

Potential Effects on Annulment Law

At common law, a party to a marriage could seek an annulment if the spouse failed to or refused to consummate the marriage. Whether a marriage had been consummated was dependent on whether the man and woman had engaged in an act "sexual intercourse."

Vermont has codified this common law principle in 15 V.S.A. § 515 which allows annulment on the ground of "physical incapacity" of a party.

If "sexual intercourse" between a man and a woman is a ground for annulment of a heterosexual marriage, then how will such a court determine if a female-female marriage or a male-male marriage has been consummated? 

Potential Effects on the Presumption of Paternity

In Vermont, as in many other states, a child born to a married woman is presumed to be the biological child of her husband. In some states, such as California, the presumption is conclusive. In Vermont, it may only be a rebuttable presumption.

If same-sex marriage is legalized in Vermont, how will this presumption apply to children born to a woman who is married to another woman?

Conclusion

The Legislature and Governor may decide to legalize same-sex marriage and deal with these problems when they arise.

Maybe government officials in Vermont are willing to lead a national fight for same-sex marriage rights, engaging in any and all necessary litigation with the federal government and other states to advance this civil rights cause. Maybe they are willing to let the Vermont courts resolve intra-state problems on a case-by-case basis. Perhaps legalizing same-sex marriage in Vermont will force an answer to many of the questions mentioned above.

The purpose of this memo is to call attention to some of the potential ramifications of legalizing same-sex marriage so that legislators may make an informed decision in response to the Baker decision.