January 27, 2000
In December 1999, the Vermont Supreme Court issued an opinion in
Baker v. State. The court ruled that the exclusion of same-sex couples from
the benefits and protections of marriage violated the state constitution. The court
ordered the Legislature to correct this violation within a reasonable period of time.
The Legislature was told to either legalize same-sex marriage or to enact a
comprehensive domestic partnership act that would confer all of the benefits (and
obligations) of marriage on registered partners.
Leaders of the Legislature decided to give the House
Judiciary Committee the primary responsibility for developing a legislative response to Baker
v. State. That committee held a series hearings for one month. Express
witnesses, advocates, law professors, and others with special expertise were invited to
make presentations to the committee. Two public hearings were also held at which
more than 200 members of the public shared their views on the matter.
Thomas F. Coleman, executive
director of the American Association for Single People, was invited to testify before the
committee as an expert witness on domestic partnership issues and marital status
discrimination. Coleman's testimony was entitled "Responding
to Baker v. State: Legislative Options and Potential Consequences." He
spent several days preparing for the hearing and submitted eight separate documents which
comprised more than 400 pages of material.
Coleman did not advocate for or against the legalization of
same-sex marriage or for any other particular result. Rather, his role was more of
an educator, consultant, and expert witness.
Although he was originally scheduled to testify for only 90
minutes, the legislators kept him on the witness stand for more than three hours.
Since all indications suggested the Legislature was leaning toward adopting a domestic
partnership system, Coleman provided the committee with a basic framework for a
comprehensive domestic partnership act.
By a margin of 8 to 3, the House Judiciary Committee voted on
February 9, 2000, not to legalize same-sex marriage at this time. Instead, a
majority of committee members decided to draft a comprehensive domestic partnership act.
The bill would give domestic partners all of the benefits and protections and
obligations that Vermont state law confers on spouses, family members, and dependents.
While the initial draft of the proposal is currently limited
to same-sex couples and would exclude opposite-sex partners and unmarried blood relatives
from eligibility, some members of the Legislature would like to see Vermont adopt an
inclusive bill open to any two unmarried adults regardless of gender or blood
Representative Alice Nitka, a member of the Judiciary
Committee, expressed disappointment that the draft presented to the committee excluded
unmarried adults who could benefit from a domestic partnership act. She told
committee members: "I envision a bill that is more inclusive rather than
exclusive. If I had my choice, I would include gays and lesbians and heterosexuals
and blood relatives."
Representative John Edwards, also a member of the Judiciary
Committee, later told the St. Albans Messenger that he too favored a more inclusive
bill. On February 12, 2000, the paper reported: "As examples, he pointed to
co-habiting senior citizens, or a mother and daughter living together. In these
instances, financial and emotional burdens the individuals might face alone are made
easier because of their domestic partnership, he said."
Since Baker v. State requires that all of
the benefits and protections of marriage must be given to domestic partners, the
Legislature has no choice but to enact a comprehensive domestic partnership
act. If gay marriage is not legalized and a domestic partnership act is adopted
instead, the only major policy issue which the 150 members of the House and 30 members of
the Senate will have to decide is who will be eligible to register as domestic
Will Vermont enact a law which excludes unmarried
heterosexual couples or will it be gender neutral? Will the new law be limited to
sexual relationships or will unmarried blood relatives be allowed to participate
too? In other words, will legislators vote for an inclusive bill or a restrictive
bill? An informative essay, "What's Wrong with
Excluding Opposite-Sex Couples from Domestic Partnership" was included among the
materials given to the House Judiciary Committee.
During the week of February 21, 2000, the Judiciary Committee
plans to vote on who will be eligible for domestic partnership protection in
Vermont. Will it be a "gays only" law? Will unmarried heterosexual
couples, including seniors, be allowed to participate or will Vermont force them to marry
in order to gain legal protections under state law? Will interdependent unmarried
adults who are related by blood be eligible, or will domestic partnership give greater
legal protection to sexual relationships than unmarried blood relationships?
Eventually, the entire Legislature will have to answer these policy questions.
An essay on this topic focuses on the major policy questions
to be decided when eligibility criteria are being debated. See "Who's In and Who's Not: Some Questions to Consider as Vermont
Ponders Whether to Pass an Inclusive or Restrictive Domestic Partnership Law."
The following is a list of documents submitted by AASP to the
House Judiciary Committee. Each document contained a short summary of its contents
and how the materials inside pertained to the issue on the legislative agenda in Vermont,
namely, how to respond to Baker v. State.
Testimony of Thomas F. Coleman
Some Potential Effects of the
Legalization of Same-Sex Marriage
A Domestic Partnership Act for
the State of Vermont
Marital Status and
Households of Adults in Vermont and the USA,
with Special Emphasis on
A Global View:
Domestic Partnership Laws in Other
Report of the Commission on
Sexual Orientation and the Law
Legislative Actions in
Sessions 1994 to 1999
Tulane Law Review:
"The Hawaii Legislature Has
Compelling Reasons to
Adopt a Comprehensive Domestic
Domestic Partnership Bills Pending
in States Throughout the Nation