Wednesday, March 18, 2009

Vermont Senate Judiciary Committee holds hearings on right to marry; "religious conscience" exceptions in marriage equality bills

The first day (03/16/09) of this week's hearings included testimony from two Vermont legal scholars and a Vermont attorney and chair of Vermont Freedom to Marry. All three testified before the Vermont Commission on Family Recognition and Protection, which the state legislature established to "review and evaluate Vermont's laws relating to the recognition and protection of same-sex couples and the families they form."

Vermont Freedom to Marry provides full coverage of the hearings. The 03/16/09 hearings can be viewed here, and a summary of testimony is available here. Below I summarize testimony from the Vermont law professors and attorney. I also include information on (3/14/09) about the hearings and S.115, the Vermont Act to Protect Religious Freedom and Promote Equality in Civil Marriage.


(1) T
estimony of Vermont Law School Professor Peter Teachout

Peter Teachout is a constitutional law scholar. He testified in the 03/16/09 hearing on "Equality of Civil Unions and Marriage."

Teachout emphasized the central role of Vermont's legislature in advancing Vermont's constitutional traditions, a role that it shares as a co-equal with Vermont's state courts. While the judiciary provides basic guidance on constitutional principles, the legislature has the authority, discretion, and duty to apply that guidance through legislative remedies.

In Baker v. State of Vermont, 744 A.2d 865 (Vt. 1999), the Vermont Supreme Court decided that, under Vermont's constitution, the state legislature must take steps to ensure that same-sex couples enjoy the same common benefits and protections of Vermont law as opposite-sex couples. But the Court was careful to leave it up to the legislature to craft the appropriate remedy, whether "the form of inclusion within the marriage laws themselves or a parallel 'domestic partnership' system.'"

The Court acknowledged that the state judiciary does not have exclusive authority in deciding constitutional questions. As a "participant in democratic deliberation," the judiciary can serve as a "catalyst" for the people to implement state constitutional rights through legislative action. This collaborative approach to constitutional questions, Teachout maintains, represents Vermont's own special approach to state constitutional issues.

Because Vermont decides constitutional questions by collaborative, democratic deliberation, the state legislature has not just a right, but a responsibility to decide whether the state constitution limits the right of marriage to opposite-sex couples. The unique, intangible benefits of marriage - even more than the tangible benefits - underscore the importance of the legislature's constitutional responsibility, and so does the ("real" or "perceived") "stigma of exclusion" that Vermont's same-sex couples endure . In a matter that so vitally involves the constitutional rights and protections of Vermonters, legislators must undertake this responsibility. Otherwise, they would not satisfy their constitutional oath of office (ch. II, art. 16), together with other provisions of the state constitution. Under their constitutional oath, lawmakers may not take any legislative action "injurious to the people," or that has a "tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this State." The oath raises a heightened duty of legislative care with respect to constitutional provisions that concern "unalienable rights" (ch. I, art. 1 ), a civil-rights limitation on exercise of "religious sentiments" (ch. I, art. 3), and the common benefits and protections of government (ch. I, art. 7).

"Judicial fiat" would subvert Vermont's constitutional process, a process that has had exemplary opportunity to unfold with respect to the constitutionality of same-sex marriage. ("Road to Marriage in Vermont.") By 4-3 majorities, Connecticut and Massachusetts Supreme Courts ruled that their state constitutions require recognition of same-sex marriage. Teachout considers these rulings examples of "judicial fiat" that would have shortcircuited the recent history of citizen and legislative participation in constitutional decisionmaking.

(2) Testimony of attorney Beth Robinson

Beth Robinson is Board Chair of Vermont Freedom to Marry and was plaintiffs' co-counsel in Baker v. State of Vermont, 744 A.2d 865 (Vt. 1999), the state's seminal ruling on the rights of same-sex couples. She testified in the 03/16/09 hearing on "Equality of Civil Unions and Marriage."

In her testimony, Robinson told Vermont lawmakers six, "real-life" stories about what gay and lesbian Vermonters experience as result of having no opportunity to marry. She used these stories - available on her blog - to underscore the following points:

1. Vermont's civil-union law supports the perception among even parents of same-sex partners that civil-union ceremonies matter less than marriages.

2. If Vermont same-sex couples could marry, the protections of marriage would travel with them to other states, such as New York, that recognize same-sex marriage. The legal protections of Vermont civil unions may not be likewise portable. And in states that do not recognize same-sex marriages, marriage case law, developed over two centuries, offers guidance on how such states may address questions involving same-sex marriage.

3. For the purpose of federal law, section 3 of the federal DOMA limits recognition of marriage to a opposite-sex couples, and thus denies to married same-sex couples the protections and benefits of federal law. A federal lawsuit has recently been filed to challenge section 3, and during his campaign President Obama said that he favors its repeal. But even if it is overturned or repealed, same-sex couples in Vermont would not benefit from that outcome unless they can marry.

4. The children of same-sex couples would have the fullest measure of legal, economic, and social protection only if same-couples could marry.

5. Many Vermont employers have health-care policies that extend health-care benefits to spouses of employees. Federal DOMA allows Vermont employers to deny these benefits to same-sex partners of Vermont civil unions. The proposed marriage-equality law (S.115), if enacted, would require them to change their policies if they wished to deny benefits to gay and lesbian spouses.

6. Just as segregation perpetuated the prejudice of racial inferiority, so the current separation between marriages and civil unions perpetuates the prejudice of gay and lesbian inferiority. The "fact of separation causes harm to everyone in the community" by signaling that "some people are more worthy of honor than others" based on their sexual orientation. [Professor Teachout, in his testimony, said that he feels "a little bit of resistance" to the analogy from segregation. Segregation was a state system of legal and economic repression, but, he claimed, civil unions do not rise to the level of a comparable system, in either purpose or effect.]


estimony of Vermont Law School Professor Gregory Johnson

Vermont Law School Professor Gregory Johnson testified in the 03/16/09 hearing on "Civil Unions and Marriage in Other States."

Although he had supported Vermont's law on civil unions, Johnson considers himself a "convert" to the unfulfilled imperative of Baker v. State of Vermont, 744 A.2d 865 (Vt. 1999) - the imperative to guarantee, under Vermont's constitution, "equality before the law" with respect to "the "common benefits and protections" of government." (He helped file the litigation that led to this ruling.) He addressed three ways in which Vermont's civil unions fall short of this guarantee:

1. States will more likely recognize same-sex marriages than civil unions where such states do not have civil-union laws and do not have constitutional amendments banning same-sex marriages;

2. Vermont employers may act to extend health care benefits to same-sex partners of employees, but under federal law they may limit such benefits to spouses, as defined by the federal DOMA. If Vermont recognized marriages of all couples, including same-sex couples, employers who confer health care benefits to spouses of employees would have to act to deny such benefits to same-sex spouses under federal DOMA and ERISA. The experience in Massachusetts shows that most employers there are reluctant to take this step.

3. Several courts, and the New Jersey Civil Union Review Commission, have recognized the "intangible" benefits of marriage and the signficant harms that arise from denying same-sex couples the right to marry.

03/16/09 AP:

"Passing a gay marriage bill 'is one of the most important civil rights issues of our time,' said Gregory Johnson, a Vermont Law School professor who testified before the state Senate Judiciary Committee on Monday."


Information about the hearings, and a comparison between Vermont's proposed legislation and proposed marriage-equality legislation in other states

On March 16th, the Vermont Senate Judiciary Committee will hold hearings on:

1. "S.115 - An act relating to civil marriage"

2. "Civil Unions and Marriage in Other States"

3. "Equality of Civil Unions and Marriage"

Hearings on S.115, the Vermont Act to Protect Religious Freedom and Promote Equality in Civil Marriage, will continue throughout the week, with a public hearing on March 18th. (The House version of the proposed Act, H.178, has been referred to the state's House Judiciary Committee.).

Vermont Law School Professor Gregory Johnson will testify in the hearing on "Civil Unions and Marriage in Other States." He has "made numerous presentations on lesbian/gay civil rights issues" and "testified before both houses of the Vermont legislature when it considered the landmark civil unions bill."

For the history surrounding the introduction of this legislation, see the Freedom to Marry's "Road to Marriage in Vermont." By carving out a "religious conscience" exception, this legislation resembles Maryland's proposed Religious Freedom and Civil Marriage Protection Act, Rhode Island's Marriage Equality bill, and Maine's proposed An Act to Prevent Discrimination in Civil Marriage and Affirm Religious Freedom. (124th Legislature, SP 384). These legisative undertakings would retain state recognition of marriage, while accommodating First Amendment protection of religious expression. The California Domestic Partnership Initiative, on the other hand, would enact state recognition of a legally equivalent civil institution in order to remedy First Amendment concerns.

03/13/09 AP (posted to Bennington Banner):

"State Senate President Pro Tem Peter Shumlin and House Speaker Shap Smith say they hope to pass a gay marriage bill this legislative session. "

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