Mr. Lanting, a member of Cornerstone Protestant Reformed Church, is a practicing attorney.

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, a question that the Court well knows arouses deeply-felt religious, moral, and political beliefs…. 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 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.

Baker, et al., v. State of Vermont,

Supreme Court of Vermont (January 31, 2000)

The Battle for Recognition of Same-Sex Marriages

The politically powerful and well-funded “gay rights” movement scored a stunning victory recently when the Vermont supreme court ruled in favor of three same-sex couples who sued the State of Vermont for refusing to issue them marriage licenses. Vermont’s high court held that the “Common Benefit” clause of the state’s constitution guaranteed same-sex couples the same legal benefits under the law as those enjoyed by opposite-sex married couples. The court then gave the state legislature “a reasonable time” either to issue same-sex marriage licenses or to create a parallel “domestic partnership” system legitimizing homosexual relationships.

Although this decision is limited to the state of Vermont and cannot be appealed to the U.S. Supreme Court, the 58-page opinion will undoubtedly have considerable influence on other states who have yet to face this issue. Vermont is the first state in the continental United States to extend marital rights to same-sex couples, although the Hawaii Supreme Court made a similar ruling in 1993, holding that its state’s failure to recognize gay marriages amounted to gender discrimination.

The Vermont ruling is particularly shocking because, following the notorious 1993 Hawaii case, some 30 (mostly southern and western) states passed preemptive legislation banning homosexual marriages. Moreover, the U.S. Congress, fearing that “gay couples would fly to Hawaii to get married” and that the 49 other states would then be forced to recognize those marriages, passed the federal Defense of Marriage Act, which denies federal recognition of homosexual marriages and allows states to pass laws ignoring same-sex unions licensed elsewhere.

The Vermont supreme court apparently ignored this rash of recent legislation passed to preserve traditional marriages and, oblivious to the numerous briefs filed in the case by pro-family organizations, nonetheless forced its judicial will on the Vermont legislature by directing it either to issue same-sex marriage licenses or to enact a parallel “domestic partnership” scheme for homosexual couples.

Judicial Activism

Conservative constitutional scholars are now viewing this notorious and unprecedented ruling with dismay and revulsion as another alarming instance of arrogant judicial activism. Rather than exercising proper judicial restraint required by our system of government by only interpreting laws passed by the legislature, these liberal activist judges are instead legislating from the bench and, in this case, deliberately jettisoned centuries of western legal tradition favoring marriage, procreation, child-rearing, and the family.

The court insisted it was not yet sanctioning same-sex marriage. But as one legal scholar has remarked: “Insofar as the Vermont opinion gives all the legal benefits of marriage to same-sex couples, it might as well issue the license too.”

The Benefits of Marriage at Stake

For several centuries, the western legal tradition has recognized profound and substantive benefits and protections incident to marriage. They include, for example, the right to receive a portion of the estate of a deceased spouse who dies without a will; preference in being appointed an executor of a spouse’s estate; the right to bring a lawsuit for wrongful death of a spouse and loss of consortium; the right to worker’s compensation survivor benefits; spousal benefits under health, life, disability, and accident insurance; presumption of joint ownership; the right of spousal support, maintenance, and property division in the event of separation and divorce; and many other rights and privileges. State and federal laws have afforded these rights and privileges to spouses because of the state’s historic public interest in protecting and promoting marriage, procreation, child-rearing, the family, and the community as a whole. The same-sex couples argued, however, that because they are “similarly situated,” their exclusion from such marital benefits and rights was unconstitutional.

The State’s Interest in Marriage and Children Forfeited

The attorney general for Vermont had argued that the state licensed only heterosexual marriages because of its historic interest in legitimizing children and providing for their security: to discard such an interest would “advance the notion that mothers and fathers are mere surplusage to the functions of procreation and child rearing.”

But the court summarily dismissed the state’s alleged interest in “promoting child-rearing in a setting that provides both male and female role models.” Although admitting that this was the state’s “most substantive” argument for promoting traditional marriage, the court noted a “fundamental flaw” in the state’s defense of heterosexual marriage:

In 1996, the Vermont legislature enacted, and the Governor signed, a law removing all legal barriers to the adoption of children by same-sex couples. At the same time, the legislature provided legal protection in the form of court-ordered child support and parent-child contact in the event that same-sex parents dissolved their “domestic relationship.” In the light of these express policy choices, the State’s arguments that

Vermont public policy favors opposite-sex over same-sex parents are patently without substance.

The tragic implications of this argument by the court cannot be overemphasized. Simply stated, the thrust of the court’s argument is this: Because the Vermont legislature had previously sanctioned adoption of children by homosexual couples, passed laws prohibiting discrimination based on “sexual orientation,” and approved artificial conception by lesbian mothers, the government has thereby forfeited its historic interest in protecting and promoting heterosexual marriage, procreation, child-rearing, and the traditional family.

The court noted that since an increasing number of opposite-sex couples marry with no intent of ever having children, the traditional relationship between marriage and procreation is no longer valid. Moreover, the court declared, “with or without the marriage sanction, the reality is that increasing numbers of homosexual couples are employing increasingly efficient assisted-reproductive techniques to conceive and raise children.”

The court’s bizarre “logic” can be summarized as follows: (1) Many same-sex couples as well as opposite-sex couples often marry “for reasons unrelated to procreation”; (2) Many same-sex couples as well as opposite-sex couples often use “artificial reproductive techniques” to give birth to children; (3) Many same-sex couples as well as opposite-sex couples adopt and raise children; (4) current laws prohibit discrimination based on sexual “orientation”:

Therefore, to the extent that the state’s purpose in licensing civil marriage was, and is, to legitimize children and provide for their security, the law plainly excludes many same-sex couples who are no different from opposite-sex couples with respect to these objectives. In short, the marital exclusion treats persons who are similarly situated for purposes of the law, differently. Thus, viewed in the light of history, logic, and experience, we conclude that none of the interests asserted by the state provides a reasonable and just basis for the continued exclusion of same-sex couples from the benefits incident to a civil marriage license under Vermont law.

The Demise of Marriage and Society

It must be said, of course, that surely the Vermont court did not come to this decision “in the light of history, logic, and experience” as it claimed. On the contrary, legal “history” has always promoted and protected marriage as an exclusive relationship between a man and a woman; same-sex relationships were despised and criminalized as sodomy and deviate sexual conduct. Moreover, “logic” tells us that to argue that same-sex couples should be given marriage license and benefits because they are allegedly “similarly situated” is nonsense, since it begs the very question at issue. Finally, “experience” has already told us that further erosion of the protections for marriage, child-rearing, and the family will only hasten the demise of western society as we know it.


The question remains as to whether anything can be done to prevent liberal activist judges in other states from re-defining marriage and discarding centuries of legal tradition. After the 1993 Hawaii supreme court decision affording marital benefits to same-sex couples, some 30 states passed preemptive legislation specifically excluding same-sex couples from the definition of marriage.

Other states are now rushing to amend their state constitutions by voter initiatives and referenda placed on state ballots this election year. Alaska and Hawaii have already passed such measures and California voters a few weeks ago faced “Proposition 22” which declared simply: “Only marriage between a man and a woman is valid or recognized in California.” Similar measures are planned in Colorado, Nevada, and other states.

But will state constitutional amendments defining marriage be an effective countermeasure against the homosexual agenda being adopted by activist judges? Apparently it was somewhat effective recently when the Hawaii supreme court refused to recognize homosexual marriages. Although the same court in 1993 had extended marital benefits to homosexual couples, in its recent ruling it held that the 1998 amendment to the state constitution (passed by a 2-1 voter margin) banning homosexual marriages resolved the issue. The decision was a loss for three homosexual couples who unsuccessfully demanded Hawaiian marriage licenses several years ago.

But the Hawaii court strangely enough left untouched its 1993 decision requiring extension of marital benefits. The confused and bizarre result is that now in Hawaii and Vermont the state must extend “marital” rights and privileges to couples who are outside the state’s definition of marriage. The Vermont legislature is now considering several bills which would create a license scheme for homosexual relationships, not unlike the marriage status.

Reformed Christians can only be appalled at these recent legal developments which profoundly weaken the very foundation of western civilization. Indeed, if our society and legal system can no longer define and protect marriage, child-rearing, and the family, then the immediate future of our culture is bleak. Soon Christian employers, landlords, insurance salespersons, and others will be forced to recognize homosexual “marriages” or face unpleasant legal consequences.