SUMMARY: 3 couples in search of marriage licenses are arguing in the Vermont Supreme Court that they need the protection, encouragement and support of the state as much as heterosexuals do.

The attorneys involved would prefer it be viewed as a state issue rather than a national one, but the nation's attention did turn November 18 to the unprepossessing gray building in Montpelier housing the Vermont state Supreme Court, as the justices considered three same-gender couples' bid to obtain marriage licenses. The case known as "Baker versus the State of Vermont" is viewed as the best hope in the U.S. for legal same-gender marriages in the wake of referenda November 3 apparently blocking their progress through the courts in Alaska and Hawai'i.

In December 1997, Chittenden Superior Court Judge Linda Levitt dismissed "Baker," finding that the state had a right to limit marriage to heterosexual couples in order to "send a public message that procreation and child-rearing are intertwined" -- but the state's high court not only accepted the appeal, it granted more than twice the usual time allowed for the oral arguments. In preparation for the hearing, tickets were issued for the first time ever for the 60 seats in the courtroom available to the public, and additional security was added.

Beth Robinson, lead attorney for the three couples, described as "striking" the parallels between denying marriage to gay and lesbian couples and the historical ban on interracial marriages, and called on the Vermont justices to break down the gender barrier as California justices had broken the race barrier a half-century before. The appeal argues that the state marriage laws exist "to protect, encourage, and support unions of committed couples, and thereby also provide a stable environment for those couples to raise children if they have them" -- and that those are all valid reasons to allow same-gender couples to marry as well. To deny marriage to same-gender couples would be to violate the so-called "common benefits clause" of the Vermont constitution, the plaintiffs claim.

The state argued that gays and lesbians should try to change the law through the legislature rather than the courts, and that for the justices to reinterpret the marriage law would be to infringe on the authority of the legislature. Vermont city clerks have been refusing marriage licenses to gay and lesbian couples based on a ruling by the state Attorney General in 1975, which in turn relied on the gender-specific "bride and groom" language of the state's marriage law.

The state's argument that convinced the trial judge to dismiss the case (while she rejected a number of others) was the idea of a state interest in linking procreation and child-rearing -- an argument which Harvard Law School professor Lawrence Tribe told the "New York Times" is "insane." He said, "That means that sterile people shouldn't be able to marry, that two octogenarians should not be able to marry. It's just ridiculous." Robinson argued before the high court that, "If the state's concern is about protecting children, then that would be protected by allowing these couples to marry,'' and noted that two of the three couples have adopted children.

In other respects, Vermont laws are quite favorable to gays and lesbians, including statewide civil rights protections from discrimination based on sexual orientation in housing, employment, public accommodations, and credit; a statewide hate crimes law including homophobic assaults; adoptions by gays and lesbians and second-parent adoptions by their same-gender partners; and domestic partner benefits for employees of the state and of a number of local governments.

In addition to the briefs of the plaintiffs and the state, the court has been inundated with what's said to be "pounds" of friend-of-the-court briefs, at least seven supporting the plaintiffs and at least ten supporting the state. One such brief on the state's side is from a coalition of other states, including Alabama, Arizona, Hawai'i, Illinois, Mississippi, Missouri, Nebraska, Pennsylvania, South Carolina, South Dakota, and Virginia.

The plaintiff couples are Holly Puterbaugh and Lois Farnham of Milton, together now for 25 years and adoptive parents for the last four years; Nina Beck and Stacy Jolles of South Burlington, whose toddler son died of a rare congenital condition in 1997; and Stan Baker and Peter Harrigan of Shelbourne. Their case has been brought with the assistance of the Boston-based Gay & Lesbian Advocates & Defenders (GLAD) and the support of the Vermont Freedom to Marry Coalition.

A poll in Vermont commissioned almost a year ago by the same-gender marriage opponents group Take It to the People, or TiP (which has vowed to put the question before either the state legislature or Vermont voters should the court rule in favor of gay and lesbian marriage), found that "legalizing homosexual or lesbian marriage" was disapproved of by 53% of respondents and approved of by 30%, with 17% not responding either way.