Basic Framework of a |
The Legislature has several alternatives. It could take no action at all, or defer final decision- making until next year. It could begin the process of putting a constitutional amendment on the ballot to give voters an opportunity to reverse the Baker decision. It could pass a bill removing the current gender restriction from the state’s marriage laws, thereby legalizing same-sex marriage in Vermont. Another alternative would be to pass a comprehensive domestic partnership act giving unmarried couples who meet eligibility criteria all the benefits and obligations of marriage under state law. In the event the Legislature chooses a domestic partnership alternative, it would be helpful for lawmakers to review the basic framework for such an act as a starting point for their deliberations on the substantive provisions of such legislation. This memo is intended to serve such a purpose. Title This section would state that the act shall be known as the "Comprehensive Domestic Partnership Act of 2000" or whatever other name may be selected.
This section would describe the purpose of the act and would contain factual findings made by the Legislature in support of the passage of this act.
A paragraph could state that the act was adopted in response to the decision of the Vermont Supreme Court in Baker v. State. It could be followed by several passages from the court’s opinion which the Legislature considers relevant to this act. In Baker, the Supreme Court held that "the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law." (emphasis added.) The court also stated that "[w]hether 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." The court stressed that "[w]hatever system is chosen, however, must conform with the constitutional imperative to afford all Vermonters the common benefit, protection, and security of the law." (emphasis added) The court suggested that the common benefits clause of the Constitution may not be violated by a comprehensive domestic partnership act "if a case of necessity can be established." Other language from the opinion indicates that a decision to adopt a domestic partnership act rather than legalizing same-sex marriage would be constitutional if the legislation had a "reasonable relation to the public purpose in the light of contemporary circumstances."
This section would contain specific factual findings which the Legislature believes justifies its decision to establish a comprehensive domestic partnership act, deferring a final decision as to whether to legalize same-sex marriage to some future legislative session which may find that circumstances warrant such action. A paragraph could make reference to the three weeks of testimony taken by the House Judiciary Committee, listing some of the witnesses who testified and briefly summarizing the topics covered during their testimony. The section could then list the factual findings made by the Legislature, as a result of these hearings and its own independent research, which justify its decision to enact this statute. It could summarize some of the potential adverse consequences to the state, e.g., ongoing conflict and litigation with the federal government and other states which express prohibit recognition of same-sex marriages, if Vermont were to legalize same-sex marriage at this time. A paragraph could emphasize that the Legislature is attempting to comply with the mandate of the court "with all deliberate speed" but that current circumstances (e.g. DOMA, interstate compacts, uniform state laws) necessitate passage of this act because there are strong policy reasons that currently dictate against legalizing same-sex marriage at this time. This section could also include any other findings which would support a legislative decision to make the domestic partnership act less than fully parallel to marriage law. In other words, if the minimum age is different in any respect, or if any benefits and obligations which normally are associated with marriage are not going to be associated with domestic partnership, factual findings could be included to justify such a decision. For example, the Legislature may establish 18 the minimum age for domestic partnership and not include a provision for a 16 or 17 year old to register as a domestic partner with the permission of one parent. If this deviation exists, some justification would be required, such as the fact that the current provision for marriage by a 16 or 17 year old was intended for use in situations when a prospective bride is pregnant and the prospective groom was is biological father. Such a situation would not exist for same-sex partners. Finally, although there would be no need to justify its decision to do so, the Legislature might want to include some factual findings as to why it decided to make domestic partnership gender neutral. For example, it could state that the Legislature is trying to make the situation in Vermont as equal as possible for same-sex and opposite-sex couples and that it is primarily the federal and interstate conflicts with same-sex marriage that necessitated continuing the gender restriction in the state’s marriage laws at this time. However, since there would be no conflict with the federal government or other states in a gender-neutral domestic partnership act, there is no necessity to exclude opposite-sex couples from the domestic partnership act. Furthermore, since opposite-sex couples would be assuming all state-law obligations of marriage by registering as domestic partners, there is no valid policy reason to eliminate this option for opposite-sex couples. Furthermore, the Legislature could indicate that evidence from domestic partnership registries and employment benefits programs, including some in Vermont, demonstrate that many opposite-sex couples want domestic partnership protections and are willing to assume the obligations required by these programs. Substantive Provisions A comprehensive domestic partnership act would contain, in addition to a statement of purpose and findings, various substantive provisions, including: (1) a section containing definitions, including eligibility criteria for domestic partnership; (2) a section describing how a domestic partnership is established; (3) a section describing how a domestic partnership is dissolved; (4) a section describing the rights and obligations of domestic partners; (5) a section preempting state and local laws to the contrary; (6) a section authorizing the commissioner of health to perform certain functions with respect to this act; (7) a section prohibiting discrimination on the basis of marital status and domestic partnership status; (8) a section dealing with reciprocity; and (9) a section dealing with religious organizations. Provisions of S248 A proposed domestic partnership bill is pending. While S248 is a good point of reference, it is deficient in several respects and as a result it may not comply with the mandate of the court in Baker. It could be amended or a new bill could be filed which would correct these defects. First, it does not contain any statement of purpose and findings. Such a section would be crucial to support the validity of a domestic partnership act. Second, it contains one major requirement for domestic partners that is not required of married couples, namely, that they must share a common residence. Spouses may be legally married even though one of them leaves a common residence and does not intend to return. Imposing a common residence requirement for same-sex couples or other domestic partners may be unconstitutional since such a requirement is not imposed on married couples under current law. Third, the preemption clause of this bill does not preempt local laws that are contrary to the act. Preemption of inconsistent locals laws may be desirable. Fourth, since Vermont grants reciprocity to out of state marriages, S248 is deficient because it does not grant reciprocity to domestic partnerships registered under a similar comprehensive domestic partnership scheme in other states. Although no such statutes currently exist, it is reasonable to assume that one or more states will enact a similar statute in the near future. It may be inappropriate, however, for a comprehensive domestic partner statute in Vermont to grant full reciprocity within Vermont to domestic partners from other statutes who have registered under limited domestic partnership laws. Such couples did not intend to assume all of the obligations of marriage when they registered in order to obtain limited benefits in their own states. Imposing all marital obligations on such couples when they move to or visit Vermont could be viewed as punitive. Any reciprocity clause would have to take this into account. Fifth, S248 does not prohibit the state, local governments, and private businesses from discriminating on the basis of marital status or domestic partnership status. If same-sex marriage were legalized, public agencies and private businesses operating inside Vermont would have to treat same-sex and opposite-sex married couples alike. To satisfy the mandate of Baker, a comprehensive domestic partnership act (or ancillary legislation enacted at the same time) would have to create the same result. This could be accomplished by adding "marital status" and "domestic partner status" to state civil rights statutes prohibiting discrimination in employment, housing, insurance, credit, other business practices, and government services. However, this would still not prohibit private employers from discriminating against domestic partners in employee benefits since most benefits programs are immune from state civil rights statutes. The most that Vermont could do to eliminate such discrimination by private businesses would be to enact an Equal Benefits Act, similar to laws recently adopted by San Francisco, Los Angeles, and Seattle. The law would prohibit businesses which contract with the State of Vermont or with municipalities within Vermont from discriminating against domestic partners in any of their employment or other business practices. In other words, if such businesses grant benefits or privileges to spouses of employees or customers, they would be required to do the same to domestic partners or employees or customers. Any attempt by the state to directly regulate employee benefits programs of businesses which do not contract with the state or local municipalities within the state would be preempted by federal law (ERISA). Sixth. S248 excludes from its protections two unmarried adults who are blood relatives. Such a restriction in marriage law may be appropriate because marriage presumes a sexual relationship between the parties. However, the same is not true for domestic partnership. For example, the recent "Equal Benefits Ordinance" laws in Seattle and Los Angeles do not exclude unmarried blood relatives from their provisions. Unmarried blood relatives may register as domestic partners with the public registry of the County of Los Angeles. The domestic partner benefits plans at Bank of America, Nations Bank, Merrill Lynch, and Bank Boston, do not exclude unmarried blood relatives. Canada is considering extending its "common law spouse" statutes to cover all "relationships of dependency" including same and opposite-sex couples as well as two blood relatives who are interdependent. Vermont could adopt a broad definition of "domestic partnership" which would allow any two adults who meet the eligibility criteria, including blood relatives, to register and obtain protections. By doing so, the state would be removing the presumption of sexual conduct from domestic partner relationships, recognizing that such relations may or may not have a sexual dimension. The state would also be making a policy decision that close family relationships which are nonsexual are as deserving of legal protection as relationships which have a sexual component. Conclusion The Legislature may decide to legalize same-sex marriage during this legislative session. However, if it chooses the other alternative suggested by the Supreme Court, namely, domestic partnership, the issues discussed in this memo may provide guidance in drafting a constitutional law.
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