Charged by the Vermont Supreme Court with legislating one of the most explosive issues of the day, legal same-gender marriages, the Vermont House Judiciary Committee began deliberations on January 11 in a calm and scholarly fashion. The court's December 20 ruling tasked the legislature with extending all the benefits of legal marriage to gay and lesbian couples, but left open the choice between amending the marriage law or creating a parallel domestic partnership system. Committee Chair Thomas Little (R-Shelburne) said of his panel of four fellow Republicans, five Democrats and a Progressive that, "I've asked them to be open-minded and to put aside their ideas about the structure of the bill [marriage or domestic partnership] for the time being."

Little also told the committee, "Moral and religious arguments, while valid within a person's personal ideology, are not relevant to our job in the legislature."

Instead, he said, "We're going to focus to the extent of our ability on the underlying law, the "Baker" decision, and marriage and common laws in the state of Vermont. I would think that 2-1/2 weeks out we're going to make decisions. We're going to keep focused on the law until we get to that point."

So instead of the bombast Americans have grown accustomed to hearing in every legislature which has considered legal recognition of gay and lesbian couples -- or its prohibition -- this committee hearing was a lesson in law. Serving as textbooks were fat binders issued to each committee member, 24 pages of which were needed simply to list a summary of "statutes potentially affecting the rights and responsibilities of married persons." [Ed. note: This contrasts with the federal legislature's handling of the so-called Defense of Marriage Act of 1996, in which lawmakers were quite ready to proceed with no idea of what they would deny to same-gender couples, until openly gay then-Congressmember Steve Gunderson (R-WI) asked Henry Hyde (R-IL) to request a study from the Government Accounting Office (GAO). Essentially ignored throughout the federal debate was the GAO's initial finding of 1,049 special benefits of marriage, although Senator Robert Byrd of Virginia occupied abo! ut a half-hour of the Senate's time with an idiosyncratic review of Western civilization back through Rome, Greece and the Bible.] The rational approach of the committee served to thin out what was at first an overflow audience as the day wore on.

First to testify were lesbian attorneys Susan Murray and Beth Robinson, Vermont natives in private practice who represented the two lesbian couples and one gay male couple seeking marriage licenses in the landmark "Baker" case. Their main theme, as Murray said, is that, "Really, this case is about people and this case is about families." And while they had a great deal to say about the law, their most passionate statements were about the symbolism of marriage, that as Murray said, "There's a message that [gay and lesbian couples] get that they're second-class citizens [if they cannot marry], that they're not worthy of participation in the very fundamental building block of our society that is the institution of marriage," and that as a result "there's an erosion of spirit." To illustrate, Murray asked the committee to imagine what would happen if everyone now married were instead declared domestic partners. "There would be an uproar. Those husbands and wives would feel! they'd lost something," she said.

Robinson added that, "The word [marriage] itself is something. Everybody knows what it means. It is a powerful term." She called on the analogy of interracial marriage, which much like same-gender marriage today was once prohibited by law in 30 states and prohibited in the constitutions of six. She said, "The reaction against interracial marriage was as visceral as the reaction against a man marrying a man or a woman marrying a woman is today." Yet when courts ruled the laws against interracial marriage to be illegal discrimination, Robinson noted, no one suggested creating a parallel relationship for them with equal benefits while continuing to deny them marriage.

They also expressed some urgency, knowing that many in the legislature have expressed a desire to move slowly or even not act at all. Murray said, "Every single day that the Legislature does not act is a denial of the common benefits and rights that our clients are entitled to and all gay and lesbian Vermonters are entitled to."

They detailed a number of concrete differences between marriage and domestic partnerships. As one important example, an employer providing spousal health benefits would be under no obligation to extend them to domestic partners. As another example, no other state would be under any obligation to recognize a Vermont domestic partnership as it would a marriage -- and not all states have adopted "defense of marriage" laws to prohibit recognition of another state's legal same-gender marriages. (Robinson said she believes that those "defense of marriage" laws will ultimately be struck down, but no test case can be brought until a legal same-gender marriage is actually performed.)

Also testifying was Vermont Law School professor Peter Teachout, a specialist in constitutional law, who agreed with Murray and Robinson that only marriage offered "that gateway to other states" and "that bestowal of legitimacy." But he also testified to his belief that a separate domestic partnership option with the benefits of marriage can satisfy the state high court's requirements. He said the justices had certainly discussed it, since there was a 4 - 1 split on the remedy to the unanimously-agreed discrimination, as the majority left the choice up to the legislature, while Justice Denise Johnson's dissent demanded marriage licenses for the plaintiff gay and lesbian couples. Teachout said, "The core issue, I think, is going to be if you decide to go with domestic partnership, how do you justify that distinction? What is it you don't get if you have domestic partnership?"

Vermont's Chief Assistant Attorney General William Griffin commented that, "Probably gay marriage would be the easiest to defend" before the state's high court. But he added that, "In a way, the partnership argument could be a transition, and next year or the next decade, [lawmakers] could take the next step."