- The Washington Times - Tuesday, December 21, 1999

The Vermont Supreme Court yesterday said that homosexual couples in the state should be given the same “common benefits and protections” as heterosexual married couples, but it didn’t say how.

A concurring justice, who wanted to make homosexual “marriage” a constitutional right, said the court’s decision was merely an “exhortation” to the legislature.

Legislators must now decide how or whether to grant those benefits under the ruling the first to order a state legislature to extend marital rights and benefits to homosexual couples.

“Whether this ultimately takes the form of inclusion within the marriage laws themselves or a parallel domestic partnership’ system or some equivalent statutory alternative rests with the legislature,” the court said in its unanimous decision.

“Whatever system is chosen, however, must conform with the constitutional imperative to afford all Vermonters the common benefit, protection and security of the law,” the court said.

Benefits the court said homosexual couples should have include access to a partner’s medical, life and disability insurance, hospital visitation and other medical decision-making privileges, “spousal” support, certain rights of inheritance and homestead protections.

In the ruling written by Chief Justice Jeffrey L. Amestoy, the Vermont court agreed that: “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.”

Extension of these benefits to the plaintiffs, “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,” the ruling said.

Justice Denise Johnson wrote a separate opinion saying the court had not gone far enough. She said she would require town clerks to issue marriage licenses to same-sex couples.

The ruling delighted homosexual activists, who only 10 days ago lamented a Hawaii Supreme Court decision to dismiss a marriage lawsuit filed by three same-sex couples there.

“It’s a glorious day,” said Evan Wolfson, head of the Marriage Project with the Lambda Legal Defense and Education Fund and co-counsel in the Hawaii case.

This is “a legal and cultural milestone,” said Mary Bonauto, an attorney for three homosexual couples who sued Vermont for the right to marry in 1997.

Both Democratic presidential candidates supported the ruling.

“Certainly, the vice president supports giving gays and lesbians legal rights through domestic partnerships,” said Chris Lehane, spokesman for Vice President Al Gore.

Said Eric Hauser, spokesman for Bill Bradley, “This is something Bradley has advocated forcefully and agrees with. People in involved and committed relationships should be entitled to the full range of partnership benefits.”

Opponents said the ruling is offensive to the institution of marriage.

“It really represents a slap in the face for marriage between a man and a woman,” said Jay Sekulow, chief counsel for the American Center for Law and Justice, which opposes gay “marriage.”

Two Republican presidential candidates sharply criticized the court.

“It was a flagrant example of judicial activism. I believe in traditional marriage. The court overstepped its bounds. This, if anything, is a matter for the people to decide, not judges,” said publisher Steve Forbes.

Said conservative Gary Bauer: “The Vermont Supreme Court decision is an unmitigated disaster for the American family. This decision is the most recent example of imperial and non-elected judges run amok. No one elects these judges, and yet they feel the urgent need to legislate from the bench.”

The Rev. Craig Bensen, a leader of Take It to the People, a Vermont grass-roots group that opposes homosexual “marriage,” said that the court ruling was “disappointing” because it showed “no support for the concept of marriage as understood in Western civilization.”

He applauded the move to give the final decisions to lawmakers, who convene in January.

There are already 57 co-sponsors for a House bill that defines marriage as between a man and a woman, said Mr. Bensen, who is an independent evangelical church leader in Cambridge, Vt.

“Vermont is not the gay marriage’ capital of the world yet,” he said.

The ruling sparked questions about its national implications.

Lawsuits are expected regardless of what the Vermont lawmakers decide, said state Attorney General William Sorrell, who unsuccessfully argued the state’s case.

If Vermont legislators allow homosexuals to “marry,” they will mount state and federal challenges to laws denying recognition of their “marriages,” he said.

If Vermont approves domestic partnerships, Vermont couples who move to another state may sue to have the same rights, said Mr. Sorrell.

Mr. Sekulow said the court’s command to lawmakers to make state policy fit with the constitution is “unusual, but not unprecedented. I’ve seen cases where [the court] sends [the law] back to the legislature to fix, but not this directly. It’s an unusual move.”

Vermont Gov. Howard Dean, a Democrat who declined to take a stand on the issue until after the court ruled, yesterday predicted the legislature would pass a domestic-partnership law. Still, he said, same-sex “marriage” “makes me uncomfortable, the same as anybody else.”

Jennifer Levi, a lawyer who works with Miss Bonauto at the Gay and Lesbian Advocates and Defenders in Boston, said she would push for legal marriage over a domestic-partnership deal.

Traditional-family advocates noted that 30 states had passed laws saying they will not recognize homosexual “marriages” from other states. The other 20 states should do so now, said Janet Parshall of the Family Research Council.

The three couples that sued Vermont one of two men and two of two women argued that their inability to get married denied them hundreds of state and federal benefits.

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