Legal Alerts - January 2000
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Recent Dramatic Legal News from Vermont

In a stunning development in the legalization of our relationships, the Vermont Supreme Court has ruled in favor of three same-sex couples who challenged the state's prohibition of same-sex marriage. In ruling for the couples who filed the lawsuit, the Court concluded that lesbian and gay plaintiffs "may not be deprived of the statutory benefits and protections afforded persons of the opposite sex who choose to marry."

Rather than immediately legalize same-sex marriage, however, the Court ordered the Vermont legislature to either include same-sex couples in the marriage laws or create a parallel domestic partnership system or some equivalent. Thus, it will be some time before we know what remedies the legislature adopts in response to this decision -- and there may be further challenges in court if the plaintiffs believe that the Legislature's solution is inadequate.

It is also critical to remember that this decision only affects the laws of Vermont, and does not directly affect federal legislation. However, if the Vermont legislature does indeed legalize same-sex marriage, rather than creating a parallel domestic partnership system, further legal challenges to the laws of other states and the federal statutes (including the infamous Defense of Marriage Act) are bound to follow. It is also possible that the weakness of any "parallel" domestic partnership scheme -- including its failure to open the door to the important federal tax, social security and immigration benefits -- will factor into the legislative argument over the response to the Court's decision.

The Vermont decision is a landmark in several key respects:

1. It is the first appellate court in the country to rule that the heterosexual marriage system is unconstitutional in its adverse impact on lesbian and gay couples.

2. The Court speaks dramatically and compellingly on the fundamental unfairness and illegality of current law. Referring to a specific clause in the Vermont constitution which states that legal benefits should flow to all citizens of Vermont, the opinion states that "The extension of the Common Benefits Clause to acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity."


3. The Court exposes the homophobia of the heterosexual state marriage legal system in concise and decisive language. As to the issue of protecting the children, the Court points out that children of same-sex couples deserve the same legal protection as children of heterosexual unions, and that non-fertile heterosexual couples have long been allowed to marry. It also links its decision to the legality of sperm donation and adoption by same-sex couples, demonstrating the value of "incremental" victories along the way to legalization of our relationships.

4. Rather than impose a particular solution to this unconstitutional situation, the Court leaves it for the legislature to craft the remedy. While some folks (including one of the Judges) may consider this frustrating and weak, it has the benefit of allowing the legislature to make the key decisions, thus maintaining a "balance of power" between the different realms of government.

There are some essential aspects of the decision which must be remembered:

1. This decision was consciously based upon the specific provisions of the Vermont constitution. While this has the benefit of avoiding any reversal by the United States Supreme Court, it may limit the number of other state courts which could otherwise adopt this Court's reasoning.

2. It will take as long as a year for the legislature to craft the remedy as compelled by the Court, and depending on what the legislature does, these benefits may only help Vermont residents and may only affect areas controlled by Vermont law.

3. While the issue of property rights was mentioned in the Court's decision, it is unknown at this time whether property rights (including post-separation support) will be included in the legislative solution. If the new legislation only deals with public and private benefits and doesn't address the issues of property rights, the solution will be far from adequate.

And so, while the decision is far from perfect and the situation is still volatile, the decision is monumental, and of vast benefit for our cause.

A fitting way to enter the new millennium!

For the full text of the Vermont decision, go to:

For those wanting to do further research in these and other areas of interest, check out these valuable legal resources on the internet:
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.
This site features news on the efforts in France to establish a broad network of legal protections and financial benefits to domestic partners.,
This sites features current news and articles compiled by the National Center for Lesbian Rights
This site offers the monthly Lesbian/Gay Law Notes, a newsletter published by the New York lesbian/gay bar association:
The Queer Resources Directory is an excellent site, with links to a wide variety of political, social and legal groups.
This is the site of the Partners Task Force, a wonderful Seattle-based group which is working to expand support for same-sex couples.
This site contains a wealth of resources for couples including essays, access to decisions and statutes worldwide, and directories of attorneys.

Legal Disclaimer

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 and make an appointment to meet with him.