Baker v. State, 98-032.

CourtUnited States State Supreme Court of Vermont
Citation165 Md. App. 445,744 A.2d 864
Docket NumberNo. 98-032.,98-032.
PartiesStan BAKER, et al. v. STATE of Vermont, et al.
Decision Date20 December 1999

744 A.2d 864
165 Md.
App. 445

Stan BAKER, et al.
STATE of Vermont, et al

No. 98-032.

Supreme Court of Vermont.

December 20, 1999.

744 A.2d 866
Beth Robinson and Susan M. Murray of Langrock Sperry & Wool, Middlebury, and Mary Bonauto, Gay & Lesbian Advocates & Defenders, Boston, Massachusetts, for Plaintiff-Appellants

William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan and Timothy Tomasi, Assistant Attorneys General, Montpelier, for Defendant-Appellee State.

Timothy M. Eustace of Stitzel, Page & Fletcher, P.C., Burlington, for Defendants-Appellees Town of Shelburne and City of South Burlington.

Gregg H. Wilson of Kolvoord, Overton & Wilson, Essex Junction, for Defendant-Appellee Town of Milton.

Harvey Golubock, Montpelier, for Amicus Curiae Vermont Human Rights Commission.

Richard T. Cassidy of Hoff, Curtis, Pacht, Cassidy & Frame, P.C., Burlington, and Evan Wolfson, Lambda Legal Defense and Education Fund, Inc., and Lawson M. Vicario and S. Elizabeth Foster of Gibson, Dunn & Crutcher LLP, New York, New York, for Amici Curiae Vermont Coalition for Lesbian and Gay Rights, et al.

David Rath of Kohn & Rath, Hinesburg, for Amicus Curiae Professors of Legislation and Statutory Interpretation.

Eileen M. Blackwood of Blackwood and Kraynak, P.C., Burlington, David Chambers, White River Junction, and Matthew Coles, American Civil Liberties Union Foundation, New York, New York, for Amici Curiae Parents and Friends of Lesbian and Gay Men, et al.

Peter M. Lawrence of Barr, Sternberg & Moss, P.C., Bennington, for Amici Curiae Vermont Organization for Weddings of the Same-Gender, et al.

William M Dorsch and Beth A. Danon of Mickenberg, Dunn, Sirotkin & Dorsch, Burlington, for Amici Curiae Vermont NOW, et al.

Philip C. Woodward and Karen McAndrew of Dinse, Knapp & McAndrew, P.C., Burlington, for Amici Curiae Vermont Psychiatric Association, et al.

Hal Goldman, Burlington, for Amicus Curiae Take It To the People.

J. Paul Giuliani of McKee, Giuliani & Cleveland, Montpelier, and Dwight G. Duncan, North Dartmouth, Massachusetts, for Amici Curiae New Journey, et al.

Robert H. Erdmann, South Burlington, Jay Alan Sekulow and John P. Tuskey, Virginia Beach, Virginia, and Vincent P. McCarthy, New Milford, Connecticut, for

744 A.2d 867
Amicus Curiae The American Center for Law and Justice

Clarke A. Gravel of Gravel & Shea, Burlington, and Don Stenberg, Nebraska Attorney General, and L. Steven Grasz, Deputy Attorney General, Lincoln, Nebraska, for Amici Curiae State of Nebraska, et al.

Jon R. Eggleston, Burlington, for Amicus Curiae Professors of Law and Jurisprudence.

Duncan F. Kilmartin, Newport, and David R. Huggins, The National Legal Foundation, Memphis, Tennessee, for Amici Curiae Specialty Research Associates, et al.

William M. O'Brien, O'Brien Law Offices, Winooski, Thomas E. McCormick of McCormick Fitzpatrick Kasper & Burchard, Burlington, and Von G. Keetch and Alexander Dushku of Kirton & McConkie, Salt Lake City, Utah, for Amici Curiae Roman Catholic Diocese of Burlington, Vermont, et al.

John Fitzpatrick, Burlington, and David Zwiebel, New York, New York, for Amicus Curiae Agudath Israel of America.

Duncan F. Kilmartin of Rexford & Kilmartin, Newport, and Steven T. McFarland, Kimberlee W. Colby and Samuel B. Casey, Annandale, Virginia, for Amici Curiae Christian Legal Society, et al.

Timothy J. O'Connor, Jr., O'Connor Law Office, Brattleboro, and David Orgon Coolidge, The Catholic University of America, Washington, District of Columbia, for Amici Curiae Hon. Peter Brady, et al.



May the State of Vermont exclude same-sex couples from the benefits and protections that its laws provide to opposite-sex married couples? That is the fundamental question we address in this appeal, a question that the Court well knows arouses deeply-felt religious, moral, and political beliefs. Our constitutional responsibility to consider the legal merits of issues properly before us provides no exception for the controversial case. The issue before the Court, moreover, does not turn on the religious or moral debate over intimate same-sex relationships, but rather on the statutory and constitutional basis for the exclusion of same-sex couples from the secular benefits and protections offered married couples.

We conclude that under the Common Benefits Clause of the Vermont Constitution, which, in pertinent part, reads,

That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community. . . .

Vt. Const., ch. I, art 7., plaintiffs may not be deprived of the statutory benefits and protections afforded persons of the opposite sex who choose to marry. We hold that the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law. 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.

Plaintiffs are three same-sex couples who have lived together in committed relationships for periods ranging from four to twenty-five years. Two of the couples have raised children together. Each couple applied for a marriage license from their respective town clerk, and each was refused a license as ineligible under the applicable state marriage laws. Plaintiffs thereupon filed this lawsuit against defendants—the

744 A.2d 868
State of Vermont, the Towns of Milton and Shelburne, and the City of South Burlington—seeking a declaratory judgment that the refusal to issue them a license violated the marriage statutes and the Vermont Constitution

The State, joined by Shelburne and South Burlington, moved to dismiss the action on the ground that plaintiffs had failed to state a claim for which relief could be granted. The Town of Milton answered the complaint and subsequently moved for judgment on the pleadings. Plaintiffs opposed the motions and cross-moved for judgment on the pleadings. The trial court granted the State's and the Town of Milton's motions, denied plaintiffs' motion, and dismissed the complaint. The court ruled that the marriage statutes could not be construed to permit the issuance of a license to same-sex couples. The court further ruled that the marriage statutes were constitutional because they rationally furthered the State's interest in promoting "the link between procreation and child rearing." This appeal followed.1

I. The Statutory Claim

Plaintiffs initially contend the trial court erred in concluding that the marriage statutes render them ineligible for a marriage license. It is axiomatic that the principal objective of statutory construction is to discern the legislative intent. See Merkel v. Nationwide Ins. Co., 166 Vt. 311, 314, 693 A.2d 706, 707 (1997). While we may explore a variety of sources to discern that intent, it is also a truism of statutory interpretation that where a statute is unambiguous we rely on the plain and ordinary meaning of the words chosen. See In re P.S., 167 Vt. 63, 70, 702 A.2d 98, 102 (1997). "[W]e rely on the plain meaning of the words because we presume they reflect the Legislature's intent." Braun v. Board of Dental Examiners, 167 Vt. 110, 116, 702 A.2d 124, 127 (1997).

Vermont's marriage statutes are set forth in chapter 1 of Title 15, entitled "Marriage," which defines the requirements and eligibility for entering into a marriage, and chapter 105 of Title 18, entitled "Marriage Records and Licenses," which prescribes the forms and procedures for obtaining a license and solemnizing a marriage. Although it is not necessarily the only possible definition, there is no doubt that the plain and ordinary meaning of "marriage" is the union of one man and one woman as husband and wife. See Webster's New International Dictionary 1506 (2d ed.1955) (marriage consists of state of "being united to a person ... of the opposite sex as husband or wife"); Black's Law Dictionary 986 (7th ed.1999) (marriage is "[t]he legal union of a man and woman as husband and wife"). This understanding of the term is well rooted in Vermont common law. See Le Barron v. Le Barron, 35 Vt. 365, 366-71 (1862) (petition by wife to annul marriage for alleged physical impotence of husband); Clark v. Field, 13 Vt. 460, 465 (1841) (suit to declare marriage null and void on ground that husband and wife had not consummated marriage); Overseers of the Poor of the Town of Newbury v. Overseers of the Poor of the Town of Brunswick, 2 Vt. 151, 152 (1829) (dispute between towns over liability for support of family turned, in part, on validity of marriage where justice of peace had not declared parties husband and wife). The legislative understanding is also reflected in the enabling statute governing

744 A.2d 869
the issuance of marriage licenses, which provides, in part, that the license "shall be issued by the clerk of the town where either the bride or groom resides." 18 V.S.A. § 5131(a). "Bride" and "groom" are gender-specific terms. See Webster's, supra, at 334 (bride defined as "a woman newly married, or about to be married"; bridegroom defined as "a man newly married, or about to be married").

Further evidence of the legislative assumption that marriage consists of a union of opposite genders may be found in the consanguinity statutes, which expressly prohibit a man from marrying certain female relatives, see 15 V.S.A. § 1, and a woman from marrying certain male relatives, see id. § 2. In addition, the annulment statutes explicitly refer...

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