Legal Alerts - April 2000
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Vermont's New Civil Union Law

In response to the Vermont Supreme Court's path-breaking decision of last December, the Vermont house has enacted a comprehensive civil union law. The law is expected to be approved by the full legislature and the Governor, and so it probably will become law very soon. The law tries to carve out a compromise on the the gay marriage issue, by granting to same-sex couples all of the state rights generally associated with marriage, but without calling it marriage.

On the whole the law is very comprehensive, and from a state-law perspective it grants same-sex couples all of the benefits and all of the burdens of state-sanctioned marriage. There are two significant flaws in the legislation, however. First, and most profoundly from a legal perspective, a Vermont civil union will not be a marriage recognized by the federal government. Therefore, the enormous range of very important federal benefits -- inheritance tax, immigration rights, and social security benefits, for example, will not be granted to Vermont civil unions. Now, it is true that the bigoted Defense of Marriage Act states that the federal government would not honor any state's same-sex marriage, but many legal advocates believed that this law would not have survived constitutional scrutiny. By creating a new category called civil unions, however, Vermonters will not even be able to try to overturn the DOMA. In effect, therefore, the state is keeping Vermonters out of the bid for federal benefits, and this is wrong.

Second, the civil union program creates a "separate but not-so-equal" system for same-sex couples, with a separate registration program and a separate legal program. This is wrong from a social and personal perspective, and creates a two-class arrangement which is inherantly discriminatory.

The plaintiffs in the original lawsuit will have the chance to complain about these negative features of the new law, if they wish to bring their case back to the Vermont courts. It is unclear at this time whether the plaintiffs will choose to accept the civil union system or challenge it in court, and likewise it is unknown at this time how the court would respond to such a challenge.

A review of the Vermont statute shows how comprehensive a system is being created. The Vermont civil union law provides, for example, the following benefits:

  • the right to inherit property through intestate succession, if your partner has failed to write a will
  • the right to make a wrongful death claim against someone who causes your partner's death
  • the right to adopt as a married couple does, and the confirmation that any child born to one partner in a civil union is the child of both parents
  • family leave, hospital access and power of attorney benefits
  • tax benefits which generally flow to married couples
  • all state tax benefits

Like any other married couple, the property rights of a same-sex civil union couple will be adjudicated by the courts, using the same rules of property division which now apply only to heterosexual married couples. While couples can still write pre-nuptial agreements to modify those provisions, the state marital property rules will apply in the absense of such an agreement.

As with the integration battles, a "separate but equal" system is often the last step before full integration. It creates an anomalous situation where one set of citizens are given all the same substantive rights as the rest of society, but where the formal names and treatment are different. Once this separate system is established, the folly of the two-tiered rules grows increasingly evident. And, since calling it marriage would no longer have any substantive change, merging a civil union arrangement into the traditional marriage rules begins to make a lot of sense. So from that perspective, this is a marvelous "next step."

For the full text of the recently-enacted Vermont legislation on civil unions, go to:
http://www.leg.state.vt.us/docs/2000/bills/house/h-847.htm

For the full text of the recent Vermont decision on gay marriage, go to:
http://dol.state.vt.us/gopher_root3/supct/current/98-032.op

For those wanting to do further research in these and other areas of interest, check out these valuable legal resources on the internet:

http://www.glad.org
This is the site of Boston's Gay & Lesbian Advocates and Defenders, an excellent public-interest law firm serving the gay community. GLAD also recently issued Guidelines for resolving child custody disputes in our community.

http://www.yahoo.fr/actualite/societe/pacs.html
This site features news on the efforts in France to establish a broad network of legal protections and financial benefits to domestic partners.

http://www.NCLRights.org,
This sites features current news and articles compiled by the National Center for Lesbian Rights

http://www.qrd.org/qrd/www/usa/legal/lgln/
This site offers the monthly Lesbian/Gay Law Notes, a newsletter published by the New York lesbian/gay bar association:

http://www.qrd.org/qrd/www/legal/
The Queer Resources Directory is an excellent site, with links to a wide variety of political, social and legal groups.

http://www.buddybuddy.com
This is the site of the Partners Task Force, a wonderful Seattle-based group which is working to expand support for same-sex couples.

http://www.labyrinth.net.au/~dba/
This site contains a wealth of resources for couples including essays, access to decisions and statutes worldwide, and directories of attorneys.


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General information provided at this site should not be treated as legal advice applicable in your particular situation. Every situation presents its own facts and circumstances, and the law may be very different depending upon where you live. By accessing this site, you are acknowledging that Frederick Hertz is not agreeing to act for you in any capacity nor providing you with any legal advice, and that you are not a client of Frederick Hertz. If you reside in California and wish to retain the services of Frederick Hertz, you may contact him at samesexlaw@aol.com and make an appointment to meet with him.