Sarah
D.

Stan
Baker
and
Peter
Harrigan
et
al.
v.
State
of
Vermont
et
al.
Supreme
Court
of
Vermont,
1999

Facts Plaintiff
same‐sex
couples
challenged
their
exclusion
from
the
Vermont

state
marriage
laws,
arguing
that
the
exclusion
was
inconsistent
with
the

Common
Bene>its
Clause
of
the
Vermont
Constitution
of
1777,
Ch.
I,
Art.
7.


Question(s) Is
the
exclusion
of
same‐sex
couples
from
state
marriage
laws
inconsistent

with
the
Common
Bene>its
Clause
of
the
Vermont
Constitution?

Answer(s) Yes‐
Defer
to
the
Legislature
to
“consider
and
enact
implementing
legislation
in

an
orderly
and
expeditious
fashion.”
(291)

Reasons
 Chief
Justice
Amestoy
Framer’s
Intent
“The
af>irmative
right
to
the
‘common
bene>its
and
protections’
of

government
and
corollary
prescription
of
favoritism
in
the
distribution
of

public
‘emoluments
and
advantages’
re>lect
the
framers’
overarching

objective
‘not
only
that
everyone
enjoy
equality
before
the
law
or
have
an

equal
voice
in
the
government
but
also
that
everyone
have
an
equal
share

in
the
fruits
of
common
enterprise.’”
(284)

State
Interest
Many
opposite‐sex
couples
marry
for
reasons
unrelated
to
procreation,

some
couples
never
intend
to
have
children
and
some
are
incapable
of

having
children,
thus,
if
the
purpose
of
the
statutory
exclusion
of
same‐sex

couples
is
to
promote
a
link
between
procreation
and
child
rearing
it
is

“signi>icantly
under‐inclusive.
The
law
extends
the
bene>its
and

protections
of
marriage
to
many
persons
with
no
logical
connection
to
the

stated
governmental
goal.”
(286)

Textual
Vermont
Legislature,
15A
V.S.A.
1‐102(b)
Same‐sex
couples
are
employing
increasingly
ef>icient
assisted

reproductive
techniques
to
conceive
and
raise
children
and
the
Vermont

Legislature
has
recognized
this
reality
and
acted
af>irmatively
to
remove

legal
barriers
so
that
same‐sex
couples
may
legally
adopt
and
rear
children

conceived
through
such
efforts.
(286)

Precedent,
Traditional
Reasoning,
Framer’s
Intent
Loving
v.
Virginia
The
U.S.
Supreme
Court,
striking
down
Virginia’s
anti‐miscegenation
law,

stated
“the
freedom
to
marry
has
long
been
recognized
as
one
of
the
vital

 Sarah
D.

personal
rights.”
(288)

State
Interest
The
legal
bene>its
and
protections
afforded
by
a
marriage
license
are
of

such
signi>icance
that
any
statutory
exclusion
“must
be
grounded
on
public

concerns
of
suf>icient
weight,
cogency,
and
authority
that
the
justice
of
the

deprivation
cannot
seriously
be
questioned.”
(288)

Precedent
MacCallum
v.
Seymour’s
Adm’r
To
the
extent
that
state
action
historically
has
been
motivated
by
an

animus
against
a
class,
that
history
cannot
provide
a
legitimate
basis
for

continued
unequal
application
of
the
law.
(289)

Precedent

Linkletter
v.
Walker,
Smith
v.
State
The
statutory
scheme
remains
in
effect
for
a
“reasonable
period
of
time
to

enable
the
Legislature
to
consider
and
enact
implementing
legislation
in

an
orderly
and
expeditious
fashion.”
No
constitutional
rule
impedes
the

discretion
of
the
court
to
postpone
operative
date
of
ruling
“where

exigencies
require.”
(291)

Concurring Justice
Dooley
&
Dissenting
 Precedent,
Textual
(in
part) State
v.
Clark,
Article
7
The
Oregon
court
has
recognized,
in
developing
its
Article
7
jurisprudence,

that
a
privilege
for
a
person
or
group
of
persons
means
discrimination

against
others.
(291)

Precedent
Hewitt
v.
State
Accident
Ins.
Fund
Corp
The
Oregon
Supreme
Court
determined
sex‐based
classi>ications
are

suspect
because
they
focus
on
immutable
personal
characteristic
and
“can

be
suspected
of
re>lecting
‘invidious’
social
or
political
premises,
that
is
to

say,
prejudice
or
stereotyped
prejudgments”
and
“the
purposeful

historical,
legal,
economic
and
political
unequal
treatment
of
women
is

well
known.”
(292)

Precedent
Rosenberg
v.
Canada
Groups
that
have
historically
been
the
target
of
discrimination
“cannot
be

expected
to
wait
patiently
for
the
protection
of
their
human
dignity
and

equal
rights
while
government
move
toward
reform
one
step
at
a

time.”
(293)