Baker v. State

Annotate this Case
Baker v. State  (98-032); 170 Vt. 194; 744 A.2d 864

[Filed 20-Dec-1999]


                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 98-032

                            NOVEMBER TERM, 1998


Stan Baker, et al.	  }	APPEALED FROM:
	                  }
	                  }
     v.	                  }	Chittenden Superior Court
	                  }	
State of Vermont, et al.  }
	                  }	DOCKET NO. 1009-97CnC	


	In the above-entitled cause, the Clerk will enter:

The judgment of the superior court upholding the constitutionality of the
Vermont marriage statutes under Chapter I, Article 7 of the Vermont
Constitution is reversed.  The effect of the Court's decision is suspended,
and jurisdiction is retained in this Court, to permit the Legislature to
consider and enact legislation consistent with the constitutional mandate
described herein.
	


                                _______________________________________
	                        Jeffrey L. Amestoy, Chief Justice


	                        Concurring:
Concurring and Dissenting:
	                         _______________________________________
	                         John A. Dooley, Associate Justice
________________________________
Denise R. Johnson, Associate Justice	
                                 _______________________________________
	                         James L. Morse, Associate Justice


	                         _______________________________________
	                         Marilyn S. Skoglund, Associate Justice


-------------------------------------------------------------------------


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as  formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 98-032

Stan Baker, et al.	                 Supreme Court

	                                 On Appeal from
     v.		                         Chittenden Superior Court

State of Vermont, et al.	         November Term, 1998


Linda Levitt, J.

       Beth Robinson and Susan M. Murray of Langrock Sperry & Wool,
  Middlebury, and Mary Bonauto, Gay & Lesbian Advocates & Defenders, Boston,
  Massachusetts, for  Plaintiffs-Appellants.

       William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan and
  Timothy Tomasi,  Assistant Attorneys General, Montpelier, for
  Defendant-Appellee State.

       Timothy M. Eustace of Stitzel, Page & Fletcher, P.C., Burlington, for
  Defendants-Appellees Town of Shelburne and City of South Burlington.

       Gregg H. Wilson of Kolvoord, Overton & Wilson, Essex Junction, for
  Defendant-Appellee Town of Milton.

       Harvey Golubock, Montpelier, for Amicus Curiae Vermont Human Rights
  Commission.

       Richard T. Cassidy of Hoff, Curtis, Pacht, Cassidy & Frame, P.C.,
  Burlington, and Evan Wolfson, Lambda Legal Defense and Education Fund,
  Inc., and Lawson M. Vicario and S. Elizabeth Foster of Gibson, Dunn &
  Crutcher LLP, New York, New York, for Amici Curiae Vermont Coalition for
  Lesbian and Gay Rights, et al.

       David Rath of Kohn & Rath, Hinesburg, for Amicus Curiae Professors of
  Legislation and Statutory Interpretation.

       Eileen M. Blackwood of Blackwood and Kraynak, P.C., Burlington, David
  Chambers, White River Junction, and Matthew Coles, American Civil Liberties
  Union Foundation, New York, New York, for Amici Curiae Parents and Friends
  of Lesbian and Gay Men, et al.

       Peter M. Lawrence of Barr, Sternberg & Moss, P.C., Bennington, for
  Amici Curiae Vermont Organization for Weddings of the Same-Gender, et al.

  

       William M Dorsch of Mickenberg, Dunn, Sirotkin & Dorsch, Burlington,
  for Amici Curiae Vermont NOW, et al.

       Philip C. Woodward and Karen McAndrew of Dinse, Knapp & McAndrew,
  P.C., Burlington, for Amici Curiae Vermont Psychiatric Association, et al.

       Hal Goldman, Burlington, for Amicus Curiae Take It To the People.

       J. Paul Giuliani of McKee, Giuliani & Cleveland, Montpelier, and
  Dwight G. Duncan,  North Dartmouth, Massachusetts, for Amici Curiae New
  Journey, et al.

       Robert H. Erdmann, South Burlington, Jay Alan Sekulow and John P.
  Tuskey, Virginia Beach, Virginia, and Vincent P. McCarthy, New Milford,
  Connecticut, for Amicus Curiae The American Center for Law and Justice.

       Clarke A. Gravel of Gravel & Shea, Burlington, and Don Stenberg,
  Nebraska Attorney General, and L. Steven Grasz, Deputy Attorney General,
  Lincoln, Nebraska, for Amici Curiae State of Nebraska, et al.

       Jon R. Eggleston, Burlington, for Amicus Curiae Professors of Law and
  Jurisprudence.

       Duncan F. Kilmartin, Newport, and David R. Huggins, The National Legal
  Foundation, Memphis, Tennessee, for Amici Curiae Specialty Research
  Associates, et al.

       William M. O'Brien, O'Brien Law Offices, Winooski, Thomas E. McCormick
  of McCormick Fitzpatrick Kasper & Burchard, Burlington, and Von G. Keetch
  and Alexander Dushku of Kirton & McConkie, Salt Lake City, Utah, for Amici
  Curiae Roman Catholic Diocese of Burlington, Vermont, et al.

       John Fitzpatrick, Burlington, and David Zwiebel, New York, New York,
  for Amicus Curiae Agudath Israel of America.

       Duncan F. Kilmartin of Rexford & Kilmartin, Newport, and Steven T.
  McFarland, Kimberlee W. Colby and Samuel B. Casey, Annandale, Virginia, for
  Amici Curiae Christian Legal Society, et al.

       Timothy J. O'Connor, Jr., O'Connor Law Office, Brattleboro, and David
  Orgon Coolidge, The Catholic University of America, Washington, District of
  Columbia, for Amici Curiae Hon. Peter Brady, et al.

PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.




       AMESTOY, C.J.   May the State of Vermont exclude same-sex couples from
  the benefits  and protections that its laws provide to opposite-sex married
  couples?  That is the fundamental  question we address in this appeal, a
  question that the Court well knows arouses deeply-felt  religious, moral,
  and political beliefs.  Our constitutional responsibility to consider the
  legal merits  of issues properly before us provides no exception for the
  controversial case.  The issue before the  Court, moreover, does not turn
  on the religious or moral debate over intimate same-sex  relationships, but
  rather on the statutory and constitutional basis for the exclusion of
  same-sex  couples from the secular benefits and protections offered married
  couples.

       We conclude that under the Common Benefits Clause of the Vermont
  Constitution, which,  in pertinent part, reads,

       That government is, or ought to be, instituted for the common 
  benefit, protection, and security of the people, nation, or  community, and
  not for the particular emolument or advantage of  any single person,
  family, or set of persons, who are a part only of  that community,

  Vt. Const., ch. I, art 7., plaintiffs may not be deprived of the statutory
  benefits and protections  afforded persons of the opposite sex who choose
  to marry.  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.  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.  Whatever system is chosen, however, must  conform with
  the constitutional imperative to afford all Vermonters the common benefit, 
  protection, and security of the law.

       Plaintiffs are three same-sex couples who have lived together in
  committed relationships



  for periods ranging from four to twenty-five years.  Two of the couples
  have raised children  together.  Each couple applied for a marriage license
  from their respective town clerk, and each  was refused a license as
  ineligible under the applicable state marriage laws.  Plaintiffs thereupon 
  filed this lawsuit against defendants -- the State of Vermont, the Towns of
  Milton and Shelburne,  and the City of South Burlington -- seeking a
  declaratory judgment that the refusal to issue them a  license violated the
  marriage statutes and the Vermont Constitution.  

       The State, joined by Shelburne and South Burlington, moved to dismiss
  the action on the  ground that plaintiffs had failed to state a claim for
  which relief could be granted.  The Town of  Milton answered the complaint
  and subsequently moved for judgment on the pleadings.  Plaintiffs  opposed
  the motions and cross-moved for judgment on the pleadings.  The trial court
  granted the  State's and the Town of Milton's motions, denied plaintiffs'
  motion, and dismissed the complaint.   The court ruled that the marriage
  statutes could not be construed to permit the issuance of a license  to
  same-sex couples.  The court further ruled that the marriage statutes were
  constitutional because  they rationally furthered the State's interest in
  promoting "the link between procreation and child  rearing."  This appeal
  followed. (FN1)   

                           I.  The Statutory Claim

       Plaintiffs initially contend the trial court erred in concluding that
  the marriage statutes 

 

  render them ineligible for a marriage license.  It is axiomatic that the
  principal objective of statutory  construction is to discern the
  legislative intent.  See Merkel v. Nationwide Ins. Co., 166 Vt. 311,  314,
  693 A.2d 706, 707 (1997).  While we may explore a variety of sources to
  discern that intent,  it is also a truism of statutory interpretation that
  where a statute is unambiguous we rely on the plain  and ordinary meaning
  of the words chosen.  See In re P.S., 167 Vt. 63, 70, 702 A.2d 98, 102 
  (1997).  "[W]e rely on the plain meaning of the words because we presume
  they reflect the  Legislature's intent."  Braun v. Board of Dental
  Examiners, 167 Vt. 110, 116, 702 A.2d 124, 127  (1997).  

       Vermont's marriage statutes are set forth in Chapter 1 of Title 15,
  entitled "Marriage,"  which defines the requirements and eligibility for
  entering into a marriage, and Chapter 105 of Title  18, entitled "Marriage
  Records and Licenses," which prescribes the forms and procedures for 
  obtaining a license and solemnizing a marriage.  Although it is not
  necessarily the only possible  definition, there is no doubt that the plain
  and ordinary meaning of "marriage" is the union of one  man and one woman
  as husband and wife.  See Webster's New International Dictionary 1506 (2d 
  ed. 1955) (marriage consists of state of "being united to a person .  .  .
  of the opposite sex as  husband or wife"); Black's Law Dictionary 986 (7th
  ed. 1999) (marriage is "[t]he legal union of a  man and woman as husband
  and wife").  This understanding of the term is well rooted in Vermont 
  common law.  See Le Barron v. Le Barron, 35 Vt. 365, 366-71 (1862)
  (petition by wife to annul  marriage for alleged physical impotence of
  husband); Clark v. Field, 13 Vt. 460, 465 (1841) (suit  to declare marriage
  null and void on ground that husband and wife had not consummated 
  marriage); Overseers of the Poor of the Town of Newbury v. Overseers of the
  Poor of the Town of  Brunswick, 2 Vt. 151, 152 (1829) (dispute between
  towns 



  over liability for support of family turned, in part, on validity of
  marriage where justice of peace  had not declared parties husband and
  wife).  The legislative understanding is also reflected in the  enabling
  statute governing the issuance of marriage licenses, which provides, in
  part, that the  license "shall be issued by the clerk of the town where
  either the bride or groom resides."  18  V.S.A. § 5131(a).  "Bride" and
  "groom" are gender-specific terms.  See Webster's, supra, at 334  (bride
  defined as "a woman newly married, or about to be married;" bridegroom
  defined as "a man  newly married, or about to be married").

       Further evidence of the legislative assumption that marriage consists
  of a union of opposite  genders may be found in the consanguinity statutes,
  which expressly prohibit a man from marrying  certain female relatives, see
  15 V.S.A. § 1, and a woman from marrying certain male relatives, see  id. §
  2.  In addition, the annulment statutes explicitly refer to "husband and
  wife," see id. § 513, as  do other statutes relating to married couples. 
  See, e.g., 12 V.S.A. § 1605 ("husband and wife"  may not testify about
  communications to each other under rule commonly known as "marital 
  privilege," see State v. Wright, 154 Vt. 512, 525, 581 A.2d 720, 728
  (1990)); 14 V.S.A. §§ 461,  465, 470 (referring to interest of "widow" in
  estate of her "husband"); id. § 10 (requiring three  witnesses where
  "husband or wife" are given beneficial interest in other's will); 15 V.S.A.
  § 102  (legal protections where "married man  .  .  .  deserts, neglects,
  or abandons his wife"). 

       These statutes, read as a whole, reflect the common understanding that
  marriage under  Vermont law consists of a union between a man and a woman. 
  Plaintiffs essentially concede this  fact.  They argue, nevertheless, that
  the underlying purpose of marriage is to protect and encourage  the union
  of committed couples and that, absent an explicit legislative prohibition,
  the 



  statutes should be interpreted broadly to include committed same-sex
  couples.  Plaintiffs rely  principally on our decision in In re B.L.V.B.,
  160 Vt. 368, 369, 628 A.2d 1271, 1272 (1993).   There, we held that a woman
  who was co-parenting the two children of her same-sex partner could  adopt
  the children without terminating the natural mother's parental rights. 
  Although the statute  provided generally that an adoption deprived the
  natural parents of their legal rights, it contained an  exception where the
  adoption was by the "spouse" of the natural parent. See id. at 370, 628 A.2d  at  1273 (citing 12 V.S.A. § 448).  Technically, therefore, the
  exception was inapplicable.  We  concluded, however, that the purpose of
  the law was not to restrict the exception to legally married  couples, but
  to safeguard the child, and that to apply the literal language of the
  statute in these  circumstances would defeat the statutory purpose and
  "reach an absurd result."  Id. at 371, 628 A.2d  at 1273.  Although the
  Legislature had undoubtedly not even considered same-sex unions  when the
  law was enacted in 1945, our interpretation was consistent with its
  "general intent and  spirit."  Id. at 373, 628 A.2d  at 1274.

       Contrary to plaintiffs' claim, B.L.V.B. does not control our
  conclusion here.  We are not  dealing in this case with a narrow statutory
  exception requiring a broader reading than its literal  words would permit
  in order to avoid a result plainly at odds with the legislative purpose. 
  Unlike  B.L.V.B., it is far from clear that limiting marriage to
  opposite-sex couples violates the  Legislature's "intent and spirit." 
  Rather, the evidence demonstrates a clear legislative assumption  that
  marriage under our statutory scheme consists of a union between a man and a
  woman.   Accordingly, we reject plaintiffs' claim that they were entitled
  to a license under the statutory  scheme governing marriage.  


                        II.  The Constitutional Claim

       Assuming that the marriage statutes preclude their eligibility for a
  marriage license,  plaintiffs contend that the exclusion violates their
  right to the common benefit and protection of the  law guaranteed by
  Chapter I, Article 7 of the Vermont Constitution.(FN2) They note that in 
  denying them access to a civil marriage license, the law effectively
  excludes them from a broad  array of legal benefits and protections
  incident to the marital relation, including access to a spouse's  medical,
  life, and disability insurance, hospital visitation and other medical
  decisionmaking  privileges, spousal support, intestate succession,
  homestead protections, and many other statutory  protections.  They claim
  the trial court erred in upholding the law on the basis that it reasonably 
  served the State's interest in promoting the "link between procreation and
  child rearing."  They  argue that the large number of married couples
  without children, and the increasing incidence of  same-sex couples with
  children, undermines the State's rationale.  They note that Vermont law 
  affirmatively guarantees the right to adopt and raise children regardless
  of the sex of the parents,  see 15A V.S.A. § 1-102, and challenge the logic
  of a legislative scheme that recognizes the rights  of same-sex partners as
  parents, yet denies them -- and their children -- the same security as 
  spouses.  

       In considering this issue, it is important to emphasize at the outset
  that it is the Common  Benefits Clause of the Vermont Constitution we are
  construing, rather than its counterpart, the  Equal Protection Clause of
  the Fourteenth Amendment to the United States Constitution.  It is 

  

  altogether fitting and proper that we do so.  Vermont's constitutional
  commitment to equal rights  was the product of the successful effort to
  create an independent republic and a fundamental charter  of government,
  the Constitution of 1777, both of which preceded the adoption of the
  Fourteenth  Amendment by nearly a century.  As we explained in State v.
  Badger, 141 Vt. 430, 448-49, 450 A.2d 336, 347 (1982), "our constitution
  is not a mere reflection of the federal charter.  Historically  and
  textually, it differs from the United States Constitution.  It predates the
  federal counterpart, as  it extends back to Vermont's days as an
  independent republic.  It is an independent authority, and  Vermont's
  fundamental law."  

       As we explain in the discussion that follows, the Common Benefits
  Clause of the Vermont  Constitution differs markedly from the federal Equal
  Protection Clause in its language, historical  origins, purpose, and
  development.  While the federal amendment may thus supplement the 
  protections afforded by the Common Benefits Clause, it does not supplant it
  as the first and primary  safeguard of the rights and liberties of all
  Vermonters.  See id. (Court is free to "provide more  generous protection
  to rights under the Vermont Constitution than afforded by the federal
  charter");  State v. Jewett, 146 Vt. 221, 224, 500 A.2d 233, 235 (1985)
  (state constitution may protect  Vermonters "however the philosophy of the
  United States Supreme Court may ebb and flow"); see  generally H. Linde,
  First Things First, Rediscovering the States' Bill of Rights, 9 U. Balt. L.
  Rev.  379, 381-82 (1980); S. Pollock, State Constitutions as Separate
  Sources of Fundamental Rights, 35  Rutgers L. Rev. 707, 717-19 (1983).

        A. Historical Development

       In understanding the import of the Common Benefits Clause, this Court
  has often referred  

  

  to principles developed by the federal courts in applying the Equal
  Protection Clause.(FN3)  See, e.g.,  Choquette v. Perrault, 153 Vt. 45,
  51-52,569 A.2d 455, ___ (1989).  At the same time, however,  we have
  recognized that "[a]lthough the provisions have some similarity of purpose,
  they are not  identical."  Benning v. State, 161 Vt. 472, 485 n.7, 641 A.2d 757, 764 n.7 (1994).  Indeed, recent  Vermont decisions reflect a very
  different approach from current federal jurisprudence.  That  approach may
  be described as broadly deferential to the legislative prerogative to
  define and  advance governmental ends, while vigorously ensuring that the
  means chosen bear a just and  reasonable relation to the governmental
  objective.  

       Although our decisions over the last few decades have routinely
  invoked the  rhetoric of  

  

  suspect class favored by the federal courts, see, e.g., Choquette, 153 Vt.
  at 51, 569 A.2d  at 458,  there are notable exceptions.  The principal
  decision in this regard is the landmark case of State v.  Ludlow
  Supermarkets, Inc., 141 Vt. 261, 448 A.2d 791 (1982).  There, Chief Justice
  Albert  Barney, writing for the Court, invalidated a Sunday closing law
  that discriminated among classes of  commercial establishments on the basis
  of their size.  After noting that this Court, unlike its federal 
  counterpart, was not constrained by considerations of federalism and the
  impact of its decision on  fifty varying jurisdictions, the Court declared
  that Article 7 "only allows the statutory classifications  .  .  .  if a
  case of necessity can be established overriding the prohibition of Article
  7 by reference  to the "`common benefit, protection, and security of the
  people.'"  Id. at 268, 448 A.2d  at 795.   Applying this test, the Court
  concluded that the State's justifications for the disparate treatment of 
  large and small businesses failed to withstand constitutional scrutiny. 
  Id. at 269-70, 448 A.2d  at  796.

       Ludlow, as we later explained, did not alter the traditional
  requirement under Article 7 that  legislative classifications must
  "reasonably relate to a legitimate public purpose."  Choquette, 153  Vt. at
  52, 569 A.2d  at 459.  Nor did it overturn the principle that the
  justifications demanded of the  State may depend upon the nature and
  importance of the benefits and protections affected by the  legislation;
  indeed, this is implicit in the weighing process.  It did establish that
  Article 7 would  require a "more stringent" reasonableness inquiry than was
  generally associated with rational basis  review under the federal
  constitution.  State v. Brunelle, 148 Vt. 347, 351, 534 A.2d 198, 201-202 
  (1987); see also Hodgeman v. Jard Co., 157 Vt. 461, 464, 599 A.2d 1371,
  1373 (1991) (citing  Ludlow for principle that Article 7 "may require this
  Court to examine more closely distinctions  drawn by state government than
  would the Fourteenth 

  

  Amendment").  Ludlow did not override the  traditional deference accorded
  legislation having any reasonable relation to a legitimate public  purpose. 
  It simply signaled that Vermont courts -- having "access to specific
  legislative history and  all other proper resources" to evaluate the object
  and effect of State laws -- would engage in a  meaningful, case-specific
  analysis to ensure that any exclusion from the general benefit and 
  protection of the law would bear a just and reasonable relation to the
  legislative goals.  Ludlow,  141 Vt. at 268, 448 A.2d  at 795.(FN4)

       Although it is accurate to point out that since Ludlow our decisions
  have consistently recited  the federal rational-basis/strict-scrutiny
  tests, it is equally fair to observe that we have been less than 
  consistent in their application.  Just as commentators have noted the
  United States Supreme Court's  obvious yet unstated deviations from the
  rational-basis standard, so have this Court's holdings often  departed from
  the federal test.(FN5)   In Colchester Fire Dist. No. 2 v. 

  

  Sharrow, 145 Vt. 195, 198-99,  485 A.2d 134, 136-37 (1984), for example,
  the Court ostensibly applied a rational-basis test to  invalidate a payment
  scheme for revenue-bond assessments.  While acknowledging the broad 
  discretion traditionally accorded the Legislature in taxation and other
  areas of public welfare, the  Court nevertheless examined each of the
  district's rationales in detail and found them to be  unpersuasive in light
  of the record and administrative experience.  See id. at 200-201, 485 A.2d 
  at  137 (record established no "plausible relationship between the method
  of bond assessment and its  alleged purposes").

       In Choquette, 153 Vt. at 51, 569 A.2d  at 458, the Court again
  purported to apply rational-basis review under Article 7 in holding a
  fence-repair statute to be unconstitutional.  Not content to  accept
  arguments derived from a bygone agricultural era, the Court held that the
  policies underlying  the law were outdated and failed to establish a
  reasonable relation to the public purpose in the light  of contemporary
  circumstances.  See id. at 53-54, 569 A.2d at 459-60; see also Oxx v.
  Department  of Taxes, 159 Vt. 371, 376, 618 A.2d 1321, 1324 (1992) (income
  tax assessment violated Equal  Protection and Common Benefits Clauses as
  applied); 

  


  Lorrain v. Ryan, 160 Vt. 202, 215 628 A.2d 543, 551 (1993) (statutory
  scheme denying right of spouse of injured worker to sue third-party 
  tortfeasor for loss of consortium violated Equal Protection and Common
  Benefits Clauses).   

       The "more stringent" test was also implicit in our recent decision in
  MacCallum v.  Seymour's Administrator, 165 Vt. 452, 686 A.2d 935 (1996),
  which involved an Article 7  challenge to an intestacy statute that denied
  an adopted person's right of inheritance from collateral  kin.  While
  employing the rhetoric of minimal scrutiny, our analysis was more rigorous
  than  traditional federal rational-basis review.  Indeed, although the
  State proffered at least a conceivable  purpose for the legislative
  distinction between natural and adopted children, we held that the 
  classification was unreasonable, explaining that "[a]dopted persons have
  historically been a target of  discrimination," id. at 459, 686 A.2d  at
  939, and that however reasonable the classification when  originally
  enacted, it represented an "outdated" distinction today.  Id. at 460, 686 A.2d  at 939.   Thus, while deferential to the historical purpose underlying
  the classification, we demanded that it  bear a reasonable and just
  relation to the governmental objective in light of contemporary 
  conditions.

       This approach may also be discerned in the Court's recent opinion in
  Brigham v. State, 166  Vt. 246, 692 A.2d 384 (1997), addressing an Article
  7 challenge to the State's educational funding  system.  Consistent with
  prior decisions, the Court acknowledged the federal standard, see id. at 
  265, 692 A.2d  at 395, even as it eschewed the federal categories of
  analysis.  Indeed, after  weighing the State's justifications for the
  disparate funding of education against its impact upon  public-school
  students, the Court concluded; "Labels aside, we are simply unable to
  fathom a  legitimate governmental purpose to justify the gross inequities
  in educational opportunities 

  

  evident  from the record."  Id. at 265, 692 A.2d  at 396.

       Thus, "labels aside," Vermont case law has consistently demanded in
  practice that  statutory  exclusions from publicly-conferred benefits and
  protections must be "premised on an appropriate  and overriding public
  interest."  Ludlow, 141 Vt. at 268, 448 A.2d  at 795.  The rigid categories 
  utilized by the federal courts under the Fourteenth Amendment find no
  support in our early case  law and, while routinely cited, are often
  effectively ignored in our more recent decisions.  As  discussed more fully
  below, these decisions are consistent with the text and history of the
  Common  Benefits Clause which, similarly, yield no rigid categories or
  formulas of analysis.  The balancing  approach utilized in Ludlow and
  implicit in our recent decisions reflects the language, history, and 
  values at the core of the Common Benefits Clause.  We turn, accordingly, to
  a brief examination of  constitutional language and history.

	B. Text

       We typically look to a variety of sources in construing our
  Constitution, including the  language of the provision in question,
  historical context, case-law development, the construction of  similar
  provisions in other state constitutions, and sociological materials.  See
  Benning, 161 Vt. at  476, 641 A.2d 759.  The Vermont Constitution was
  adopted with little recorded debate and has  undergone remarkably little
  revision in its 200-year history.  Recapturing the meaning of a  particular
  word or phrase as understood by a generation more than two centuries
  removed from our  own requires, in some respects, an immersion in the
  culture and materials of the past more suited to  the work of professional
  historians than courts and lawyers.  See generally, H. Powell, Rules for 
  Originalists, 73 Va. L. Rev. 659, 659-61 (1987); P. Brest, The Misconceived
  Quest for the  Original Understanding, 60 B.U.L. Rev. 204, 204-209 (1980). 
  The responsibility 

  

  of the Court,  however, is distinct from that of the historian, whose
  interpretation of past thought and actions  necessarily informs our
  analysis of current issues but cannot alone resolve them.  See Powell, 
  supra, at 662-68; Brest, supra, at 237.  As we observed in State v.
  Kirchoff, 156 Vt. 1, 6, 587 A.2d 988, 992 (1991), "our duty is to discover
  the core value that gave life to Article [7]."  (Emphasis added).  Out of
  the shifting and complicated kaleidoscope of events, social forces, and 
  ideas that culminated in the Vermont Constitution of 1777, our task is to
  distill the essence, the  motivating ideal of the framers.  The challenge
  is to remain faithful to that historical ideal, while  addressing
  contemporary issues that the framers undoubtedly could never have imagined.

       We first focus on the words of the Constitution themselves, for, as
  Chief Justice Marshall  observed, "although the spirit of an instrument,
  especially of a constitution, is to be respected not  less than its letter,
  yet the spirit is to be collected chiefly from its words."  Sturges v. 
  Crowningshield, 17 U.S. (4 Wheat.) 122, 202 (1819).  One of the fundamental
  rights included in  Chapter I of the Vermont Constitution of 1777, entitled
  "A Declaration of Rights of the Inhabitants  of the State of Vermont," the
  Common Benefits Clause as originally written provided:

     That government is, or ought to be, instituted for the common 
     benefit, protection, and security of the people, nation or community; 
     and not for the particular emolument or advantage of any single 
     man, family or set of men, who are a part only of that community; 
     and that the community hath an indubitable, unalienable and 
     indefeasible right, to reform, alter or abolish government, in such 
     manner as shall be, by that community, judged most conducive to 
     the public weal.

  

Vt. Const. of 1777, ch. I, art. VI.(FN6)

       The first point to be observed about the text is the affirmative and
  unequivocal mandate of  the first section, providing that government is
  established for the common benefit of the people and  community as a whole. 
  Unlike the Fourteenth Amendment, whose origin and language reflect the 
  solicitude of a dominant white society for an historically-oppressed
  African-American minority (no  state shall "deny" the equal protection of
  the laws), the Common Benefits Clause mirrors the  confidence of a
  homogeneous, eighteenth-century group of men aggressively laying claim to
  the  same rights as their peers in Great Britain or, for that matter, New
  York, New Hampshire, or the  Upper Connecticut River Valley.  See F.
  Mahady, Toward a Theory of State Constitutional  Jurisprudence: A Judge's
  Thoughts, 13 Vt. L. Rev. 145, 151-52 (1988) (noting distinct eighteenth-
  century origins of Article 7).  The same assumption that all the people
  should be afforded all the  benefits and protections bestowed by government
  is also reflected in the second section, which   prohibits not the denial
  of rights to the oppressed, but rather the conferral of advantages or 
  emoluments upon the privileged.(FN7)

       The words of the Common Benefits Clause are revealing.  While they do
  not, to be sure,  set forth a fully-formed standard of analysis for
  determining the constitutionality of a given 

  


  statute,  they do express broad principles which usefully inform that
  analysis.  Chief among these is the  principle of inclusion.  As explained
  more fully in the discussion that follows, the specific  proscription
  against governmental favoritism toward not only groups or "set[s] of men,"
  but also  toward any particular "family" or "single man," underscores the
  framers' resentment of political  preference of any kind.  The affirmative
  right to the "common benefits and protections" of  government and the
  corollary proscription of favoritism in the distribution of public
  "emoluments  and advantages" reflect the framers' overarching objective
  "not only that everyone enjoy equality  before the law or have an equal
  voice in government but also that everyone have an equal share in  the
  fruits of the common enterprise."  W. Adams, The First American
  Constitutions 188 (1980)  (emphasis added).  Thus, at its core the Common
  Benefits Clause expressed a vision of government  that afforded every
  Vermonter its benefit and protection and provided no Vermonter particular 
  advantage. 

	C. Historical Context

       Although historical research yields little direct evidence of the
  framers' intentions, an  examination of the ideological origins of the
  Common Benefits Clause casts a useful light upon the  inclusionary
  principle at its textual core.  Like other provisions of the Vermont
  Constitution of  1777, the Common Benefits Clause was borrowed verbatim
  from the Pennsylvania Constitution of  1776, which was based, in turn, upon
  a similar provision in the Virginia Declaration of Rights of  1776.  See J.
  Shaeffer, A Comparison of the First Constitutions of Vermont and
  Pennsylvania, 43  Vt. Hist. 33, 33-35 (1975); J. Selsam, The Pennsylvania
  Constitution of 1776: A Study in  Revolutionary Democracy 178 (1936).  The
  original Virginia clause differed from the Pennsylvania  and Vermont
  provisions only in the second section, which 

  

  was contained in a separate article and  provided "[t]hat no man, or set of
  men, are entitled to exclusive or separate emoluments or  privileges from
  the community, but in consideration of public services."  See Virginia
  Declaration  of Rights, art. IV (reprinted in 11 West's Encyclopedia of
  American Law 82 (1998)).(FN8)

       Although aimed at Great Britain, the American Revolution -- as
  numerous historians have  noted -- also tapped deep-seated domestic
  antagonisms.  The planter elite in Virginia, the  proprietors of Eastern
  Pennsylvania, and New Yorkers claiming Vermont lands were each the  object
  of long-standing grievances.  Selsam, supra, at 255-56; R. Shalhope,
  Bennington and the  Green Mountain Boys: The Emergence of Liberal Democracy
  in Vermont, 1760-1850 at 70-97  (1996); G. Wood, The Creation of the
  American Republic, 1776-1787 at 75-82 (1969).  Indeed,  the revolt against
  Great Britain unleashed what one historian, speaking of Pennsylvania, has
  called  "a revolution within a revolution."  Selsam, supra, at 1.  By
  attempting to claim equal rights for  Americans against the English,
  regardless of birthright or social status, "even the most aristocratic  of
  southern Whig planters  .  .  .  were pushed into creating an egalitarian
  ideology that could be  and even as early as 1776 was being turned against
  themselves."  Wood, supra, at 83.  While not  opposed to the concept of a
  social elite, the framers of the first state constitutions believed that it 
  should consist of a "natural aristocracy" of talent, rather than an
  entrenched clique favored by birth  or social connections.  See id. at
  479-80.  As the preeminent 

  

  historian of the ideological origins of  the Revolution explained, "while
  `equality before the law' was a commonplace of the time,  `equality without
  respect to the dignity of the persons concerned' was not; [the
  Revolution's]  emphasis on social equivalence was significant."  B. Bailyn,
  The Ideological Origins of the  American Revolution 307 (1967).  Thus,
  while the framers' "egalitarian ideology" conspicuously  excluded many
  oppressed people of the eighteenth century -- including African-Americans,
  Native  Americans, and women -- it did nevertheless represent a genuine
  social revolt pitting republican  ideals of "virtue," or talent and merit,
  against a perceived aristocracy of privilege both abroad and  at home.  

       Vermont was not immune to the disruptive forces unleased by the
  Revolution.  One historian  has described Vermont on the eve of the
  Revolution as rife with "factional rivalry [and] regional  jealousy."  G.
  Aichele, Making the Vermont Constitution: 1777-1824, 56 Vt. Hist. 166, 177 
  (1988).  Competing factions in the Champlain and Upper Connecticut River
  Valleys had long vied  for political and economic dominance.  See id. at
  180. Echoing Selsam on Pennsylvania, another  historian has spoken of
  "Vermont's double revolution -- a rebellion within a rebellion" to describe 
  the successful revolt against both Great Britain and New York by the yeoman
  farmers, small-scale  proprietors, and moderate land speculators who
  comprised the bulk of the Green Mountain Boys.   D. Smith, Green Mountain
  Insurgency: Transformation of New York's Forty-Year Land War, 64  Vt. Hist.
  197, 197-98, 224 (1996); see also Shalhope, supra, at 169 (egalitarian
  ideology of  American Revolution "resonated powerfully with the visceral
  feelings" of Green Mountain Boys  and others in Vermont).

       The powerful movement for "social equivalence" unleashed by the
  Revolution ultimately  found its most complete expression in the first
  state constitutions adopted in the early years of 

  

  the  rebellion.  In Pennsylvania, where social antagonisms were most acute,
  the result was a  fundamental charter that has been described as "the most
  radical constitution of the Revolution."   Wood, supra,  at 84-85; see also
  Shaeffer, supra, at 35-36.  Yet the Pennsylvania Constitution's 
  egalitarianism was arguably eclipsed the following year by the Vermont
  Constitution of 1777.  In  addition to the commitment to government for the
  "common benefit, protection, and security," it  contained novel provisions
  abolishing slavery, eliminating property qualifications for voting, and 
  calling for the governor, lieutenant governor, and twelve councilors to be
  elected by the people  rather than appointed by the Legislature.  See
  Shalhope, supra, at 171-72.  These and other  provisions have led one
  historian to observe that Vermont's first charter was the "most democratic 
  constitution produced by any of the American states."  See id. at 172.  

       The historical origins of the Vermont Constitution thus reveal that
  the framers, although  enlightened for their day, were not principally
  concerned with civil rights for African-Americans  and other minorities,
  but with equal access to public benefits and protections for the community
  as  a whole.  The concept of equality at the core of the Common Benefits
  Clause was not the  eradication of racial or class distinctions, but rather
  the elimination of artificial governmental  preferments and advantages. 
  The Vermont Constitution would ensure that the law uniformly  afforded
  every Vermonter its benefit, protection, and security so that social and
  political  preeminence would reflect differences of capacity, disposition,
  and virtue, rather than governmental  favor and privilege.(FN9)

     	

  [continues text of FN9 (see "Footnotes" below)]

  

	D. Analysis under Article 7

       The language and history of the Common Benefits Clause thus reinforce
  the conclusion that  a relatively uniform standard, reflective of the
  inclusionary principle at its core, must govern our  analysis of laws
  challenged under the Clause.  Accordingly, we conclude that this approach,
  rather  than the rigid, multi-tiered analysis evolved by the federal courts
  under the Fourteenth Amendment,  shall direct our inquiry under Article 7. 
  As noted, Article 7 is intended to ensure that the benefits  and
  protections conferred by the State are for the common benefit of the
  community and are not for  the advantage of persons "who are a part only of
  that community."  When a statute is challenged  under Article 7, we first
  define that "part of the community" disadvantaged by the law.  We  examine
  the statutory basis that distinguishes those protected by the law from
  those excluded from  the State's protection.  Our concern here is with
  delineating, not with labelling the excluded class as  "suspect,"
  "quasi-suspect," or "non-suspect" for purposes of determining different
  levels of judicial  scrutiny.(FN10)

  


       We look next to the government's purpose in drawing a classification
  that includes some  members of the community within the scope of the
  challenged law but excludes others.  Consistent  with Article 7's guiding
  principle of affording the protection and benefit of the law to all members 
  of the Vermont community, we examine the nature of the classification to
  determine whether it is  reasonably necessary to accomplish the State's
  claimed objectives.   

  

       We must ultimately ascertain whether the omission of a part of the
  community from the  benefit, protection and security of the challenged law
  bears a reasonable and just relation to the  governmental purpose. 
  Consistent with the core presumption of inclusion, factors to be considered 
  in this determination may include: (1) the significance of the benefits and
  protections of the  challenged law; (2) whether the omission of members of
  the community from the benefits and  protections of the challenged law
  promotes the government's stated goals; and (3) whether the  classification
  is significantly underinclusive or overinclusive.  As Justice Souter has
  observed in a  different context, this approach necessarily "calls for a
  court to assess the relative `weights' or  dignities of the contending
  interests."  Washington v. Glucksberg, 521 U.S. 702, 767 (1997)  (Souter,
  J., concurring).  What keeps that assessment grounded and objective, and
  not based upon  the private sensitivities or values of individual judges,
  is that in assessing the relative weights of  competing interests courts
  must look to the history and "`traditions from which [the State] 
  developed'" as well as those "`from which it broke,'" id. at 767 (quoting
  Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)), and not
  to merely personal notions.  Moreover, the  process of review is
  necessarily "one of close criticism going to the details of the opposing
  interests  and their relationships with the historically recognized
  principles that lend them weight or value."  Id. at 769 (emphasis
  added).(FN11)

  

       Ultimately, the answers to these questions, however useful, cannot
  substitute for "`[t]he  inescapable fact .  .  .  that adjudication of . . 
  .  claims may call upon the Court in interpreting the  Constitution to
  exercise that same capacity which by tradition courts always have
  exercised:  reasoned judgment.'"  Id. (quoting Planned Parenthood of
  Southeastern Pa. v. Casey, 505 U.S. 833, 849 (1992)).  The balance between
  individual liberty and organized society which courts are  continually
  called upon to weigh does not lend itself to the precision of a scale.  It
  is, indeed, a  recognition of the imprecision of "reasoned judgment" that
  compels both judicial restraint and  respect for tradition in
  constitutional interpretation.(FN12)

	E. The Standard Applied

       With these general precepts in mind, we turn to the question of
  whether the exclusion of  same-sex couples from the benefits and
  protections incident to marriage under Vermont law  

  

  contravenes Article 7.  The first step in our analysis is to identify
  the nature of the statutory  classification.  As noted, the marriage
  statutes apply expressly to opposite-sex couples. Thus, the  statutes
  exclude anyone who wishes to marry someone of the same sex.(FN13)

       

       Next, we must identify the governmental purpose or purposes to be
  served by the statutory  classification.  The principal purpose the State
  advances in support of the excluding same-sex  couples from the legal
  benefits of marriage is the government's interest in "furthering the link 
  between procreation and child rearing."  The State has a strong interest,
  it argues, in promoting a  permanent commitment between couples who have
  children to ensure that their offspring are  considered legitimate and
  receive ongoing parental support.  The State contends, further, that the 
  Legislature could reasonably believe that sanctioning same-sex unions
  "would diminish society's  perception of the link between procreation and
  child rearing .  . . [and] advance the notion that  fathers or mothers  . 
  .  . are mere surplusage to the functions of procreation and child
  rearing."   The State argues that since same-sex couples cannot conceive 

  

  a child on their own, state-sanctioned  same-sex unions "could be seen by
  the Legislature to separate further the connection between  procreation and
  parental responsibilities for raising children."  Hence, the Legislature is
  justified,  the State concludes, "in using the marriage statutes to send a
  public message that procreation and  child rearing are intertwined."  

       Do these concerns represent valid public interests that are reasonably
  furthered by the  exclusion of same-sex couples from the benefits and
  protections that flow from the marital relation?  It is beyond dispute that
  the State has a legitimate and long-standing interest in promoting a 
  permanent commitment between couples for the security of their children. It
  is equally undeniable  that the State's interest has been advanced by
  extending formal public sanction and protection to the  union, or marriage,
  of those couples considered capable of having children, i.e., men and
  women.   And there is no doubt that the overwhelming majority of births
  today continue to result from  natural conception between one man and one
  woman. See J. Robertson, Assisted Reproductive  Technology and the Family,
  47 Hast. L. J. 911, 911-12 (1996) (noting the number of births  resulting
  from assisted-reproductive technology, which remain small compared to
  overall number  of births).

       It is equally undisputed that many opposite-sex couples marry for
  reasons unrelated to  procreation, that some of these couples never intend
  to have children, and that others are incapable  of having children. 
  Therefore, if the purpose of the statutory exclusion of same-sex couples is
  to  "further[] the link between procreation and child rearing," it is
  significantly under-inclusive.  The  law extends the benefits and
  protections of marriage to many persons with no logical connection to  the
  stated governmental goal.

       Furthermore, while accurate statistics are difficult to obtain, there
  is no dispute that a  

  

  significant number of children today are actually being raised by same-sex
  parents, and that  increasing numbers of children are being conceived by
  such parents through a variety of assisted-reproductive techniques.  See
  D. Flaks, et al., Lesbians Choosing Motherhood: A Comparative  Study of
  Lesbian and Heterosexual Parents and Their Children, 31 Dev. Psychol. 105,
  105 (1995)  (citing estimates that between 1.5 and 5 million lesbian
  mothers resided with their children in  United States between 1989 and
  1990, and that thousands of lesbian mothers have chosen  motherhood through
  donor insemination or adoption); G. Green and F. Bozett, Lesbian Mothers 
  and Gay Fathers, in Homosexuality: Research Implications for Public Policy
  197, 198 (J.  Gonsiorek et al. eds., 1991) (estimating that numbers of
  children of either gay fathers or  lesbian  mothers range between six and
  fourteen million); C. Patterson, Children of the Lesbian Baby  Boom:
  Behavioral Adjustment, Self-Concepts, and Sex Role Identity, in Lesbian and
  Gay  Psychology (B. Greene et al. eds., 1994) (observing that although
  precise estimates are difficult,  number of families with lesbian mothers
  is growing); E. Shapiro & L. Schultz, Single-Sex  Families: The Impact of
  Birth Innovations Upon Traditional Family Notions, 24 J. Fam. L. 271,  281
  (1985) ("[I]t is a fact that children are being born to single-sex families
  on a biological basis,  and that they are being so born in considerable
  numbers").

       Thus, with or without the marriage sanction, the reality today is that
  increasing numbers of  same-sex couples are employing increasingly
  efficient assisted-reproductive techniques to conceive  and raise children. 
  See L. Ikemoto, The In/Fertile, the Too Fertile, and the Dysfertile, 47
  Hast. L.  J. 1007, 1056 & n.170 (1996).  The Vermont Legislature has not
  only recognized this reality, but  has acted affirmatively to remove legal
  barriers so that same-sex couples may legally adopt and rear  the children
  conceived through such efforts.  See 15A V.S.A. § 1-102(b) 

  

  (allowing partner of  biological parent to adopt if in child's best
  interest without reference to sex).  The State has also  acted to expand
  the domestic relations laws to safeguard the interests of same-sex parents
  and their  children when such couples terminate their domestic
  relationship.  See 15A V.S.A. § 1-112  (vesting family court with
  jurisdiction over parental rights and responsibilities, parent-child
  contact,  and child support when unmarried persons who have adopted minor
  child "terminate their domestic  relationship").

       Therefore, to the extent that the State's purpose in licensing civil
  marriage was, and is, to  legitimize children and provide for their
  security, the statutes plainly exclude many same-sex  couples who are no
  different from opposite-sex couples with respect to these objectives.  If 
  anything, the exclusion of same-sex couples from the legal protections
  incident to marriage exposes  their children to the precise risks that the
  State argues the marriage laws are designed to secure  against. In short,
  the marital exclusion treats persons who are similarly situated for
  purposes of the  law, differently.   

       The State also argues that because same-sex couples cannot conceive a
  child on their own,  their exclusion promotes a "perception of the link
  between procreation and child rearing," and that  to discard it would
  "advance the notion that mothers and fathers .  .  .  are mere surplusage
  to the  functions of procreation and child rearing"  Apart from the bare
  assertion, the State offers no  persuasive reasoning to support these
  claims.  Indeed, it is undisputed that most of those who utilize 
  non-traditional means of conception are infertile married couples, see
  Shapior and Schultz, supra, at  275, and that many assisted-reproductive
  techniques involve only one of the married partner's  genetic material, the
  other being supplied by a third party through sperm, egg, or embryo
  donation.  See E. May, Barren in the Promised Land: Childless 

  

  Americans and the Pursuit of Happiness,  217, 242 (1995); Robertson, supra,
  at 911-12, 922-27. The State does not suggest that the use of  these
  technologies undermines a married couple's sense of parental
  responsibility, or fosters the  perception that they are "mere surplusage"
  to the conception and parenting of the child so  conceived.  Nor does it
  even remotely suggest that access to such techniques ought to be restricted 
  as a matter of public policy to "send a public message that procreation and
  child rearing are  intertwined."  Accordingly, there is no reasonable basis
  to conclude that a same-sex couple's use of  the same technologies would
  undermine the bonds of parenthood, or society's perception of  parenthood. 

       The question thus becomes whether the exclusion of a relatively small
  but significant  number of otherwise qualified same-sex couples from the
  same legal benefits and protections  afforded their opposite-sex
  counterparts contravenes the mandates of Article 7.  It is, of course, 
  well settled that statutes are not necessarily unconstitutional because
  they fail to extend legal  protection to all who are similarly situated. 
  See Benning, 161 Vt. at 486, 641 A.2d  at 764 ("A  statute need not regulate
  the whole of a field to pass constitutional muster.").  Courts have upheld 
  underinclusive statutes out of a recognition that, for reasons of
  pragmatism or administrative  convenience, the legislature may choose to
  address problems incrementally.  See, e.g., City of  New Orleans v. Dukes,
  427 U.S. 297, 303 (1976) (legislature may adopt regulations "that only 
  partially ameliorate a perceived evil"); Williamson v. Lee Optical of
  Okla., Inc., 348 U.S. 483,  489 (1955) ("The legislature may select one
  phase of one field and apply a remedy there, neglecting  the others."). 
  The State does not contend, however, that the same-sex exclusion is
  necessary as a  matter of pragmatism or administrative convenience.  We
  turn, accordingly, from the principal  justifications advanced by the State
  to the interests asserted 

  

  by plaintiffs. 

       As noted, in determining whether a statutory exclusion reasonably
  relates to the  governmental purpose it is appropriate to consider the
  history and significance of the benefits  denied. See Glucksberg, 521 U.S.  at 710 (to assess importance of rights and interests affected by  statutory
  classifications, courts must look to "history, legal traditions and
  practices").  What do  these considerations reveal about the benefits and
  protections at issue here?  In Loving v. Virginia,  388 U.S. 1, 12 (1967),
  the United States Supreme Court, striking down Virginia's anti-
  miscegenation law, observed that "[t]he freedom to marry has long been
  recognized as one of the  vital personal rights."  The Court's point was
  clear; access to a civil marriage license and the  multitude of legal
  benefits, protections, and obligations that flow from it significantly
  enhance the  quality of life in our society. 

       The Supreme Court's observations in Loving merely acknowledged what
  many states,  including Vermont, had long recognized.  One hundred
  thirty-seven years before Loving, this  Court characterized the reciprocal
  rights and responsibilities flowing from the marriage laws as "the  natural
  rights of human nature."  See Overseers of the Poor, 2 Vt. at 159. 
  Decisions in other New  England states noted the unique legal and economic
  ramifications flowing from the marriage  relation.  See, e.g., Adams v.
  Palmer, 51 Maine 481, 485 (Me. 1863) ("it establishes fundamental  and most
  important domestic relations").  Early decisions recognized that a marriage
  contract,  although similar to other civil agreements, represents much more
  because once formed, the law  imposes a variety of obligations,
  protections, and benefits.  As the Maine Supreme Judicial Court  observed,
  the rights and obligations of marriage rest not upon contract, "but upon
  the general law  of the State, statutory or common, which defines and
  prescribes those 

  

  rights duties and obligations.  They are of law, not contract."  See id. at
  483; see also Ditson v. Ditson, 4 R.I. 87, 105 (1856)  (marriage transcends
  contract because "it gives rights, and imposes duties and restrictions upon
  the  parties to it").  In short, the marriage laws transform a private
  agreement into a source of  significant public benefits and protections.

       While the laws relating to marriage have undergone many changes during
  the last century,  largely toward the goal of equalizing the status of
  husbands and wives, the benefits of marriage  have not diminished in value. 
  On the contrary, the benefits and protections incident to a marriage 
  license under Vermont law have never been greater.  They include, for
  example, the right to  receive a portion of the estate of a spouse who dies
  intestate and protection against disinheritance  through elective share
  provisions, under 14 V.S.A. §§ 401-404, 551; preference in being appointed 
  as the personal representative of a spouse who dies intestate, under 14
  V.S.A. § 903; the right to  bring a lawsuit for the wrongful death of a
  spouse, under 14 V.S.A. § 1492; the right to bring an  action for loss of
  consortium, under 12 V.S.A. § 5431; the right to workers' compensation
  survivor  benefits under 21 V.S.A. § 632; the right to spousal benefits
  statutorily guaranteed to public  employees, including health, life,
  disability, and accident insurance, under 3 V.S.A. § 631; the  opportunity
  to be covered as a spouse under group life insurance policies issued to an
  employee,  under 8 V.S.A. § 3811; the opportunity to be covered as the
  insured's spouse under an individual  health insurance policy, under 8
  V.S.A. § 4063; the right to claim an evidentiary privilege for  marital
  communications, under V.R.E. 504; homestead rights and protections, under
  27 V.S.A. §§  105-108, 141-142; the presumption of joint ownership of
  property and the concomitant right of  survivorship, under 27 V.S.A. § 2;
  hospital visitation and other rights incident to the medical  treatment of
  a family member, under 

  

  18 V.S.A. § 1852; and the right to receive, and the obligation  to provide,
  spousal support, maintenance, and property division in the event of
  separation or  divorce, under 15 V.S.A. §§ 751-752.  Other courts and
  commentators have noted the collection of  rights, powers, privileges, and
  responsibilities triggered by marriage.  See generally Baehr v.  Lewin, 852 P.2d 44, 59 (Haw. 1993); D. Chambers, What If? The Legal Consequences of 
  Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L.
  Rev. 447, passim;  J. Robbenolt & M. Johnson, Legal Planning for Unmarried
  Committed Parties: Empirical Lessons  for a Preventive and Therapeutic
  Approach, 41 Ariz. L. Rev. 417, passim (1999); J. Trosino,  American
  Wedding: Same-Sex Marriage and the Miscegenation Analogy, 73 B.U.L. Rev.
  93, 96  (1993).  

       While other statutes could be added to this list, the point is clear. 
  The legal benefits and  protections flowing from a marriage license are of
  such significance that any statutory exclusion  must necessarily be
  grounded on public concerns of sufficient weight, cogency, and authority
  that  the justice of the deprivation cannot seriously be questioned. 
  Considered in light of the extreme  logical disjunction between the
  classification and the stated purposes of the law  -- protecting  children
  and "furthering the link between procreation and child rearing" -- the
  exclusion falls  substantially short of this standard.  The laudable
  governmental goal of promoting a commitment  between married couples to
  promote the security of their children and the community as a whole 
  provides no reasonable basis for denying the legal benefits and protections
  of marriage to same-sex  couples, who are no differently situated with
  respect to this goal than their opposite-sex  counterparts.  Promoting a
  link between procreation and childrearing similarly fails to support the 
  exclusion.  We turn, accordingly, to the remaining interests identified by
  the State in support of the  statutory exclusion.  

  

       The State asserts that a number of additional rationales could support
  a legislative decision  to exclude same-sex partners from the statutory
  benefits and protections of marriage.  Among these  are the State's
  purported interests in "promoting child rearing in a setting that provides
  both male  and female role models," minimizing the legal complications of
  surrogacy contracts and sperm  donors, "bridging differences" between the
  sexes, discouraging marriages of convenience for tax,  housing or other
  benefits, maintaining uniformity with marriage laws in other states, and
  generally  protecting marriage from "destabilizing changes."  The most
  substantive of the State's remaining  claims relates to the issue of
  childrearing.  It is conceivable that the Legislature could conclude that 
  opposite-sex partners offer advantages in this area, although we note that
  child-development experts  disagree and the answer is decidedly uncertain. 
  The argument, however, contains a more  fundamental flaw, and that is the
  Legislature's endorsement of a policy diametrically at odds with  the
  State's claim.  In 1996, the Vermont General Assembly enacted, and the
  Governor signed, a  law removing all prior legal barriers to the adoption
  of children by same-sex couples.  See 15A  V.S.A. § 1-102.  At the same
  time, the Legislature provided additional legal protections in the  form of
  court-ordered child support and parent-child contact in the event that
  same-sex parents  dissolved their "domestic relationship."  Id. § 1-112. 
  In light of these express policy choices, the  State's arguments that
  Vermont public policy favors opposite-sex over same-sex parents or 
  disfavors the use of artificial reproductive technologies, are patently
  without substance.

       Similarly, the State's argument that Vermont's marriage laws serve a
  substantial  governmental interest in maintaining uniformity with other
  jurisdictions cannot be reconciled with  Vermont's recognition of unions,
  such as first-cousin marriages, not uniformly sanctioned 

  

  in other  states.  See 15 V.S.A. §§ 1-2 (consanguinity statutes do not
  exclude first cousins); 1 H. Clark, The  Law of Domestic Relations in the
  United States § 2.9, at 153-54 (2d ed. 1987) (noting states that  prohibit
  first-cousin marriage).  In an analogous context, Vermont has sanctioned
  adoptions by  same-sex partners, see 15A V.S.A. § 1-102, notwithstanding
  the fact that many states have not.   See generally, Annotation, Adoption
  of Child By Same-Sex Partners, 27 A.L.R.5th 54, 68-72  (1995).  Thus, the
  State's claim that Vermont's marriage laws were adopted because the
  Legislature  sought to conform to those of the other forty-nine states is
  not only speculative, but refuted by two  relevant legislative choices
  which demonstrate that uniformity with other jurisdictions has not been  a
  governmental purpose.

       The State's remaining claims (e.g., recognition of same-sex unions
  might foster marriages  of convenience or otherwise affect the institution
  in "unpredictable" ways) may be plausible  forecasts as to what the future
  may hold, but cannot reasonably be construed to provide a  reasonable and
  just basis for the statutory exclusion.  The State's conjectures are not,
  in any event,  susceptible to empirical proof before they occur.(FN14)

       Finally, it is suggested that the long history of official intolerance
  of intimate same-sex  relationships cannot be reconciled with an
  interpretation of Article 7 that would give state-sanctioned benefits and
  protection to individuals of the same sex who commit to a permanent 
  domestic relationship.  We find the argument to be unpersuasive for several
  reasons.  First, 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.  See MacCallum,  165 Vt. at
  459-60, 686 A.2d  at 939 (holding that although adopted persons had
  "historically been a  target of discrimination," social prejudices failed
  to support their continued exclusion from intestacy  law).  As we observed
  recently in Brigham, 166 Vt. at 267, 692 A.2d  at 396, "equal protection of 
  the laws cannot be limited by eighteenth-century standards."  Second,
  whatever claim may be made  in light of the undeniable fact that federal
  and state statutes -- including those in Vermont -- have  historically
  disfavored same-sex relationships, more recent legislation plainly
  undermines the  contention.  See, e.g., Laws of Vermont, 1977, No. 51, § 2,
  3 (repealing former § 2603 of Title  13, which criminalized fellatio).  In
  1991, Vermont was one of the first states to enact statewide  legislation
  prohibiting discrimination in employment, housing, and other services based
  on sexual  orientation.  See 21 V.S.A. § 495 (employment); 9 V.S.A. § 4503
  (housing); 8 V.S.A. § 4724  (insurance); 9 V.S.A. § 4502 (public
  accommodations).  Sexual orientation is among the categories  specifically
  protected against hate-motivated crimes in Vermont.  See 13 V.S.A. § 1455.  
  Furthermore, as noted earlier, recent enactments of the General Assembly
  have removed barriers to  adoption by same-sex couples, and have extended
  legal rights and protections to such couples who  dissolve their "domestic
  relationship."  See 15A V.S.A. §§ 1-102, 1-112.  

       Thus, viewed in the light of history, logic, and experience, we
  conclude that none of the  interests asserted by the State provides a
  reasonable and just basis for the continued exclusion of  same-sex couples
  from the benefits incident to a civil marriage license under Vermont law.  
  Accordingly, in the faith that a case beyond the imagining of the framers
  of our Constitution 

  

  may,  nevertheless, be safely anchored in the values that infused it, we
  find a constitutional obligation to  extend to plaintiffs the common
  benefit, protection, and security that Vermont law provides  opposite-sex
  married couples.  It remains only to determine the appropriate means and
  scope of  relief compelled by this constitutional mandate.

	F. Remedy	

       It is important to state clearly the parameters of today's ruling. 
  Although plaintiffs sought  injunctive and declaratory relief designed to
  secure a marriage license, their claims and arguments  here have focused
  primarily upon the consequences of official exclusion from the statutory
  benefits,  protections, and security incident to marriage under Vermont
  law.  While some future case may  attempt to establish that --
  notwithstanding equal benefits and protections under Vermont law -- the 
  denial of a marriage license operates per se to deny constitutionally-
  protected rights, that is not the  claim we address today.

       We hold only that plaintiffs are entitled under Chapter I, Article 7,
  of the Vermont  Constitution to obtain the same benefits and protections
  afforded by Vermont law to married  opposite-sex couples.  We do not
  purport to infringe upon the prerogatives of the Legislature to  craft an
  appropriate means of addressing this constitutional mandate, other than to
  note that the  record here refers to a number of potentially constitutional
  statutory schemes from other  jurisdictions.  These include what are
  typically referred to as "domestic partnership" or "registered 
  partnership" acts, which generally establish an alternative legal status to
  marriage for same-sex  couples, impose similar formal requirements and
  limitations, create a parallel licensing or  registration scheme, and
  extend all or most of the same rights and obligations provided by the law 
  to married partners.  See Report, Hawaii Commission on Sexual Orientation 

  

  and the Law  (Appendix D-1B) (1995) (recommending enactment of "Universal
  Comprehensive Domestic  Partnership Act" to establish equivalent licensing
  and eligibility scheme and confer upon domestic  partners "the same rights
  and obligations under the law that are conferred on spouses in a marriage 
  relationship") (emphasis added); C. Christensen, If Not Marriage? On
  Securing Gay and Lesbian  Family Values by a "Simulacrum of Marriage", 66
  Fordham L. Rev. 1699, 1734-45 (1998)  (discussing various domestic and
  foreign domestic partnership acts); A. Friedman, Same-Sex  Marriage and the
  Right to Privacy: Abandoning Scriptural, Canonical, and Natural Law Based 
  Definitions of Marriage, 35 How. L. J. 173, 217-220 n. 237 (reprinting
  Denmark's "Registered  Partnership Act"); see generally, Note, A More
  Perfect Union: A Legal and Social Analysis of  Domestic Partnership
  Ordinances, 92 Colum. L. Rev. 1164 (1992) (discussing local domestic 
  partnership laws); M. Pedersen, Denmark: Homosexual Marriage and New Rules
  Regarding  Separation and Divorce, 30 J. Fam. L. 289 (1992) (discussing
  amendments to Denmark's  Registered Partnership Act); M. Roth, The
  Norwegian Act on Registered Partnership for  Homosexual Couples, 35 J. Fam.
  L. 467 (1997) (discussing Norway's Act on Registered  Partnership for
  Homosexual Couples).  We do not intend specifically to endorse any one or
  all of  the referenced acts, particularly in view of the significant
  benefits omitted from several of the laws. 

       Further, while the State's prediction of "destabilization" cannot be a
  ground for denying  relief, it is not altogether irrelevant.  A sudden
  change in the marriage laws or the statutory benefits  traditionally
  incidental to marriage may have disruptive and unforeseen consequences. 
  Absent  legislative guidelines defining the status and rights of same-sex
  couples, consistent with  constitutional requirements, uncertainty and
  confusion could result.  Therefore, we hold that the  

  

  current statutory scheme shall remain in effect for a reasonable period of
  time to enable the  Legislature to consider and enact implementing
  legislation in an orderly and expeditious fashion.(FN15)  See Linkletter v.
  Walker, 381 U.S. 618, 628 (1965) (no constitutional rule impedes court's 
  discretion to postpone operative date of ruling where exigencies require);
  Smith v. State, 473 P.2d 937, 950 (Idaho 1970) (staying operative effect
  of decision abrogating rule of sovereign immunity  until adjournment of
  next legislative session); Spanel v. Mounds View School Dist. No. 621, 118 N.W.2d 795, 803-04 (Minn. 1962) (same).  In the event that the benefits and
  protections in  question are not statutorily granted, plaintiffs may
  petition this Court to order the remedy they  originally sought.

       Our colleague asserts that granting the relief requested by plaintiffs
  -- an injunction  prohibiting defendants from withholding a marriage
  license --  is our "constitutional duty."  Post,  at 3.  (Johnson, J.,
  concurring in part and dissenting in part).  We believe the argument is 
  predicated upon a fundamental misinterpretation of our opinion.  It appears
  to assume that we hold  plaintiffs are entitled to a marriage license.  We
  do not.  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.  That the State could do so through a marriage
  license is obvious.   But it is not required to do so, and the mandate
  proposed by our colleague is inconsistent with the  Court's holding.  

       The dissenting and concurring opinion also invokes the United States
  Supreme Court's  

  

  desegregation decision in Watson v. City of Memphis, 373 U.S. 526 (1963),
  suggesting that the  circumstances here are comparable, and demand a
  comparable judicial response.  The analogy is  flawed.  We do not confront
  in this case the evil that was institutionalized racism, an evil that was 
  widely recognized well before the Court's decision in Watson and its more
  famous predecessor,  Brown v. Board of Education, 347 U.S. 483 (1954). 
  Plaintiffs have not demonstrated that the  exclusion of same-sex couples
  from the definition of marriage was intended to discriminate against  women
  or lesbians and gay men, as racial segregation was designed to maintain the
  pernicious  doctrine of white supremacy.  See Loving, 388 U.S.  at 11
  (holding anti-miscegenation statutes  violated Equal Protection Clause as
  invidious effort to maintain white supremacy).  The concurring  and
  dissenting opinion also overlooks the fact that the Supreme Court's urgency
  in Watson was  impelled by the City's eight year delay in implementing its
  decision extending Brown to public  recreational facilities, and "the
  significant fact that the governing constitutional principles no longer 
  bear the imprint of newly enunciated doctrine."  See Watson, 373 U.S.  at
  529; Dawson v. Mayor  and City Council of Baltimore, 220 F.2d 386, aff'd,
  350 U.S. 877 (1955).  Unlike Watson, our  decision declares decidedly new
  doctrine.

       The concurring and dissenting opinion further claims that our mandate
  represents an  "abdicat[ion]" of the constitutional duty to decide, and an
  inexplicable failure to implement "the  most straightforward and effective
  remedy."  Post, at 3, 10.  Our colleague greatly underestimates  what we
  decide today and greatly overestimates the simplicity and effectiveness of
  her proposed  mandate.  First, our opinion provides greater recognition of
  -- and protection for -- same sex  relationships than has been recognized
  by any court of final jurisdiction in this 


  

  country with the  instructive exception of the Hawaii Supreme Court in
  Baehr, 825 P.2d 44.   See Hawaii Const.,  art. I, § 23 (state
  constitutional amendment overturned same-sex marriage decision in Baehr by 
  returning power to Legislature "to reserve marriage to opposite-sex
  couples").  Second, the  dissent's suggestion that her mandate would avoid
  the "political caldron" (post, at 4) of public  debate is -- even allowing
  for the welcome lack of political sophistication of the judiciary -- 
  significantly insulated from reality.  See Hawaii Const., art. I, § 23; see
  also Alaska Const., art. I,  § 25 (state constitutional amendment reversed
  trial court decision in favor of same-sex marriage,  Brause v. Bureau of
  Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743 (Alaska Super. Ct. 
  Feb. 27, 1998), by providing that "a marriage may exist only between one
  man and one woman"). 
 
       The concurring and dissenting opinion confuses decisiveness with
  wisdom and judicial  authority with finality.  Our mandate is predicated
  upon a fundamental respect for the ultimate  source of constitutional
  authority, not a fear of decisiveness.  No court was ever more decisive
  than  the United States Supreme Court in Dred Scott, 60 U.S. (19 How.) 393
  (1857).  Nor more wrong.  Ironically it was a Vermonter, Stephen Douglas,
  who in defending the decision said -- as the  dissent in essence does here
  -- "I never heard before of an appeal being taken from the Supreme  Court." 
  See A. Bickel, The Morality of Consent 101 (1975).  But it was a profound
  understanding  of the law and the "unruliness of the human condition," id.
  at 11, that prompted Abraham Lincoln  to respond that the Court does not
  issue Holy Writ.  See id. at 101.  Our colleague may be correct  that a
  mandate intended to provide the Legislature with the opportunity to
  implement the holding of  this Court in an orderly and expeditious fashion
  will have precisely the opposite effect.  Yet it  cannot be doubted that
  judicial authority is not ultimate authority.  

  


It is certainly not the only  repository of wisdom.

     When a democracy is in moral flux, courts may not have the best or 
     the final answers.  Judicial answers may be wrong.  They may be 
     counterproductive even if they are right.  Courts do best by 
     proceeding in a way that is catalytic rather than preclusive and 
     that is closely attuned to the fact that courts are participants 
     in the system of democratic deliberation.

  C. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 6, 101
  (1996).  

       The implementation by the Vermont Legislature of a constitutional
  right expounded by this  Court pursuant to the Vermont Constitution for the
  common benefit and protection of the Vermont  community is not an
  abdication of judicial duty, it is the fulfillment of constitutional 
  responsibility.

                               III. Conclusion

       While many have noted the symbolic or spiritual significance of the
  marital relation, it is  plaintiffs' claim to the secular benefits and
  protections of a singularly human relationship that, in  our view,
  characterizes this case.  The State's interest in extending official
  recognition and legal  protection to the professed commitment of two
  individuals to a lasting relationship of mutual  affection is predicated on
  the belief that legal support of a couple's commitment provides stability 
  for the individuals, their family, and the broader community.  Although
  plaintiffs' interest in  seeking state recognition and protection of their
  mutual commitment may -- in view of divorce  statistics -- represent "the
  triumph of hope over experience,"(FN16) the essential aspect of their claim
  is  simply and fundamentally for inclusion in the family of
  State-sanctioned human relations.

  

       The past provides many instances where the law refused to see a human
  being when it  should have.  See, e.g., Dred Scott, 60 U.S.  at 407
  (concluding that African slaves and their  descendants had "no rights which
  the white man was bound to respect").  The future may provide  instances
  where the law will be asked to see a human when it should not.  See, e.g.,
  G. Smith,  Judicial Decisionmaking in the Age of Biotechnology, 13 Notre
  Dame J. Ethics & Pub. Policy 93,  114 (1999) (noting concerns that
  genetically engineering humans may threaten very nature of  human
  individuality and identity).  The challenge for future generations will be
  to define what is  most essentially human.  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.    

       The judgment of the superior court upholding the constitutionality of
  the Vermont marriage  statutes under Chapter I, Article 7 of the Vermont
  Constitution is reversed.  The effect of the  Court's decision is
  suspended, and jurisdiction is retained in this Court, to permit the
  Legislature to  consider and enact legislation consistent with the
  constitutional mandate described herein.


	FOR THE COURT:


	_______________________________________
	Chief Justice

-----------------------------------------------------------------------------
                                  Footnotes


FN1.  In their motions, each of the parties presented the trial court
  with extensive extra-pleading  facts and materials, including legislative
  history, scientific data, and sociological and psychological  studies.  See
  V.R.C.P. 12(b) & (c) (motion treated as one for summary judgment where
  "matters  outside the pleadings are presented to and not excluded by the
  court"); Fitzgerald v. Congleton,  155 Vt. 283, 293-94, 583 A. 2 595, 601
  (1990) (court effectively converted motion to dismiss into  motion for
  summary judgment where it considered matters outside pleadings and parties
  had  reasonable opportunity to submit extra-pleading materials).  The
  parties have continued to rely on  these materials on appeal. In addition,
  the Court has received numerous amicus curiae briefs,  representing a broad
  array of interests, supportive of each of the parties.

FN2.  Although plaintiffs raise a number of additional arguments based
  on both the United States and the Vermont Constitutions, our resolution of
  the Common Benefits claim obviates the necessity to address them.

FN3.  Conventional equal protection analysis under the Fourteenth
  Amendment employs three  "tiers" of judicial review based upon the nature
  of the right or the class affected.  See generally,  Cleburne v. Cleburne
  Living Center, Inc., 473 U.S. 432, 440-41 (1985); 3 R. Rotunda & J.  Nowak,
  Treatise on Constitutional Law § 18.3, at 216-10 (3d ed. 1999).  The first
  step in that  analysis is to categorize the class affected as more or less
  similar to race based upon certain  judicially-developed criteria.  See
  Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272  (1979); see
  generally, J. Baer, Equality Under the Constitution: Reclaiming the
  Fourteenth  Amendment 253-64 (1983); C. Sunstein, The Anticaste Principle,
  92 Mich. L. Rev. 2410, 2441-44  (1994).  If a legislative classification
  implicates a "suspect" class, generally defined in terms of  historical
  discrimination, political powerlessness, or immutable characteristics, the
  law is subject to  strict scrutiny, and the state must demonstrate that it
  furthers a compelling governmental interest  that could not be accomplished
  by less restrictive means.  In addition to race (the original suspect 
  class), alienage and national origin have also been recognized as suspect. 
  See Cleburne, 473 U.S.  at 440.  The United States Supreme Court has
  created a "middle-tier" level of review for legislative  classifications
  based on gender or illegitimacy; laws affecting these groups must be
  substantially  related to a sufficiently important governmental interest to
  withstand constitutional scrutiny.  See id.  The balance of legislative
  enactments, including nearly all economic and commercial legislation,  are
  presumptively constitutional and will be upheld if rationally related to
  any conceivable,  legitimate governmental interest. See Minnesota v. Clover
  Leaf Creamery Co., 449 U.S. 456, 466  (1981); see also Cleburne, 473 U.S.  at 440.  Thus, as one commentator has explained, rationality  review may be
  "used to uphold laws justified even by hypothesized or ad hoc state
  interests."  J.  Wexler, Defending the Middle Way: Intermediate Scrutiny as
  Judicial Minimalism, 66 Geo. Wash.  L. Rev. 298, 300 (1998).

FN4.  In this respect, Ludlow was consistent with an older line of
  Vermont decisions which, albeit  in the Fourteenth Amendment context,
  routinely subjected laws involving economic classifications  to a
  relatively straightforward reasonableness evaluation, explicitly balancing
  the rights of the  affected class against the State's proffered rationale. 
  See, e.g., State v. Hoyt, 71 Vt. 59, 64, 42 A. 973, 975 (1899)
  (peddler-licensing classifications must be "based on some reasonable
  ground, some  difference that bears a just and proper relation to the
  attempted classification, and is not a mere  arbitrary selection"); State
  v. Cadigan, 73 Vt. 245, 252, 50 A. 1079, 1081 (1901) (State must  establish
  "reasonable basis" to support law distinguishing between business
  partnerships organized  in Vermont and those formed in other states); State
  v. Haskell, 84 Vt. 429, 437, 75 A. 852, 856  (1911) (mill regulation must
  be "based upon some difference having a reasonable and just relation  to
  the object sought").  These opinions are notable for their detailed
  examination of the context and  purposes of the challenged legislation, the
  impact on the affected class, and the logical fit between  the statutory
  classification and the public ends to be achieved.  

FN5.  Cass Sunstein, among others, has documented the United States
  Supreme Court's  unacknowledged departures from the deferential
  rational-basis standard without defining a new kind  of scrutiny. See C.
  Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 6, 59-61 
  (1996).  These cases include Romer v. Evans, 517 U.S. 620, 635 (1996)
  (holding Colorado statute  that banned state or local laws forbidding
  sexual-orientation discrimination was not rationally  related to legitimate
  governmental objective), City of Cleburne v. Cleburne Living Ctr., Inc.,
  473 U.S. 432, 450 (1985) (applying rational basis review, Court
  invalidated zoning discrimination  against mentally retarded as based on
  "irrational prejudice"), and United States Dept. of Agriculture  v. Moreno,
  413 U.S. 528, 534 (1973) (invalidating regulation that excluded non-family
  members  of household from food stamp program).  In each of these
  decisions, the Court employed a highly  contextual, fact-based analysis
  balancing private rights and public interests even while ostensibly 
  applying minimal rational basis review.  Conversely, in Adarand
  Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995), the high court
  itself questioned the notion that strict scrutiny was inevitably  "fatal in
  fact."  See G. Gunther, The Supreme Court, 1971 Term -- Foreword: In Search
  of  Evolving Doctrine on a Changing Court: A Model for a New Equal
  Protection, 86 Harv. L. Rev.  1, 8 (1972) (observing that strict scrutiny
  is generally "`strict' in theory and fatal in fact").  Viewed  together,
  these cases have prompted one commentator to suggest that "[t]he hard edges
  of the  tripartite division have thus softened," and that the Court has
  moved "toward general balancing of  relevant interests."  Sunstein, supra,
  at 77.

FN6.  The current version differs from the original only in that the
  gender-neutral terms "person"  and "persons" have been substituted for
  "man" and "men."  See Vt. Const., Ch. II § 76.  This  revision was not
  intended to "alter the sense, meaning or effect of the" provision.  Id.

FN7.  There is little doubt as to the obligatory nature of the Common
  Benefits Clause, which  provides that "government is, or ought to be,
  instituted for the common benefit, protection, and  security  .  .  .  ." 
  (Emphasis added).  Indeed the State does not argue that it is merely
  hortatory or  aspirational in effect, an argument that would not be
  persuasive in any event.  See Brigham, 166  Vt. at 261-62, 692 A.2d  at
  393-94 (1997) (framers "drew no distinction between `ought' and  `shall' in
  defining rights and duties").

FN8.  The use of the word "family" in the Pennsylvania Common Benefits
  Clause reflects  Pennsylvania's history, where elite "proprietors"
  including the Penns and other established families,  had long dominated
  colonial politics, religion, and economic interests.  The revolt against
  Great  Britain presented an opportunity for western Pennsylvania farmers,
  urban gentry, and dissenting  Presbyterians nursing "deep seated and
  long-felt grievances" to end Eastern domination of the  colony, and
  establish a more democratic form of government.  See Selsam, supra, at 1,
  255-56.

FN9.  This Court has noted that interpretations of similar
  constitutional provisions from other states  may be instructive in
  understanding our own.  See Benning, 161 Vt. at 476, 641 A.2d  at 759. 
  "Common Benefits" decisions from other states, however, are scarce. 
  Pennsylvania eliminated the  Common Benefits Clause when it replaced its
  constitution in 1790, and Virginia courts have not  explored in any depth
  the meaning of its clause.  The New Hampshire Constitution of 1783 also 
  included a common benefits section substantially similar to Vermont's.  See
  N.H. Const., Pt. 1,  art. 10.  Although New Hampshire courts have not
  developed an independent Common Benefits  jurisprudence, several early New
  Hampshire decisions noted the provision's significance.  See State  v.
  Pennoyer, 18 A.2d 878, 881 (1889) (relying on Common Benefits Clause to
  strike down  physician-licensing statute that exempted physicians who had
  resided in one place for four years);  Rosenblum v. Griffin, 197 A. 701,
  706 (1938) (noting that under Common Benefits Clause,  "[e]quality of
  benefit is no less required than equality of burden.  Otherwise equal
  protection is  denied").  Massachusetts included a variation on Vermont's
  Common Benefits Clause in its  Constitution of 1780, as well as a separate
  "emoluments" provision.  See Mass. Const., Pt. 1, arts.  VI & VII (adopted
  1780).  Massachusetts has not relied on the Common Benefits provision as a 
  separate source of equal protections rights.  See Town of Brookline v.
  Secretary of Com., 631 N.E.2d 968, 978 n.19 (Mass. 1994).

       In the nineteenth century, a number of additional states adopted
  variations on the Common  Benefits Clause.  See, e.g., Conn. Const. of
  1818, art. 1, § 2 ("[A]ll political power is inherent in  the people, and
  all free governments are founded on their authority, and instituted for
  their  benefit."); Ohio Const. of 1851, art. 1, § 2 ("All political power
  is inherent in the people.   Government is instituted for their equal
  protection and benefit."); W. Va. Const. Const., art. III, §  3 (adopted
  1872) ("Government is instituted for the common benefit, protection and
  security of the  people, nation or community.").  Even assuming that
  provisions enacted in the nineteenth century  have some bearing on the
  meaning of a Revolutionary-era document, these sister-state constitutions 
  provide little guidance.  Ohio has held that the state clause is the
  "functional equivalent" of the  Equal Protection Clause with similar
  standards. See American Ass'n of Univ. Professors v. Central  State Univ.,
  699 N.E.2d 463, 467 (Ohio 1998).  The West Virginia Supreme Court, in
  contrast,  has relied on the Common Benefits Clause to hold that the State
  constitution provides greater  individual protection than the United States
  Constitution. See United Mine Workers of Am. Inter.  Union v. Parsons, 305 S.E.2d 343, 353-54 (W. Va. 1983).  Apart from noting the absence of an 
  equivalent provision in the federal constitution, however, the West
  Virginia court has not engaged  in any extensive textual or historical
  analysis.  

       A number of states during the Revolutionary and early National periods
  also adopted  separate provisions, apparently modeled on the Pennsylvania
  and Virginia clauses, declaring that no  men, or set of men, are entitled
  to exclusive or separate emoluments or privileges from the  community, but
  in consideration of public services.  See, e.g., N.C. Const. of 1776, Decl.
  of  Rights, § 3; Mass. Const., Pt. 1, art. VI; Conn. Const. of 1818, art.
  I, § 1; Miss. Const. of 1832,  art. I, § 1; Ky. Const. of 1792, art. XII, §
  1.  These "emoluments and privileges" clauses have  been extensively cited
  and applied, often in the context of taxpayer suits challenging public 
  expenditures as unconstitutional "gifts" of public funds without
  consideration of public service, or  suits challenging legislative acts
  granting special credits, payments, or exemptions to a specific  class. 
  see, e.g., Commissioner of Pub. Works v. City of Middletown. 731 A.2d 749.
  757 (Conn.  1999) (challenge to tax exemption); Driscoll v. City of New
  Haven, 52 A. 618, 622 (Conn. 1902)  (taxpayer suit to enjoin municipal
  grant of land to private company); Kentucky Union R.R. Co. v.  Bourbon
  County, 2. S.W. 687, 690 (Ky. 1887) (taxpayer suit to enjoin subscription
  of bonds for  railroad purposes); Brumley v. Baxter, 36 S.E.2d 281, 286
  (N.C. 1945) (taxpayer suit to enjoin  municipal grant of real property for
  use by military veterans); see also Gross v. Auditor of  Accounts, 109 Vt.
  156, 159, 194 A. 465, 467 (1937) (Article 7 challenge to payment to
  sheriff's  widow as "emolument" without consideration of public service). 
  These cases generally turned on  whether the challenged action promoted a
  public purpose or was made without some consideration  of public service. 
  They represent, in effect, the reverse of the Common Benefits Clause, 
  prohibiting the grant of special privileges to a select class of persons
  over and above those granted  to the general community, as the Common
  Benefits Clause requires the equal enjoyment of general  benefits and
  protections by the whole community.

FN10.  The concurring opinion would tie its analysis to the presumably
  "objective" test of suspect  class.  But suspect class analysis has never
  provided a stable mooring for constitutional application  of Vermont's
  Common Benefits Clause.  Although the concurrence identifies precedents of
  this  Court holding that a more searching scrutiny is required when a
  statutory scheme involves suspect  classes, we have never established the
  criteria for determining what constitutes a suspect class under  the
  Vermont Constitution nor have we ever identified a suspect class under
  Article 7.  Moreover,  the concurrence applies strict scrutiny predicated
  on a finding that lesbians and gay men are a  suspect class, although the
  overwhelming majority of decisions have rejected such claims. See Ben-
  Shalom v. Marsh, 881 F.2d 454, 464-66 (7th Cir. 1989), cert denied, 494 U.S. 1004 (1990);  Equality Found'n of Greater Cincinnati, Inc. v. City of
  Cincinnati, 128 F.3d 289, 292-93 (6th Cir.  1997); Thomasson v. Perry, 80 F.3d 915, 927 (4th Cir.), cert. denied, 519 U.S. 948 (1996);  Richenberg v.
  Perry, 97 F.3d 256, 260-61 (8th Cir. 1996), cert. denied, 522 U.S. 807)
  (1997);  High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571-72 (9th Cir. 1990);  Woodward v. United States, 871 F.2d 1068,
  1076 (Fed. Cir. 1989), cert. denied, 494 U.S. 1002  (1990); Padula v.
  Webster, 822 F.2d 97, 103 (D.C. Cir. 1987); Baker v. Wade, 769 F.2d 289, 
  292 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1035 (1986); National
  Gay Task Force v.  Board of Educ., 729 F.2d 1270, 1273 (10th Cir. 1984),
  aff'd 470 U.S. 903 (1985); Opinion of the  Justices, 530 A.2d 21, 24 (N.H.
  1987).

       The Court -- no less than the concurrence -- seeks a rationale
  faithful to our Constitution  and careful in the exercise of this Court's
  limited powers.  The concurrence suggests that the  Oregon Supreme Court's
  decision in Hewitt v. State Accident Ins. Fund Corp., 653 P.2d 970, 977-78
  (Or. 1982) should be relied upon to supply the missing Vermont
  jurisprudence of suspect class  criteria.  Yet, the Oregon Court of Appeals
  found it necessary to abandon the immutable personal-characteristic
  criterion of Hewitt in order to find that homosexuals were a suspect class
  entitled to  heightened scrutiny.  See Tanner v. Oregon Health Sciences
  Univ., 971 P.2d 435, 446 (Or. Ct.  App. 1998).  The "adverse stereotyping"
  analysis used in its place, see id., may provide one  intermediate
  appellate court's answer to the question of whether homosexuals are a
  suspect class,  but it is far from an "exacting standard" by which to
  measure the prudence of a court's exercise of  its powers.  It is difficult
  to imagine a legal framework that could provide less predictability in the 
  outcome of future cases than one which gives a court free reign to decide
  which groups have been  the subject of "adverse social or political
  stereotyping."  Id.  The artificiality of suspect-class  labeling should be
  avoided where, as here, the plaintiffs are afforded the common benefits and 
  protections of Article 7, not because they are part of a "suspect class,"
  but because they are part of  the Vermont community.

FN11.  The concurring and concurring and dissenting opinions are
  mistaken in suggesting that this  standard places identical burdens upon
  the State regardless of the nature of the rights affected.  As  explained
  above, the significance of the benefits and protections at issue may well
  affect the  justifications required of the State to support a statutory
  classification.  This is plainly demonstrated  in the discussion of
  marriage benefits and protections which follows.  Nor is there any merit to
  the  assertion that this standard invites a more "activist" review of
  economic and social welfare  legislation.  See post, at 15 (Dooley, J.,
  concurring).  Characterizing a case as affecting  "economic" interests,
  "civil rights," "fundamental" rights, or "suspect classes" -- as our 
  colleagues apparently prefer -- is no less an exercise in judgment. 
  Indeed, it may disguise the  court's value judgments with a label, rather
  than explain its reasoning in terms that the public and  the litigants are
  entitled to understand. "It is a comparison of the relative strengths of
  opposing  claims that informs the judicial task, not a deduction from some
  first premise."  Glucksberg, 521 U.S.  at 764 (Souter, J., concurring). 
  That is a task we trust will continue to be undertaken in a  legal climate
  that recognizes that "constitutional review, not judicial lawmaking, is a
  court's  business here."  Id. at 768.

FN12.  Justice Harlan has described the process of constitutional
  interpretation as follows: 

If the supplying of content to this Constitutional concept has of necessity 
been a rational process, it certainly has not been one where judges have felt 
free to roam where unguided speculation might take them.  The balance of 
which I speak is the balance struck by this country, having regard to what 
history teaches are the traditions from which it developed as well as the 
traditions from which it broke.  That tradition is a living thing.  A decision 
of this Court which radically departs from it could not long survive, while a 
decision which builds on what has survived is likely to be sound.  No 
formula could serve as a substitute, in this area, for judgment and restraint.

Poe, 367 U.S.  at 542 (Harlan, J. dissenting).     

FN13.  Relying largely on federal precedents, our colleague in her
  concurring and dissenting opinion  suggests that the statutory exclusion of
  same-sex couples from the benefits and protections of  marriage should be
  subject to heightened scrutiny as a "suspect" or "quasi-suspect"
  classification  based on sex.  All of the seminal sex-discrimination
  decisions, however, have invalidated statutes  that single-out men or women
  as a discrete class for unequal treatment.  See, e.g., United States v. 
  Virginia, 518 U.S. 515, 555-56 (1996) (repudiating statute that precluded
  women from attending  Virginia Military Institute); Mississippi Univ. for
  Women v. Hogan, 458 U.S. 718, 731 (1982)  (invalidating admission policy
  that excluded males from attending state-supported nursing school);  Craig
  v. Boren, 429 U.S. 190, 204 (1976) (invalidating statute that allowed women
  to purchase  non-intoxicating beer at younger age than men); Frontiero v.
  Richardson, 411 U.S. 677, 690  (1973) (striking statute that imposed more
  onerous requirements upon female members of armed  services to claim
  spouses as dependents).
	
       Although this Court has not addressed the issue, see State v. George,
  157 Vt. 580, 588, 602 A.2d 953, 957 (1991), we do not doubt that a statute
  that discriminated on the basis of sex would  bear a heavy burden under the
  Article 7 analysis set forth above.  The difficulty here is that the 
  marriage laws are facially neutral; they do not single-out men or women as
  a class for disparate  treatment, but rather prohibit men and women equally
  from marrying a person of the same sex.  As  we observed in George, 157 Vt.
  at 585, 602 A.2d  at 956, "[i]n order to trigger equal protection  analysis
  at all  .  .  .  a defendant must show that he was treated differently as a
  member of one  class from treatment of members of another class similarly
  situated." (Emphasis added).  Here,  there is no discrete class subject to
  differential treatment solely on the basis of sex; each sex is  equally
  prohibited from precisely the same conduct.
  
       Indeed, most appellate courts that have addressed the issue have
  rejected the claim that  defining marriage as the union of one man and one
  woman discriminates on the basis of sex.  See,  e.g. Baker v. Nelson, 191 N.W.2d 185, 186-87 (Minn. 1971); Singer v. Hara, 522 P.2d 1187,  1191-92
  (Wash. Ct. App. 1974); see also Phillips v. Wisconsin Personnel Comm'n, 482 N.W.2d 121, 129 (Wis. Ct. App. 1992) (holding that health insurance
  regulation limiting state employee's  dependent coverage to spouse did not
  constitute sex discrimination because coverage was  "unavailable to
  unmarried companions of both male and female employees"); State v. Walsh,
  713 S.W.2d 508, 510 (Mo. 1986) (rejecting claim that sodomy statute
  imposed sex-based classification  because it "applie[d] equally to men and
  women [in] prohibit[ing] both classes from engaging in  sexual activity
  with members of their own sex").  But see Baehr v. Lewin, 852 P.2d 44, 64
  (Haw.  1993) (plurality opinion holding that state's marriage laws
  discriminated on basis of sex).

       Although the concurring and dissenting opinion invokes the United
  States Supreme Court  decision in Loving v. Virginia, 388 U.S. 1 (1967),
  the reliance is misplaced.  There the high court  had little difficulty in
  looking behind the superficial neutrality of Virginia's anti-miscegenation 
  statute to hold that its real purpose was to maintain the pernicious
  doctrine of white supremacy. Id.  at 11.  Our colleague argues, by analogy,
  that the effect, if not the purpose, of the exclusion of  same-sex partners
  from the marriage laws is to maintain certain male and female stereotypes
  to the  detriment of both.  To support the claim, she cites a number of
  antiquated statutes that denied  married women a variety of freedoms,
  including the right to enter into contracts and hold property. 
 
       The test to evaluate whether a facially gender-neutral statute
  discriminates on the basis of  sex is whether the law "can be traced to a
  discriminatory purpose."  Personnel Administrator v.  Feeney, 442 U.S. 256,
  272 (1979).  The evidence does not demonstrate such a purpose.  It is one 
  thing to show that long-repealed marriage statutes subordinated women to
  men within the marital  relation.  It is quite another to demonstrate that
  the authors of the marriage laws excluded same-sex  couples because of
  incorrect and discriminatory assumptions about gender roles or anxiety
  about  gender-role confusion.  That evidence is not before us. 
  Accordingly, we are not persuaded that sex  discrimination offers a useful
  analytic framework for determining plaintiffs' rights under the  Common
  Benefits Clause.
  
FN14.  It would, for example, serve no useful purpose to remand this
  matter for hearings on  whether marriages of convenience (i.e., unions for
  the purpose of obtaining certain statutory  benefits) would result from
  providing same-sex couples with the statutory benefits and protections 
  accorded opposite-sex couples under marriage laws.  For the reasons we have
  stated in this opinion,  it is not a failure of proof that is fatal to the
  State's arguments, it is a failure of logic.   

FN15.  Contrary to the characterization in the concurring and
  dissenting opinion, we do not  "decline[] to provide plaintiffs with a
  marriage license" because of uncertainty and confusion that  change may
  bring.  Post, at 11.  Rather, it is to avoid the uncertainty that might
  result during the  period when the Legislature is considering potential
  constitutional remedies that we consider it  prudent to suspend the Court's
  judgment for a reasonable period.      

FN16.  J. Boswell, Life of Johnson (1791) (reprinted in Bartlett's
  Familiar Quotations 54 (15th ed.  1980). 
 

-----------------------------------------------------------------------------
                                 Concurring

 

       DOOLEY, J., concurring.  I concur in Part I of the majority opinion,
  the holding of Part  II, and the mandate.  I do not, however, concur in the
  reasoning of Part II.  I recognize that to  most observers the significance
  of this decision lies in its result and remedy.  In the cases that come 
  before us in the future, however, the significance of this case will lie in
  its rationale - that is, how  we interpret and apply Chapter I, Article 7
  of the Vermont Constitution.  Moreover, in this, the  most closely-watched
  opinion in this Court's history, its acceptability will be based on whether
  its  reasoning and result are clearly commanded by the Constitution and our
  precedents, and whether it  is a careful and necessary exercise of the
  Court's limited powers.  I do not believe that the  majority's rationale
  meets this exacting standard, and I fear how it may be applied - or ignored
  - in  the future.

       This is a concurrence and not a dissent.  I agree with the majority
  that the consequence of  limiting marriage to a man and woman is the
  exclusion of these plaintiffs, and many persons  similarly situated, from
  numerous rights, benefits, and duties that government and society provide 
  to - and impose on - married persons.  However we might have described
  marriage in relation to  the very limited government that was created by
  our Constitution, the complexity of the current  system of
  government-created benefits and burdens has made civil marriage a
  modern-day  emolument, a government recognized and supported special status
  for which these plaintiffs are not  eligible. 

       This is a civil rights case, very different from a claim of
  discrimination with respect to, for  example, a peddler's fee, see State v.
  Hoyt, 71 Vt. 59, 42 A. 973 (1899), operation of  partnerships, see State v.
  Cadigan, 73 Vt. 245, 50 A. 1079 (1901), or regulation of river pollution, 
  see State v. Haskell, 84 Vt. 429, 75 A. 852 (1911).  It is also very
  different from a claim that  exemptions to a Sunday closing law
  unconstitutionally discriminated against large 



  stores, the issue  in State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 448 A.2d 791 (1982).  The United States  Supreme Court has recognized that
  discrimination based on race, alienage, national origin, or sex  requires
  greater justification than economic discrimination, such as discrimination
  in the fees  charged certain peddlers based on the type of goods they are
  selling.  See Cleburne v. Cleburne  Living Ctr., 473 U.S. 432, 440-41
  (1985) (discussing the standards for scrutinizing various 
  classifications).  Compare United States v. Virginia, 515 U.S. 518, 532
  (1996) (sex), and Loving  v. Virginia, 388 U.S. 1, 11 (1967) (race), with
  Williamson v. Lee Optical, Inc., 348 U.S. 483,  486-88 (1955) (economic
  regulation).  Until this decision, we also recognized this distinction.  As 
  we stated in Brigham v. State, 166 Vt. 246, 265, 692 A.2d 384, 396 (1997):
  "Where a statutory  scheme affects fundamental constitutional rights or
  involves suspect classifications, both federal and  state decisions have
  recognized that proper equal protection analysis necessitates a more
  searching  scrutiny."

       The marriage statutes do not facially discriminate on the basis of
  sexual orientation.  There  is, however, no doubt that the requirement that
  civil marriage be a union of one man and one  woman has the effect of
  discriminating against lesbian and gay couples, like the plaintiffs in this 
  case, who are unable to marry the life partners of their choice.  The
  majority proclaims that most  decisions have concluded that lesbians and
  gay men are not a suspect classification, inferring that  any conclusion to
  the contrary is wrong.  See ante, at 24 n.10.  On this point, however, I
  believe  the central analysis of Ludlow is critical: 

   [A] state court reviewing state legislation is in a very different 
   posture from the United States Supreme Court when it undertakes 
   the parallel task. Rather than disposing of a case on the premise that 
   its impact will presumably affect more than fifty varying 
   jurisdictions, a state court reaches its result in the legal climate of the 
   single jurisdiction with which it is associated, if federal proscriptions 
   are not transgressed.

 

  141 Vt. at 268, 448 A.2d  at 795.  Although our precedents mandate use of at
  least a close cousin of  the federal equal protection test, we must, as we
  said in Ludlow, apply that test in our own "legal  climate."

       Vermont's legal climate differs considerably from that in other
  jurisdictions where courts  have held that lesbians and gay men are not a
  suspect classification.  Indeed, the federal analysis of  the rights of
  lesbians and gay men almost always starts with Bowers v. Hardwick, 478 U.S. 186  (1986), a decision that reflects a legal climate quite hostile to
  those rights.  Bowers upheld a  Georgia conviction for sodomy based on a
  sex act committed by two males in the bedroom of  defendant's home.  See
  id. at 196.  It held that, for due process purposes, individuals do not
  have  "a fundamental right to engage in homosexual sodomy."  Id. at 191.  

       Federal courts considering equal-protection challenges have relied on
  Bowers to conclude  that lesbians and gay men are not a suspect
  classification.  They rationalize that if homosexual  conduct can
  constitutionally be criminalized, homosexuals cannot constitute a suspect
  class.  See,  e.g., Equality Found. of Greater Cincinnati, Inc. v. City of
  Cincinnati, 128 F.3d 289, 292-93 (6th  Cir. 1997) (holding that under
  Bowers and its progeny, homosexuals do not constitute suspect class 
  because conduct which defined them as homosexuals could constitutionally be
  proscribed); Ben-Shalom v. Marsh, 881 F.2d 454, 464-65 (7th Cir. 1989)
  (citing Bowers and holding that because  homosexual conduct may
  constitutionally be criminalized, homosexuals do not constitute a suspect 
  class); High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 571 (9th Cir.  1990) (same);Woodward v. United States, 871 F.2d 1068,
  1074-76 (Fed. Cir. 1989) (same);  Padula v. Webster, 822 F.2d 97, 102-03
  (D.C. Cir. 1987) (same); see also Opinion of the Justices,  530 A.2d 21, 24
  (N.H. 1987) (stating that for federal equal-protection analysis homosexuals
  do not  constitute a suspect class, nor is there a fundamental 

  

  right to engage in sodomy according to  Bowers).  

       The majority errs in relying on these cases because the Bowers
  rationale applied in all of  them is not applicable in Vermont today. 
  Although Vermont, like all states, once criminalized  sodomy, and had a
  "fellation" law, see State v. LaForrest, 71 Vt. 311, 312, 45 A.2d 225, 226 
  (1899) (holding sodomy a crime by virtue of 1 V.S.A. § 271 -- formerly V.S.
  898 -- and adopting  common law so far as applicable in Vermont); 13 V.S.A.
  §2603 (repealed 1977, No. 51, §2), it  repealed this law in 1977 and does
  not now prohibit, or otherwise restrict, homosexual conduct  between
  adults, except on the same terms that it restricts heterosexual conduct. 
  See, e.g., 13  V.S.A. § 3252 (sexual assault); 13 V.S.A. § 3253 (aggravated
  assault); 13 V.S.A. § 2601 (lewd  and lascivious conduct).  

       Since 1992, it has generally been the policy of Vermont to prohibit
  discrimination based on  sexual orientation.  See 1991, No. 135 (Adj.
  Sess.).  This includes discrimination based on "male  or female
  homosexuality."  1 V.S.A. § 143.  Thus, I believe our "legal climate" is
  vastly different  from that in Bowers, where, after considering that
  twenty-four states had criminalized sodomy  between consenting adults, the
  United States Supreme Court concluded that there was no  fundamental right,
  deeply rooted in the Nation's history, to engage in such conduct.  My point
  here  is simply that the rationale in federal decisions for withholding a
  more searching scrutiny does not  apply in Vermont.  The majority errs in
  relying on these decisions and the state court decisions  applying the same
  federal analysis.

       Chapter I, Article 7 of the Vermont Constitution actually contains
  three clauses, the most  important of which is the second, which contains
  the prohibition on governmental actions "for the  particular emolument or
  advantage of any single person, family, or set of persons, who are a part 
  only of that community."  This anti-privilege language, and variations on
  it, is contained 

 

  in the vast  majority of pre-civil war state constitutions.  See, e.g.,
  Conn. Const. of 1818, art. I, §1; Ky.  Const. of 1792, art. XII, § 1; Mass.
  Const., art. VI (adopted in 1780); N.H. Const., art. X  (adopted in 1784);
  N.C. Const. of 1776, art. III; Ohio Const. of 1851, art. I, § 2; Va. Const.
  of  1776, Bill of Rights, § 4; Tx. Const. of 1845, art. I, § 2.  At least
  in this century, the jurisprudence  in Vermont is similar to that in most
  states.  See, e.g., Town of Emerald Isle v. State, 360 S.E.2d 756, 764
  (N.C. 1987) (classification is not exclusive emolument if intended to
  promote general  welfare and reasonable basis exists to conclude it serves
  public interest); Primes v. Tyler, 331 N.E.2d 723, 728-29 (Ohio 1975)
  (statute violates constitution because no governmental interest  justifies
  grant of special privilege and immunity); Rosenblum v. Griffin, 197 A. 701,
  706 (N.H.  1938) (classification is constitutional under New Hampshire or
  federal law if based on some  reasonable ground); City of Corbin v.
  Louisville & Nashville R.R. Co., 26 S.W.2d 539, 540 (Ky.  1930) (purpose of
  emoluments and privileges clause is to place all similarly situated
  citizens on  plane of equality under law).  

       Oregon, like Vermont, has developed an independent state
  constitutional jurisprudence.   Article I, Section 20 of the Oregon
  Constitution, adopted in 1859, provides that no law shall  "grant[] to any
  citizen or class of citizens privileges, or immunities, which, upon the
  same terms,  shall not equally belong to all citizens."  This provision is
  similar in purpose and effect to our  Common Benefits Clause.  See D.
  Schuman, The Right to "Equal Privileges and Immunities": A  State Version
  of "Equal Protection," 13 Vt. L. Rev. 221, 222-25 (1988).  The Oregon
  Supreme  Court has described that provision precisely how we today have
  described Chapter I, Article 7:  "Antedating the Civil War and the equal
  protection clause of the fourteenth amendment, its  language reflects early
  egalitarian objections to favoritism and special privileges for a few
  rather  than the concern of the Reconstruction Congress about
  discrimination against disfavored individuals  or groups."  State v. Clark,
  630 P.2d 810, 814 (Or. 1981).  Just as this Court has acknowledged in 
  developing its Article 7 jurisprudence, the Oregon court has recognized
  that a privilege for a person  or group of persons means discrimination
  against 

  



       others.  See id. at 814 (Article I, Section 20 of  Oregon Constitution
  protects against adverse discrimination as well as against favoritism). 
  Thus,  while developing an independent state constitutional jurisprudence,
  the Oregon Supreme Court has  looked to the decisions of United States
  Supreme Court, but has adopted the federal analysis only  where the court
  finds it persuasive.  See State v. Kennedy, 666 P.2d 1316, 1321 (Or. 1983). 
  See,  e.g., Hewitt v. State Accident Ins. Fund Corp., 653 P.2d 970, 976
  (Or. 1982) (declining to adopt  federal standard of intermediate scrutiny
  for sex-based classifications).

       The Oregon Supreme Court, like this Court, has adopted the federal,
  tiered framework for  analyzing equal-protection type constitutional
  challenges.  See Hewitt, 653 P.2d  at 976 (following  United States Supreme
  Court analysis that asks whether classification is made on basis of suspect 
  classification, and if so, whether such classification is subject to strict
  scrutiny).  Moreover, it has  held, as we have held, that its state
  constitution "prohibits disparate treatment of groups or  individuals by
  virtue of 'invidious' social categories" and that discrimination against a
  suspect class  is subject to strict scrutiny.  Id.; see MacCallum v.
  Seymour's Adm'r, 165 Vt. 452, 460, 686 A.2d 935, 939 (1996) (Article 7
  protects against invidious discrimination).  I point out the similarities 
  between our Article 7 jurisprudence and Oregon's Section 20 jurisprudence
  because this Court has  not established the criteria for identifying
  suspect classifications, while the Oregon courts have.   Because of the
  historical similarity, I find it useful to look to Oregon case law, and the
  United  States Supreme Court decisions upon which it relies, in considering
  whether lesbians and gay men  are a suspect classification under Article 

  

  7.

       In Hewitt, the Oregon Supreme Court determined that sex-based
  classifications are suspect  because (1) they focus on an immutable
  personal characteristic and thus "can be suspected of  reflecting
  `invidious' social or political premises, that is to say, prejudice or
  stereotyped  prejudgments," and (2) "[t]he purposeful historical, legal,
  economic and political unequal treatment  of women is well known."  653 P.2d  at 977.  Accordingly, the court held that sex-based  classifications
  are inherently suspect, like the United States Supreme Court found
  classifications  based on race, alienage, and nationality.  See id. at
  977-78 (citing Loving v. Virginia, 388 U.S. 1,  11 (1967) (race); Graham v.
  Richardson, 403 U.S. 365, 372 (1971) (alienage); Oyama v.  California, 332 U.S. 633, 646 (1948) (nationality)).  

       Although the Oregon Supreme Court has not addressed whether lesbians
  and gay men are a  suspect classification, the Oregon Court of Appeals has
  recently done so.  See Tanner v. Oregon  Health Sciences Univ., 971 P.2d 435 (Or. Ct. App. 1998).  In Tanner, the court held that Article  I,
  Section 20 of the Oregon Constitution requires the Oregon Health Sciences
  University to extend  health and life insurance benefits to the unmarried
  domestic partners of its homosexual employees.   See id. at 448.  The
  Tanner court examined the Hewitt two-part test for defining suspect classes
  and  determined that "immutability -- in the sense of inability to alter or
  change -- is not necessary"  because alienage and religious affiliation --
  which may be changed -- have been held to be suspect  classifications. 
  Thus, it held that defining a suspect class depends not on the immutability
  of a  class-defining characteristic, but upon (1) whether the
  characteristic has historically been regarded  as defining a distinct
  socially-recognized group, and if so (2) whether that group has been the 
  subject of adverse social or political stereotyping.  See id. at 446. 
  Applying this test, the court  concluded that the class of homosexual
  couples is 

  

  clearly defined in terms of stereotyped personal  and social
  characteristics; is widely regarded as a distinct, socially recognized
  group; and  indisputably has "been and continues to be the subject of
  adverse social and political stereotyping  and prejudice."  Id. at 447. 
  Thus, the court found that the plaintiffs, three lesbian couples, were 
  members of a suspect class. 

       In this concurrence, I do not detail a suspect-classification
  analysis, but I can summarize my  opinion by saying that I agree with the
  general framework adopted by the Oregon courts in Hewitt  and Tanner. 
  These decisions concerning Article I, Section 20 of that state's
  constitution are entirely  consistent with the law we have developed under
  Chapter I, Article 7 of the Vermont Constitution,  at least prior to this
  decision.  I find Hewitt and Tanner far more persuasive than the majority's 
  decision, which backtracks from the established legal framework under
  Article 7 and fails to  provide any guidelines whatsoever for the
  Legislature, the trial courts, or Vermonters in general to  predict the
  outcome of future cases.

       I agree with the majority that the State cannot justify the denial of
  legal benefits and  responsibilities of civil marriage to gay and lesbian
  couples.  And I agree that the appropriate  remedy is either to require the
  State to extend the option of receiving these benefits and associated 
  responsibilities to these couples, or to require that it offer the
  opportunity for civil marriage on  equal terms.  I will briefly explain my
  disagreement with the majority's rationale for reaching the  same result.

       The majority's analysis under Chapter I, Article 7 proceeds in three
  steps: (1) there is one  equality standard imposed by Article 7, and it
  applies to claims of civil rights discrimination and  economic
  discrimination alike; (2) the equality standard is higher, that is, more
  active, than the  standard imposed by the Equal Protection Clause of the
  Fourteenth Amendment for analyzing  claims of economic discrimination; and
  (3) under the new standard, the denial of the benefits 

  


  of  marriage to lesbians and gay men violates Chapter I, Article 7.  In the
  first two steps, the majority  makes statements entirely contrary to our
  existing Article 7 jurisprudence.  As to the third step, I  find no
  standard in the Court's decision - it is entirely a matter of "judgment."

       The first step in the Court's analysis requires overruling a long
  series of precedents holding  that where a statutory scheme affects
  fundamental constitutional rights or involves suspect  classifications,
  Article 7 requires "a more searching scrutiny."  Brigham, 166 Vt. at 265,
  692 A.2d   at 396.(FN1)   Among the decisions that have stated this standard
  are L'Esperance v. Town of Charlotte,  167 Vt. 162, 165, 704 A.2d 760, 762
  (1997); McCallum, 165 Vt. at 457, 686 A.2d at 936-37;  Benning v. State,
  161 Vt. 472, 486, 641 A.2d 757, 764 (1994); In re Sherman Hollow, Inc., 160 
  Vt. 627, 628, 641 A.2d 753, 755 (1993) (mem.); Oxx v. Department of Taxes,
  159 Vt. 371, 376,  618 A.2d 1321, 1324 (1992); Hodgeman v. Jard Co., 157
  Vt. 461, 464, 599 A.2d 1371, 1373  (1991); State v. George, 157 Vt. 580,
  588, 602 A.2d 953, 957 (1991); Town of Sandgate v.  Colehamer, 156 Vt. 77,
  88, 589 A.2d 1205, 1211 (1990); and Choquette v. Perrault, 153 Vt. 45, 
  51-52, 569 A.2d 455, 459 (1989).(FN2)   The majority barely acknowledges
  the multi-tiered standard  stated in those cases, and dismisses it as a
  "rigid" analysis.  See ante, at 23.  It is ironic that in a  civil rights
  case we overrule our precedent 

  

  requiring the State to meet a higher burden in civil rights  cases, but
  still conclude, under the lower standard, that the State has not met its
  burden.

       The effect of the majority decision is that the State now bears no
  higher burden to justify  discrimination against African-Americans or women
  than it does to justify discrimination against  large retail stores as in
  Ludlow.  I doubt that the framers of our Constitution, concerned with 
  preventing the equivalent of British royalty, would believe that the
  inevitable line-drawing that must  occur in economic regulation should be
  equated with the denial of civil and human rights.  I do not  believe that
  the new standard is required by, or even consistent with, the history on
  which the  majority bases it.

       The second step is also at variance with our Article 7 law, even as it
  seeks to rely upon it.   The majority holds that Article 7 requires a more
  active standard of constitutional review than the  Fourteenth Amendment, as
  interpreted by the United States Supreme Court, in the absence of a 
  fundamental right or suspect classification.  See ante, at 11-12.  This
  means that in the future this  Court is less likely to defer to the
  Legislature and more likely to find its acts unconstitutional than  would
  the United States Supreme Court.  Again, I find great irony in the fact
  that we are doing this  unnecessarily in a case where the main theme of the
  State and many amici is that we must defer to  the Legislature on the issue
  before us.

       I agree that Ludlow, Choquette, and MacCallum contain important
  holdings about how  equality challenges are addressed by a state court. 
  Ludlow holds that we must look at justifications  for distinctions that are
  realistic in view of Vermont's unique legal culture.  See Ludlow, 141 Vt.
  at  268, 448 A.2d  at 795.  Choquette and MacCallum hold that such
  justifications must be relevant to  contemporary circumstances and not be
  wholly archaic.  See Choquette, 153 Vt. at 53-54, 569 A.2d  at 460;
  MacCallum, 165 Vt. at 461, 686 A.2d  at 940.  

  

  None of these decisions demonstrate  that "Vermont decisions reflect a very
  different approach from current federal jurisprudence,"  which is how the
  majority characterizes them.  Ante, at 10.  Indeed, we have said over and
  over  that the test, where no fundamental right or suspect class is
  involved, "is the same under the Equal  Protection Clause of the Fourteenth
  Amendment to the United States Constitution" as under Article  7.  Lorrain
  v. Ryan, 160 Vt. 202, 212, 628 A.2d 543, 550 (1993); see Brigham, 166 Vt.
  at 265,  692 A.2d  at 395; L'Esperance, 167 Vt. at 165, 704 A.2d  at 762. 
  Although the majority seeks to  rely on isolated statements from Ludlow, in
  fact, we are by this decision creating a new, more  active standard of
  review in Article 7 challenges.(FN3)

 

       We have wisely, in the past, avoided the path the majority now
  chooses, a path worn and  abandoned in many other states.  When Justice
  Hayes decried the failure of litigants to raise state  constitutional
  issues, see State v. Jewett, 146 Vt. 221, 229, 500 A.2d 233, 238 (1985), he
  could  not have been referring to challenges under state anti-emolument and
  equality provisions.  In state  after state, throughout the nineteenth and
  early twentieth centuries, state supreme courts routinely  struck down
  economic and social welfare statutes under these provisions using an
  analysis similar to  that employed by the majority in this case.  See H.
  Gillman, The Constitution Besieged: The Rise  and Demise of Lochner Era
  Police Powers Jurisprudence 9 (1993).  For example, in Auditor of  Lucas
  County v. State, 78 N.E. 955, 957 (Ohio 1906), the Ohio Supreme Court
  struck down an  Ohio law that provided a stipend of $25 each quarter to
  adult blind persons because it was over-inclusive -- including rich and
  poor -- and under-inclusive -- including only some disabled persons.  See
  also Cincinnati v. Cook, 140 N.E. 655, 656 (Ohio 1923) (striking down
  ordinance that  allowed parking in front of train station only with consent
  of supervisor of station, in part because it  created "privilege or
  immunity" in those who were allowed to park); Low v. Rees Printing Co., 59 N.W. 362, 368 (Neb. 1894) (striking down eight-hour-day law because it
  exempted farm or  domestic labor); State v. Pennoyer, 18 A. 878, 881 (N.H.
  1889) (striking down statute requiring  licensing of all physicians, except
  those who resided in only one town between 1875 and 1879,  because it
  imposed unequal burden on 

  


  members of same class); Millett v. People, 7 N.E. 631, 636  (Ill. 1886)
  (striking down statute requiring mine operators who tied wages to amount of
  coal  extracted to keep scale at mine so coal could be weighed before
  managers had chance to separate  unusable material); In re Jacobs, 98 N.Y. 98, 112-14 (N.Y. 1885) (striking down act addressing  deplorable
  working conditions under which cigar makers labored in tenements by banning
  the  manufacturing of cigars in those dwellings); Ex parte Westerfield, 55 Cal. 550, 551 (Cal. Sup. Ct.  1880) (striking down law making it
  misdemeanor for bakers to force employees to work between  six o'clock
  Saturday evening and six o'clock Sunday evening).

       Most of these decisions reflect judicial attitudes prevalent in the
  era of Lochner v. New  York, 198 U.S. 45 (1905), when the United States
  Supreme Court was routinely striking down  economic and social welfare
  legislation.  As the United States Supreme Court modified its 
  jurisprudence to give primacy to the federal and state legislative role in
  economic and social welfare  legislation, state courts did likewise, often
  on the basis that Fourteenth Amendment jurisprudence  was equally
  applicable under state due process and equality provisions.  See Gillman,
  supra, at 62.  See, e.g.,Department of Mental Hygiene v. Kirchner, 400 P.2d 321, 322 (Cal. 1965) (Fourteenth  Amendment to federal constitution and
  Sections 11 and 21 of Article I of California Constitution  provide
  generally equivalent but independent protections in their respective
  jurisdictions); People v.  Willi, 179 N.Y.S. 542, 547 (Del. Cty. Ct. 1919)
  (methods of analysis under Fourteenth  Amendment and state constitution are
  identical); City of Chicago v. Rhine, 2 N.E.2d 905, 908 (Ill.  1936)
  (simultaneously analyzing federal and state equal protection claims); Ex
  Parte Caldwell, 118 N.W. 133, 134 (Neb. 1908) (upholding under state and
  federal constitutions statute prohibiting  common labor on Sunday).

       The Vermont Supreme Court never adopted an activist stance in
  reviewing economic and  

  

  social welfare legislation, and history shows we chose the right course. 
  We could have relied upon  the looser and more activist language that
  prevailed in the federal cases in the early twentieth  century -- the same
  language that the majority relies upon today, ante, at 12 n.4 -- to
  substitute our  judgment for the Legislature, but wisely we did not. 
  Unfortunately, we have now resurrected that  approach.  I can find no
  justification for the holding that Article 7 requires a more activist
  approach  than the Fourteenth Amendment for reviewing social welfare and
  economic legislation.  We were  right in Lorrain, Brigham, and L'Esperance
  on this point and should adhere to those precedents.

       Finally, concerning the third step of the majority's analysis, I
  question whether the  majority's new standard is ascertainable, is
  consistent with our limited role in constitutional review,  and contains
  appropriate judicial discretion.  As Justice Johnson explains in her
  dissent, see post, at  21 n.13, the strength of the federal approach is
  that it disciplines judicial discretion and promotes  predictability.  See
  C. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 78 
  (1996).  Indeed, the Oregon courts have followed the federal approach in
  this area to avoid a  balancing process "of pragmatic considerations about
  which reasonable people may differ over  time," Kennedy, 666 P.2d  at 1321,
  and "policy choices disguised as ad hoc evaluations based on  comparison of
  incommensurable," Schuman, supra, at 227.  The majority calls the federal 
  approach "rigid" at one point, ante, at 23, but then describes it, as
  applied in Tanner, as an  invitation to subjective judicial
  decision-making.   Ante, at 24 n.10.  The two criticisms are as 
  inconsistent as any criticisms could be.  I accept the former -- rigid --
  as accurate, at least in  comparison with the wide judicial discretion the
  majority claims here as an alternative.  The latter --  subjective judicial
  decision-making -- is, however, the least accurate criticism the majority
  could  level.

  

       Two points about the new standard are particularly troublesome for me. 
  The majority now  requires that legislative classifications be "reasonably
  necessary to accomplish the State's claimed  objectives."  Ante, at 24.  In
  our imperfect world, few legislative classifications are "necessary,"  and
  most legislation could be more narrowly tailored to the state's objective. 
  I cannot square this  standard with our limited role in constitutional
  adjudication.  As I noted earlier, while language to  this effect appears
  in Ludlow, it has never been used as the basis of one of our decisions
  until  today.

       More importantly, I cannot endorse, in this vitally important area of
  constitutional review, a  standard that relies wholly on factors and
  balancing, with no mooring in any criteria or guidelines,  however
  imperfect they may be.  On this point, I agree with Justice Johnson.  See
  post, at 21 n.13.  I accept the majority's assertion that it has attempted
  to avoid a standard based on "personal  notions," and that all
  constitutional adjudication requires reasoned judgment, but I do not
  believe  that it has succeeded in properly applying the critical
  considerations it has identified.  Ante, at 25.   Instead of mooring its
  analysis within the framework of fundamental rights and suspect 
  classifications, the majority professes to make its new Article 7 standard
  "objective and grounded"  by requiring courts, in balancing the competing
  interests, to "look to the history and `traditions  from which [the State]
  developed' as well as those `from which it broke.'"  Ante, at 25.  It is 
  difficult to conceive that any persons sitting on this Court, whatever
  their philosophical persuasions,  would be insensitive to the history and
  traditions from which Vermont developed, and those from  which it broke,
  but how this standard will be applied to Article 7 challenges is not at all
  predictable.  In the end, the approach the majority has developed relies
  too much on the identities and personal  philosophies of the men and women
  who fill the chairs at the Supreme Court, too little on  ascertainable
  standards that judges of 

  

  different backgrounds and philosophies can apply equally, and  very little,
  if any, on deference to the legislative branch.

       The final irony in this decision for me is that the balancing and
  weighing process set forth in  the Court's opinion describes exactly the
  process we would expect legislators to go through if they  were facing the
  question before us.  We are judges, not legislators.

       For the above reasons, I concur in the mandate, but respectfully
  disagree with Part II of the  Court's decision, the majority's rationale
  for reaching this mandate.


                                    _______________________________________
                                    Associate Justice

------------------------------------------------------------------------------
                                  Footnotes


FN1.  The majority's characterization of Brigham is neither fair nor
  accurate.  The majority states  that Brigham "acknowledged the federal
  standard," but "eschewed the federal categories of  analysis."  Ante, at
  14.  Far beyond "acknowledging" the federal standards, Brigham held 
  explicitly that they applied under Article 7 -- a holding now implicitly
  overruled by the majority  decision.  Rather than eschewing the federal
  standards, we held that the educational financing  system advanced no
  "legitimate governmental purpose" under any standard.  See Brigham, 166 Vt. 
  at 265, 692 A.2d  at 396. 

FN2.  The majority's statement that suspect class analysis is "often
  effectively ignored in our more  recent decisions" is inaccurate, unless
  our statements that we need not reach the issue in a case  somehow
  "ignores" suspect-class analysis.  Ante, at 15.  See, e.g., MacCallum, 165
  Vt. at 457  n.1, 686 A.2d  at 938 n.1 (in view of our disposition, we need
  not reach plaintiff's claim that  adopted persons are suspect class).

FN3.  My concern about the effect of this decision as a precedent is
  heightened by the majority's  treatment of the Ludlow decision.  It is fair
  to say that for some purposes, there have been two  versions of the Ludlow
  decision.  First, there is the one we have described in dicta, usually as a 
  historical event.  See State v. Brunelle, 148 Vt. 347, 351, 534 A.2d 198,
  201-02 (1987);  Hodgeman, 157 Vt. at 464, 599 A.2d  at 1373.  This one holds
  that Article 7 is "more stringent  than the federal constitutional standard
  which requires only a rational justification."  Brunelle, 148  Vt. at 351,
  534 A.2d  at 201-02.  Second, there is the Ludlow decision that we have
  actually used in  deciding cases.  See, e.g., Choquette, 153 Vt. at 52, 569 A.2d  at 459; In re Property of One  Church Street, 152 Vt. 260, 263-65, 565 A.2d 1349, 1350-51 (1989).  This version of Ludlow  holds that the Article
  7 standard is the reasonable-relationship test applicable under the
  Fourteenth  Amendment to the United States Constitution.  See Choquette,
  153 Vt. at 52, 569 A.2d  at 459; see  also Lorrain, 160 Vt. at 212, 628 A.2d 
  at 550 (test under Article 7 is same as that under federal  Equal
  Protection Clause).

       Obviously, these versions of Ludlow are irreconcilable, and only one
  can be accurate.  In  case after case, advocates pursuing Article 7
  challenges have tried, and failed, to get us to adopt the  first version of
  Ludlow as the basis for a favorable decision.  The first version has
  appeared only in  dicta in two isolated cases.  Today, seventeen years
  after the Ludlow decision, the advocates have  finally succeeded, with a
  begrudging acknowledgment from the majority that our decisions "have 
  consistently recited" the federal test and are now wholesale overruled.

       In view of this history of treatment of Ludlow, I find incredible the
  majority's statement  that "Vermont case law has consistently demanded in
  practice that statutory exclusions from  publicly-conferred benefits and
  protections must be `premised on an appropriate and overriding  public
  interest,'" ante, at 15, quoting Ludlow as if all of our decisions after
  Ludlow disingenuously  mouthed one deferential constitutional standard but
  silently employed a more activist standard.  If  one general statement
  could be made, it would be that we have never actually employed the 
  standard quoted by the majority in any case, until this one.

       My fear is that once we get beyond this controversial decision, we
  will end up with two  versions of it.  Will we go back to minimalist review
  when we get a claim of discrimination, for  example, between large stores
  and small ones, or will the more activist review promised by this  decision
  prevail?  Our history in applying Ludlow says that we will do the former,
  which I find to  be the more desirable, but a serious blow will have been
  dealt to our ability to develop neutral  constitutional doctrine.
 
------------------------------------------------------------------------------
                          Concurring and Dissenting


  


       JOHNSON, J., concurring in part and dissenting in part.   Forty years
  ago, in  reversing a decision that had denied injunctive relief for the
  immediate desegregation of publicly  owned parks and recreational
  facilities in Memphis, Tennessee, a unanimous United States  Supreme Court
  stated:

   The basic guarantees of our Constitution are warrants for the here 
   and now and, unless there is an overwhelming compelling reason, 
   they are to be promptly fulfilled.

  Watson v. City of Memphis, 373 U.S. 526, 533 (1963).

       Plaintiffs come before this Court claiming that the State has
  unconstitutionally deprived  them of the benefits of marriage based solely
  upon a discriminatory classification that violates their  civil rights. 
  They ask the Court to remedy the unlawful discrimination by enjoining the
  State and  its municipalities from denying them the license that serves to
  identify the persons entitled to those  benefits.  The majority agrees that
  the Common Benefits Clause of the Vermont Constitution  entitles plaintiffs
  to obtain the same benefits and protections as those bestowed upon married 
  opposite-sex couples, yet it declines to give them any relief other than an
  exhortation to the  Legislature to deal with the problem.  I concur with
  the majority's holding, but I respectfully  dissent from its novel and
  truncated remedy, which in my view abdicates this Court's constitutional 
  duty to redress violations of constitutional rights.  I would grant the
  requested relief and enjoin  defendants from denying plaintiffs a marriage
  license based solely on the sex of the applicants.

       The majority declares that the issue before this Court does not turn
  on the heated moral  debate over intimate same-sex relationships, and
  further, that this Court has a constitutional  responsibility to consider
  the legal merits of even controversial cases.  See ante, at 3.  Yet, 
  notwithstanding these pronouncements, the majority elects to send
  plaintiffs to an uncertain fate 

  

  in  the political caldron of that very same moral debate.(FN1) And to what
  end?  Passing this case on to the  Legislature will not alleviate the
  instability and uncertainty that the majority seeks to avoid, and will 
  unnecessarily entangle this Court in the Legislature's efforts to
  accommodate the majority's  mandate within a "reasonable period of time." 
  Ante, at 41.

       In 1948, when the California Supreme Court struck down a state law
  prohibiting the  issuance of a license authorizing interracial marriages,
  the Court did not suspend its judgment to  allow the Legislature an
  opportunity to enact a separate licensing scheme for interracial marriages.  
  See Perez v. Lippold, 198 P.2d 17, 29 (Cal. 1948) (granting writ of
  mandamus compelling county  clerk to issue certificate of registry). 
  Indeed, such a mandate in that context would be  unfathomable to us today. 
  Here, as in Perez, we have held that the State has unconstitutionally 
  discriminated against plaintiffs, thereby depriving them of civil rights to
  which they are entitled.   Like the Hawaii Circuit Court in Baehr v. Miike,
  No. Civ.91-1394, 1996 WL 694235, at *22  (Haw. Cir. Ct., Dec. 3, 1996),
  which rejected the State's reasons for excluding same-sex couples  from
  marriage, we should simply enjoin the State from denying marriage licenses
  to plaintiffs based  on sex or sexual orientation.  That remedy would
  provide prompt and complete relief to plaintiffs  and create reliable
  expectations that would stabilize the legal rights and duties of all
  couples.

                                     I.

       My dissent from the majority's mandate is grounded on the government's
  limited interest in  dictating public morals outside the scope of its
  police power, and the differing roles of the judicial  and legislative
  branches in our tripartite system of government.  I first examine the

  

  State's narrow  interest in licensing marriages, then contrast that
  interest with the judiciary's fundamental duty to  remedy civil rights
  violations, and lastly emphasize the majority's failure to adequately
  explain why  it is taking the unusual step of suspending its judgment to
  allow the Legislature an opportunity to  redress the unconstitutional
  discrimination that we have found.

       This case concerns the secular licensing of marriage.  The State's
  interest in licensing  marriages is regulatory in nature.  See Southview
  Coop. Housing v. Rent Control Bd., 486 N.E.2d 700, 704 (Mass. 1985)
  ("Licensing is simply a means of regulating.").  The regulatory purpose of 
  the licensing scheme is to create public records for the orderly allocation
  of benefits, imposition of  obligations, and distribution of property
  through inheritance.  Thus, a marriage license merely acts  as a trigger
  for state-conferred benefits.  See Priddy v. City of Tulsa, 882 P.2d 81, 83
  (Okla.  Crim. App. 1993) (license gives to licensee special privilege not
  accorded to others, which licensee  otherwise would not enjoy).  In
  granting a marriage license, the State is not espousing certain  morals,
  lifestyles, or relationships, but only identifying those persons entitled
  to the benefits of the  marital status.(FN2)  See People v. County of
  Mendocino, 683 P.2d 1150, 1155 (Cal. 1984) (licensing  regulates activity based on
  determination of qualification of licensee).

       Apart from establishing restrictions on age and consanguinity related
  to public health and  safety, see 18 V.S.A. § 5142 (minors and incompetent
  persons); 15 V.S.A. §§ 1, 2  (consanguinity), the statutory scheme at issue
  here makes no qualitative judgment about which  persons may obtain a
  marriage license.  See Leduc v. Commonwealth, 657 N.E.2d 755, 756-57 
  (Mass. 1995) (historical aim of licensure is generally to preserve public
  health, safety and welfare).  Hence, the State's interest concerning the
  challenged licensing statute is a narrow one, and  plaintiffs have
  prevailed on their constitutional claim because the State has failed to
  raise any  legitimate reasons related to public health or safety for
  denying marital benefits to same-sex  couples.  See Commonwealth v.
  Bonadio, 415 A.2d 47, 50 (Pa. 1980) ("With respect to regulation  of
  morals, the police power should properly be exercised to protect each
  individual's right to be  free from interference in defining and pursuing
  his own morality but not to enforce a majority  morality on persons whose
  conduct does not harm others.").  In my view, the State's interest in 
  licensing marriages would be undisturbed by this Court enjoining defendants
  from denying  plaintiffs a license. 

       While the State's interest in licensing marriages is narrow, the
  judiciary's obligation to  remedy constitutional violations is central to
  our form of government.  Indeed, one of the  

  

  fundamental principles of our tripartite system of government is that the
  judiciary interprets and  gives effect to the constitution in cases and
  controversies concerning individual rights.  See  Marbury v. Madison, 5
  U.S. (1 Cranch) 137, 163, 177-78 (1803); see also Shields v. Gerhart, 163 
  Vt. 219, 223, 658 A.2d 924, 927-28 (1995) (emphasizing "the preeminence of
  the Vermont  Constitution in our governmental scheme," which includes right
  of citizens under Chapter I, Article  4 to find a certain remedy promptly
  and without delay).(FN3)

       This power is "not merely to rule on cases, but to decide them." 
  Plaut v. Spendthrift Farm,  Inc., 514 U.S. 211, 218-19 (1995) (emphasis in
  original); see Records of the Council of Censors of  the State of Vermont
  431 (P. Gillies and D. Sanford eds., 1991) (supreme judicial tribunals are
  to  regard constitution as fundamental law superior to legislative
  enactment; consequently, if enactment  is repugnant to constitution, judges
  are bound to pronounce it inoperative and void).  As this Court  has stated
  on numerous occasions, when measures enacted pursuant to the State's police
  powers  have no real or substantial relation to any legitimate purpose of
  those powers and invade individual  "`rights secured by the fundamental
  law, it is the duty of the courts to so adjudge, and thereby give  effect
  to the Constitution.'"  State v. Morse, 84 Vt. 387, 394, 80 A. 189, 191-92
  (1911) (quoting  Mugler v. Kansas, 123 U.S. 623 (1887)); 

  

  see Beecham v. Leahy, 130 Vt. 164, 172, 287 A.2d 836, 841 (1972) ("It is
  the function of the judicial branch to pass upon the appropriateness and 
  reasonableness of the legislative exercise of police power.").  This Court
  emphasized in Morse that  "in its last analysis, the question of the
  validity of such measures [enacted under the police powers]  is one for the
  court."  84 Vt. at 394, 80 A.  at 191.

       The power of courts to fashion remedies for constitutional violations
  is well established in  both this Court's and the United States Supreme
  Court's jurisprudence concerning individual rights  and equal protection. 
  See MacCallum v. Seymour's Adm'r, 165 Vt. 452, 462, 686 A.2d 935, 941 
  (1996) (holding that statute denying adopted children right to inherit from
  collateral heirs violated  Common Benefits Clause, and declaring plaintiff
  to be lawful heir of estate of collateral relative);  Medical Ctr. Hosp. v.
  Lorrain, 165 Vt. 12, 14-15, 675 A.2d 1326, 1329 (1996) (determining that 
  doctrine making husbands liable to creditors for necessary items provided
  to wives violated  principle of equal protection when applied only to men,
  and choosing to abolish doctrine rather than  to extend it to both men and
  women); see also Heckler v. Mathews, 465 U.S. 728, 740 (1984)  (when right
  invoked is that to equal treatment, "the appropriate remedy is a mandate of
  equal  treatment"); Davis v. Passman, 442 U.S. 228, 241-42 (1979) (within
  "great outlines" of  Constitution, "judiciary is clearly discernible as the
  primary means through which rights may be  enforced"; unless Constitution
  commits issue to coordinate branch, "we presume that justiciable 
  constitutional rights are to be enforced through the courts"). 
  Particularly in civil rights cases  involving discrimination against a
  disfavored group, "courts do not need specific [legislative]  authorization
  to employ a remedy, at law or in equity, that is tailored to correct a
  constitutional  wrong."  Aguayo v. Christopher, 865 F. Supp. 479, 487-88
  (N.D.Ill. 1994) (finding  unconstitutional on its face statute making
  citizenship available to 

  

  foreign-born children of citizen  fathers, but not citizen mothers, and
  issuing judgment declaring plaintiff to be citizen).

       Accordingly, absent "compelling" reasons that dictate otherwise, it is
  not only the  prerogative but the duty of courts to provide prompt relief
  for violations of individual civil rights.   See Watson, 373 U.S.  at 532-33
  (defendants have heavy burden of showing that delay in  desegregating
  public parks and recreational facilities is "manifestly compelled by
  constitutionally  cognizable circumstances").  This basic principle is
  designed to assure that laws enacted through the  will of the majority do
  not unconstitutionally infringe upon the rights of a disfavored minority. 

       There may be situations, of course, when legislative action is
  required before a court-ordered remedy can be fulfilled.  For example, in
  Brigham v. State, 166 Vt. 246, 249, 269, 692 A.2d 384, 386, 398 (1997),
  this Court declared that Vermont's system for funding public education 
  unconstitutionally deprived Vermont schoolchildren of a right to an equal
  educational  opportunity, and then retained jurisdiction until the
  Legislature enacted legislation that satisfied the  Court's holding. 
  Plainly, it was not within the province of this Court to create a new
  funding  system to replace the one that we had declared unconstitutional. 
  The Legislature needed to enact  legislation that addressed issues such as
  the level of state funding for public schools, the sources of  additional
  revenue, and the framework for distributing state funds.  See Act 60, 16
  V.S.A. §§  4000-4029.  In finding a funding source, the Legislature had to
  consider whether to apply a flat or  progressive tax on persons, property,
  entities, activities or income.  These considerations, in turn,  required
  the Legislature to consider what state programs would have to be curtailed
  to make up for  the projected additional school funding.  All of these
  complex political decisions entailed core  legislative functions that were
  a necessary predicate to fulfillment 

  

  of our holding.  See Brigham,  166 Vt. at 249, 692 A.2d  at 386 (devising
  system for funding public education lies within  prerogative of
  Legislature).

       A completely different situation exists here.  We have held that the
  Vermont Constitution  entitles plaintiffs "to obtain the same benefits and
  protections afforded by Vermont law to married  opposite-sex couples." 
  Ante, at 39.  Given this holding, the most straightforward and effective 
  remedy is simply to enjoin the State from denying plaintiffs a marriage
  license, which would  designate them as persons entitled to those benefits
  and protections.(FN4)  No legislation is required to  redress the
  constitutional violation that the Court has found.  Cf. Watson, 373 U.S.  at
  532  (desegregation of recreational facilities does not present same kind
  of cognizable difficulties  inherent in desegregating schools).  Nor does
  our paramount interest in vindicating plaintiffs'  constitutional rights
  interfere in any way with the State's interest in licensing marriages.  Far
  from  intruding upon the State's narrow interest in its licensing statute,
  allowing plaintiffs to obtain a  license would further the overall goals of
  marriage, as defined by the majority -- to provide stability  to
  individuals, their families, and the broader community by clarifying and
  protecting the rights of  married persons, see ante, at 35.  Cf. In re
  B.L.V.B., 160 Vt. 368, 372, 375, 628 A.2d 1271,  1274-75 (1993) (purpose of
  adoption statute read in its entirety is to clarify and protect legal
  rights  of adopted persons, not to proscribe adoptions by certain
  combinations of individuals; denying  children of same-sex partners
  security of legally recognized relationship with second parent serves  no
  legitimate state interest).

  

       The majority declines to provide plaintiffs with a marriage license,
  however, because a  sudden change in the marriage laws "may have disruptive
  and unforeseen consequences," and  "uncertainty and confusion could
  result."  Ante, at 40.  Thus, within a few pages of rejecting the  State's
  doomsday speculations as a basis for upholding the unconstitutionally
  discriminatory  classification, the majority relies upon those same
  speculations to deny plaintiffs the relief to which  they are entitled as
  the result of the discrimination.  See ante, at 37, 39.

       During the civil rights movement of the 1960's, state and local
  governments defended  segregation or gradual desegregation on the grounds
  that mixing the races would lead to interracial  disturbances.  The Supreme
  Court's "compelling answer" to that contention was "that constitutional 
  rights may not be denied simply because of hostility to their assertion or
  exercise."  See Watson,  373 U.S.  at 535.  Here, too, we should not
  relinquish our duty to redress the unconstitutional  discrimination that we
  have found merely because of "personal speculations" or "vague 
  disquietudes."  Id. at 536.  While the laudatory goals of preserving
  institutional credibility and  public confidence in our government may
  require elected bodies to wait for changing attitudes  concerning public
  morals, those same goals require courts to act independently and decisively
  to  protect civil rights guaranteed by our Constitution.(FN5)

  

       None of the cases cited by the majority support its mandate suspending
  the Court's  judgment to allow the Legislature to provide a remedy.  In
  Linkletter v. Walker, 381 U.S. 618,  622 (1965), the issue was whether the
  decision in Mapp v. Ohio, 367 U.S. 643 (1961) extending  the exclusionary
  rule (FN6) to the states through the federal due process clause applied to
  all state court  convictions that had become final before Mapp.  The Court
  declined to apply Mapp retroactively,  stating that both defendants and the
  states had relied upon the decision that Mapp had overruled,  that the
  fairness of the underlying trials had not been placed at issue, and that
  applying Mapp  retroactively would severely tax the administration of
  justice in state courts.  See Linkletter, 381 U.S.  at 637-39.  After
  noting that it was not concerned with "pure" prospectivity because the 
  exclusionary rule had been applied in Mapp itself, the Court held that new
  rules may be applied  prospectively "where the exigencies of the situation
  require such an application."  See id. at 622,  628.

       Unlike Linkletter, the issue here is not whether the majority's
  holding should be applied  retroactively or prospectively, but rather
  whether the relief it has promised should be provided  

  

  promptly by this Court or at some uncertain future time by the Legislature. 
  Neither these plaintiffs,  nor any same-sex couples seeking the benefits
  and protections of marriage, obtain any relief until  the Legislature acts,
  or failing that, this Court acts again.  Thus, the majority is not applying
  its  holding on even a purely prospective basis.  In any event, assuming
  that Linkletter continues to  have vitality in cases involving civil rights
  violations, see Fairfax Covenant Church v. Fairfax  County Sch. Bd., 17 F.3d 703, 709, 710 (4th Cir. 1994) (stating that Supreme Court has recently 
  cast serious doubt upon practice of departing from traditional rule of
  retroactive application, which  is "the rule inherent in the judicial
  function" of applying and interpreting law in real controversies),  the
  "unforeseen consequences" alluded to by the majority cannot be considered
  "exigencies"  warranting relief only at some unspecified future time.

       The other two cases cited by the majority also concern whether court
  rulings should be  applied prospectively or retroactively.  In those cases,
  the courts weighed the potential  consequences of a decision to abrogate
  common-law sovereign immunity -- the doctrine declaring  that the
  government is immune from lawsuits.  See Smith v. State, 473 P.2d 937, 950
  (Idaho 1970)  (applying decision to abrogate doctrine of sovereign immunity
  to cases before court but otherwise  staying decision until adjournment of
  following legislative session to prevent undue hardship to  government
  agencies that relied on doctrine); Spanel v. Mounds View Sch. Dist. No.
  621, 118 N.W.2d 795, 803-04 (Minn. 1962) (staying decision to abrogate
  sovereign immunity until  following legislative session to prevent hardship
  to government agencies that relied on doctrine); cf.  Presley v. Miss.
  State Highway Comm'n, 608 So. 2d 1288, 1298 (Miss. 1992) (giving
  retroactive  application to decision finding sovereign immunity act
  unconstitutional would pose fiscally  disastrous consequences to state
  agencies).  These courts simply acknowledged that retroactively  applying
  their holding abrogating sovereign immunity, without affording the

  

  Legislature an  opportunity either to alter insurance coverage or enact an
  immunity statute, would have potentially  disastrous fiscal consequences
  for the state.  See Hillerby v. Town of Colchester, 167 Vt. 270, 293,  706 A.2d 446, 459 (1997) (Johnson, J., dissenting) (favoring quasi-prospective
  approach that  would afford Legislature time to react to holding abrogating
  general municipal immunity).  That is  not the situation here, where no
  disastrous consequences, fiscal or otherwise, have been identified.	

       I recognize that the Legislature is, and has been, free to pass
  legislation that would provide  same-sex couples with marital benefits. 
  But the majority does not explain why it is necessary for  the Legislature
  to act before we remedy the constitutional violation that we have found. 
  In our  system of government, civil rights violations are remedied by
  courts, not because we issue "Holy  Writ" or because we are "the only
  repository of wisdom."  Ante, at 43-44.  It is because the courts  "must
  ultimately define and defend individual rights against government in terms
  independent of  consensus or majority will."  L. Tribe, American
  Constitutional Law § 15.3, at 896 (1978).(FN7)

       "`[G]roups 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 governments move  toward reform one step at
  a time.'"  Rosenberg v. Canada, Docket No. C22807 (Ontario Court of 
  Appeals, April 23, 1998, at 17-18 (quoting Vriend v. Alberta, [1988] S.C.J.
  No. 29 (Q.L.), at  para. 122).  Once a court has determined that a
  discriminatory classification has deprived 

  

  plaintiffs  of a constitutionally ripe entitlement, the court must decide
  if the classification "is demonstrably  justifiable in a free and
  democratic society, not whether there might be a more propitious time to 
  remedy it."  Id. at 18.

       Today's decision, which is little more than a declaration of rights,
  abdicates that  responsibility.  The majority declares that plaintiffs have
  been unconstitutionally deprived of the  benefits of marriage, but does not
  hold that the marriage laws are unconstitutional, does not hold  that
  plaintiffs are entitled to the license that triggers those benefits, and
  does not provide plaintiffs  with any other specific or direct remedy for
  the constitutional violation that the Court has found to  exist.  By
  suspending its judgment and allowing the Legislature to choose a remedy,
  the majority,  in effect, issues an advisory opinion that leaves plaintiffs
  without redress and sends the matter to an  uncertain fate in the
  Legislature.  Cf. In re Williams, 154 Vt. 318, 318-19, 321, 577 A.2d 686, 
  686-87 (1990) (statute requiring district court to hold hearings, issue
  findings, and advise local  legislative bodies concerning alleged police
  misconduct violated separation of powers between  judicial and legislative
  branches by requiring courts to give advisory opinions, upon which 
  municipalities might or might not act).  Ironically, today's mandate will
  only increase "the  uncertainty and confusion" that the majority states it
  is designed to avoid.  Ante, at 40.

       No decision of this Court will abate the moral and political debate
  over same-sex marriage.  My view as to the appropriateness of granting
  plaintiffs the license they seek is not based on any  overestimate (or any
  estimate) of its effectiveness, nor on a miscalculation (or any
  calculation) as to  its likely permanence, were it to have received the
  support of a majority of this Court.  Rather, it is  based on what I
  believe are the commands of our Constitution.

                                     II.

       Although I concur with the majority's conclusion that Vermont law
  unconstitutionally  excludes same-sex couples from the benefits of
  marriage, I write separately to state my belief that  this is a
  straightforward case of sex discrimination.

       As I argue below, the marriage statutes establish a classification
  based on sex.  Whether  such classification is legally justifiable should
  be analyzed under our common-benefits  jurisprudence, which until today,
  has been closely akin to the federal equal-protection analysis  under the
  Fourteenth Amendment.  Therefore, the State must show that the
  classification is  narrowly tailored to further important, if not
  compelling, interests.  Not only do the rationalizations  advanced by the
  State fail to pass constitutional muster under this or any other form of
  heightened  scrutiny,(FN8) they fail to satisfy the rational-basis test as
  articulated under the Common Benefits  Clause.(FN9)

       "We have held that the Common Benefits Clause in the Vermont
  Constitution, see ch. I,  art. 7, is generally coextensive with the
  equivalent guarantee in the United States Constitution, 

  

  and  imports similar methods of analysis."  Brigham, 166 Vt. at 265, 692 A.2d  at 395; see also Lorrain,  160 Vt. at 212, 628 A.2d  at 550 (test under
  Common Benefits Clause is same as test under federal  Equal Protection
  Clause). Where the statutory scheme affects a fundamental constitutional
  right or  involves a suspect classification, "the State must demonstrate
  that any discrimination occasioned by  the law serves a compelling
  governmental interest, and is narrowly tailored to serve that objective." 
  Brigham, 166 Vt. at 265, 692 A.2d  at 396.  Otherwise, classifications are
  constitutional if they are  "reasonably related to the promotion of a valid
  public purpose." MacCallum, 165 Vt. at 457, 686 A.2d  at 937-38.

       As the majority states, the marriage "statutes, read as a whole,
  reflect the common  understanding that marriage under Vermont law consists
  of a union between a man and a woman."  Ante, at 6.  Thus, the statutes
  impose a sex-based classification.  See, e.g., Brause v. Bureau of  Vital
  Statistics, No. 3AN-95-6562 CI, *6, 1998 WL 88743 (Alaska Super. Feb. 27,
  1998)  (prohibition on same-sex marriage is sex-based classification);
  Baehr v. Lewin, 852 P.2d 44, 64  (Haw. 1993) (Levinson, J., plurality
  opinion) (same).  A woman is denied the right to marry  another woman
  because her would-be partner is a woman, not because one or both are
  lesbians.   Similarly, a man is denied the right to marry another man
  because his would-be partner is a man,  not because one or both are gay. 
  Thus, an individual's right to marry a person of the same sex is 
  prohibited solely on the basis of sex, not on the basis of sexual
  orientation.  Indeed, sexual  orientation does not appear as a
  qualification for marriage under the marriage statutes.  The State  makes
  no inquiry into the sexual practices or identities of a couple seeking a
  license.

       The State advances two arguments in support of its position that
  Vermont's marriage laws  do not establish a sex-based classification.  The
  State first contends that the marriage statutes 

  

  merely  acknowledge that marriage, by its very nature, cannot be comprised
  of two persons of the same  sex.  Thus, in the State's view, it is the
  definition of marriage, not the statutes, that restricts  marriage to two
  people of the opposite sex.  This argument is circular.  It is the State
  that defines  civil marriage under its statute.  The issue before us today
  is whether the State may continue to  deprive same-sex couples of the
  benefits of marriage.  This question is not resolved by resorting to  a
  historical definition of marriage; it is that very definition that is being
  challenged in this case.

       The State's second argument, also propounded by the majority, see
  ante, at 27 n.13, is that  the marriage statutes do not discriminate on the
  basis of sex because they treat similarly situated  males the same as
  similarly situated females.  Under this argument, there can be no sex 
  discrimination here because "[i]f a man wants to marry a man, he is barred;
  a woman seeking to  marry a woman is barred in precisely the same way.  For
  this reason, women and men are not  treated differently."  C. Sunstein,
  Homosexuality and the Constitution, 70 Ind. L.J. 1, 19 (1994).   But
  consider the following example.  Dr. A and Dr. B both want to marry Ms. C,
  an X-ray  technician.  Dr. A may do so because Dr. A is a man.  Dr. B may
  not because Dr. B is a woman.   Dr. A and Dr. B are people of opposite
  sexes who are similarly situated in the sense that they both  want to marry
  a person of their choice.  The statute disqualifies Dr. B from marriage
  solely on the  basis of her sex and treats her differently from Dr. A, a
  man.  This is sex discrimination.(FN10)

  


       I recognize, of course, that although the classification here is
  sex-based on its face, its most  direct impact is on lesbians and gay men,
  the class of individuals most likely to seek same-sex  marriage.  Viewing
  the discrimination as sex-based, however, is important.  Although the
  original  purpose of the marriage statutes was not to exclude same-sex
  couples, for the simple reason that  same-sex marriage was very likely not
  on the minds of the Legislature when it passed the licensing  statute, the
  preservation of the sex-based classification deprives lesbians and gay men
  of the right to  marry the life partner of their choice.  If, as I argue
  below, the sex-based classification contained in  the marriage laws is
  unrelated to any valid purpose, but rather is a vestige of sex-role
  stereotyping  that applies to both men and women, the classification is
  still unlawful sex discrimination even if it  applies equally to men and
  women.  See McCallum, 165 Vt. at 459, 686 A.2d  at 939 (Constitution  does
  not permit law to give effect, either directly or indirectly, to private
  biases; when government  itself makes the classification, it is obliged to
  afford all persons equal protection of the law); Loving  v. Virginia, 388 U.S. 1, 8-9, 11 (1967) (statute prohibiting racial intermarriage violates
  Equal  Protection Clause although it applies equally to Whites and Blacks
  because classification was  designed to maintain White Supremacy.)(FN11)

  

       Although Vermont has not had occasion to consider the question, most,
  if not all, courts  have held that the denial of rights or benefits on the
  basis of sex subject the state's action to some  level of heightened
  scrutiny.(FN12) This is so because the sex of an individual "frequently bears
  no  relation to ability to perform or contribute to society."   Frontiero
  v. Richardson, 411 U.S. 677,  686 (1973) (plurality opinion).  Moreover, in
  some cases, such as here, sex-based classifications  "very likely reflect
  outmoded notions of the relative capabilities of men and women."  Cleburne
  v.  Cleburne Living Ctr., Inc., 473 U.S. 432, 441 (1985).

       I do not believe that it is necessary to reach the question in this
  case, however, because in  my view, the justifications asserted by the
  State do not satisfy even our rational-basis standard  under the Common
  Benefits Clause, which requires that the classification be "reasonably
  related to  the promotion of a valid public purpose."  MacCallum, 165 Vt.
  at 457 n.1, 686 A.2d  at 938 n.1  (because statute failed to pass
  constitutional muster under rational-basis test, no need to determine 
  whether adopted persons are suspect class).(FN13) In MacCallum, we 
  invalidated, under 

  

  [continues text of FN13 (see "Footnotes" below)]

  

  the Common  Benefits Clause, a statute denying an adopted person's right of
  inheritance from collateral kin,  stating that the statute was grounded on
  outdated prejudices instead of a valid public purpose.  See  id. at 460-62,
  686 A.2d  at 939-41.  Rather than blindly accept any conceivable
  justification  proffered by the State in that case, we carefully considered
  the State's rationales to determine  whether the discriminatory
  classification rested upon a reasonable consideration of legislative 
  policy.  See id. at 457, 459-61, 696 A.2d  at 938, 939-40; see also Romer v.
  Evans, 517 U.S. 620,  635-36 (state constitutional amendment prohibiting
  all legislative, executive, or judicial action  designed to protect
  homosexuals from discrimination violated Equal Protection Clause under 
  rational-basis test because it was discriminatory and had no proper
  legislative end); Cleburne, 473 U.S.  at 450 (ordinance requiring special
  use permit for operation of home for mentally retarded  violated Equal
  Protection Clause under rational basis test because it rested on irrational
  prejudice  rather than legitimate government purpose).

       Before applying the rational-basis standard to the State's
  justifications, it is helpful to  examine the history of the marriage laws
  in Vermont.  There is no doubt that, historically, the  marriage laws
  imposed sex-based roles for the partners to a marriage -- male provider and
  female  dependent -- that bore no relation to their inherent abilities to
  contribute to society.  Under the  common law, husband and wife were one
  person.  See R. & E. Builders, Inc. v. Chandler, 144 Vt.  302, 303-04, 476 A.2d 540, 541 (1984).  The legal existence of a woman 

  

  was suspended by  marriage; she merged with her husband and held no
  separate rights to enter into a contract or  execute a deed.  See id.  She
  could not sue without her husband's consent or be sued without  joining her
  husband as a defendant.  See id.  Moreover, if a woman  did not hold
  property for her  `sole and separate use' prior to marriage, the husband
  received a freehold interest in all her  property, entitling him to all the
  rents and profits from the property.  See id.

       Starting in the late nineteenth century, Vermont, like other states,
  began to enact statutes,  such as the Rights of Married Women Act, see 15
  V.S.A. §§ 61-69, to grant married women  property and contractual rights
  independent of their husbands.  See Medical Ctr. Hosp. v. Lorrain,  165 Vt.
  12, 14, 675 A.2d 1326, 1328 (1996).  The Legislature's intent in enacting
  the Rights of  Married Women Act was to "reject[] the archaic principle
  that husband and wife are `one person,'"  and "to set a married woman free
  `from the thraldom of the common law.'" Richard v. Richard,  131 Vt. 98,
  102, 106, 300 A.2d 637, 639, 641 (1973).  Thus, we recognized that the
  legal  existence of married women was no longer merged into that of their
  husbands, see Lorrain, 165 Vt.  at 15, 676 A.2d  at 1329, and that "a
  married woman is a `person' under the Constitution of  Vermont."  Richard,
  131 Vt. at 106, 300 A.2d  at 641.

       Today, the partners to a marriage are equal before the law.  See R & E
  Builders, 144 Vt. at  304, 476 A.2d  at 541 (modern statutes attempt to
  accord wives legal rights equal to husbands).  A  married woman may now
  enter contracts, sue and be sued without joining her husband, purchase  and
  convey property separate from her husband, own property, and collect rents
  and profits from  it.  See Lorrain, 165 Vt. at 15, 675 A.2d  at 1329 (women
  have property and contractual rights  equal to men regardless of their
  marital status).  As the Legislature enacted statutes to confer rights 
  upon married women, this Court abolished common-law doctrines arising from
  the common law  theory that husband and wife were one person and that 

  

  the wife had no independent legal existence.  See, e.g., Richard, 131 Vt.
  at 106, 300 A.2d  at 641 (abolishing interspousal immunity, which was  based
  on "archaic principle" that husband and wife are one person, to allow
  passenger wife to sue  husband for personal injuries arising from husband's
  negligence in operating automobile).

       The question now is whether the sex-based classification in the
  marriage law is simply a  vestige of the common-law unequal marriage
  relationship or whether there is some valid  governmental purpose for the
  classification today.  See MacCallum, 165 Vt. at 460-62, 686 A.2d   at
  939-41 (State's rationales proffered to validate statutory classification
  cannot rest on outdated  presumptions not reasonable today when vast
  cultural and social changes have occurred).  In  support of the marriage
  statutes, the State advances public purposes that fall into three general 
  categories.

       In the first category, the State asserts public purposes -- uniting
  men and women to  celebrate the "complementarity" (sic) of the sexes and
  providing male and female role models for  children -- based on broad and
  vague generalizations about the roles of men and women that reflect 
  outdated sex-role stereotyping.  The State contends that (1) marriage
  unites the rich physical and  psychological differences between the sexes;
  (2) sex differences strengthen and stabilize a marriage;  (3) each sex
  contributes differently to a family unit and to society; and (4) uniting
  the different male  and female qualities and contributions in the same
  institution instructs the young of the value of  such a union.  The State
  relies on social science literature, such as Carol Gilligan's In a
  Different  Voice: Psychological Theory and Women's Development (1982), to
  support its contention that  there are sex differences that justify the
  State requiring two people to be of opposite sex to marry.

       The State attempts to analogize this case to the changes in law
  brought about by women's  

  

  participation in the legal profession starting in the 1970s, arguing that
  women have brought a  different voice to legal theory and practice.  The
  State also points to United States v. Virginia, 518 U.S. 515, 533 (1996)
  (hereinafter VMI), arguing that an institution or community made up 
  exclusively of one sex is different from a community composed of both.  The
  goal of diversity has  been recognized to justify affirmative action
  programs in public broadcasting and education.  See,  e.g., Metro v.
  Broadcasting, Inc. FCC, 497 U.S. 547, 567-68 (1990) (holding that state
  interest in  racial diversity in broadcasting justified affirmative-action
  racial classification); Regents of Univ. of  Calif. v. Bakke, 438 U.S. 265,
  311-319 (1978) (opinion of Powell, J.) (endorsing race  classification in
  university admission as legitimate means of achieving diversity). 
  Similarly, the  recognition that women may contribute differently from men
  is a valid argument for women's full  participation in all aspects of
  public life.  The goal of community diversity has no place, however,  as a
  requirement of marriage.

       To begin with, carried to its logical conclusion, the State's
  rationale could require all  marriages to be between people, not just of
  the opposite sex, but of different races, religions,  national origins, and
  so forth, to promote diversity.  Moreover, while it may be true that the
  female  voice or point of view is sometimes different from the male, such
  differences are not necessarily  found in comparing any given man and any
  given woman.  The State's implicit assertion otherwise  is sex stereotyping
  of the most retrograde sort.  Nor could the State show that the undoubted 
  differences between any given man and woman who wish to marry are more
  related to their sex  than to other characteristics and life experiences. 
  In short, the "diversity" argument is based on  illogical conclusions from
  stereotypical imaginings that would be condemned by the very case cited 
  for its support.  See VMI, 518 U.S.  at 533 (justifications for sex-based
  classifications "must not  rely on overbroad generalizations about
  different talents, 

  

  capabilities, or preferences of males and  females.").

       In the second category, the State asserts, under several different
  guises, the public purpose  of maintaining the sex-based classification. 
  First, the State claims an interest in "preserving the  existing marital
  structure."  Second, the State claims an interest in "instructing the young
  of the  value of uniting male and female qualities."  This is mere
  tautology.  The State's objective is to  preserve the status quo, but that
  does not address the question of whether the classification can be 
  justified.  Perpetuating the classification, in and of itself, is not a
  valid purpose for the  classification.  See id. at 545 (rejecting as
  circular governmental justification that sex-based  classification is
  essential to governmental objective of single-sex education).

       Many of the State's remaining justifications, which I place into a
  third category, assume  highly questionable public purposes.  But because
  none of these justifications are even remotely,  much less reasonably,
  related to the challenged classification, I accept, for the sake of
  argument,  the premise that each of them concerns a legitimate state
  interest.

       The State contends, for example, that prohibiting individuals from
  marrying a person of the  same sex promotes the public purpose of
  minimizing custody and visitation disputes arising from  surrogacy
  contracts because the prohibition may deter use of technologically assisted
  reproduction  by same-sex couples.  Further, the State argues that
  increased use of technologically assisted  reproduction "may lead men who
  conceive children by sexual union to perceive themselves as  sperm donors,
  without any responsibility for their offspring."  Both of these reasons
  suffer from the  same constitutional deficiency.  If the state purpose is
  to discourage technologically assisted  reproduction, I agree with the
  majority that the classification is significantly underinclusive.  The 
  State does nothing to discourage technologically assisted reproduction by
  individuals or opposite-sex  couples.  Moreover, opposite-sex couples may
  obtain 

  

  marriage licenses without regard to whether  or not they will use
  technologically assisted reproduction.(FN14) The public purpose provides no 
  rationale for the different treatment.

       The State also asserts that it has an interest in furthering the link
  between procreation and  child rearing "to ensure that couples who engage
  in sexual intercourse accept[] responsibility for the  potential children
  they might create."  But the State cannot explain how the failure of
  opposite-sex  couples to accept responsibility for the children they create
  relates at all to the exclusion of same-sex couples from the benefits of
  marriage.  To the extent that couples, same-sex or opposite-sex,  will fail
  to take responsibility for the children they create, the risk is greater
  where the couples are  not married.  Therefore, denying same-sex couples
  the benefits of marriage on this ground is not  only arbitrary but
  completely at odds with the stated government purpose.

       The State further contends that prohibiting individuals from marrying
  same-sex partners will  deter marriages of convenience entered into solely
  to obtain tax benefits or government assistance.   Two persons of the
  opposite sex are completely free to enter into a marriage of convenience, 
  however, without the State examining their motives.  Indeed, the pool of
  opposite-sex couples who  may choose to enter into such marriages is much
  greater than the pool of same-sex couples.  Once  again, the public purpose
  provides no rationale for treating individuals who choose same-sex 
  partners differently from those who choose opposite-sex partners.

       Although "[a] statute need not regulate the whole of a field to pass
  constitutional muster,"  

  

  Benning v. State, 161 Vt. 472, 486, 641 A.2d 757, 764 (1994), there still
  must be some rational  basis for an underinclusive classification.  Here,
  none of the alleged governmental purposes within  the third category of
  State justifications provides a rational basis for treating similarly
  situated  people differently, or for applying the classification in an
  underinclusive manner.  See Cleburne,  473 U.S.  at 446 (State may not
  impose classification where relationship to asserted goal is so  attenuated
  as to render distinction arbitrary or irrational).  The State's
  justifications are nothing  more than post-hoc rationalizations completely
  unrelated to any rational reason for excluding same-sex couples from
  obtaining the benefits of marriage.

       Finally, the State claims a valid public purpose in adopting a
  classification to align itself  with the other states.  The Vermont
  Constitution is freestanding authority, however, and may  protect rights
  not protected under the federal constitution or other state constitutions. 
  Brigham, 166  Vt. at 257, 268, 692 A.2d  at 391, 397 (recognizing right to
  equal education under Vermont  Constitution, while acknowledging that this
  right is not recognized under federal constitution and is  recognized under
  only some state constitutions).  This Court does not limit the protections
  the  Vermont Constitution confers on Vermonters solely to make Vermont law
  consistent with that of  other states.  See id. at 257, 692 A.2d  at 391
  (decisions in other states are of limited precedential  value because each
  state's constitutional evolution is unique).  Indeed, as the majority
  notes,  Vermont's marriage laws are already distinct in several ways from
  the laws of other states.

       In sum, the State treats similarly situated people -- those who wish
  to marry -- differently,  on the basis of the sex of the person they wish
  to marry.  The State provides no legally valid  rationale for the different
  treatment.  The justifications asserted by the State for the classification
  are  tautological, wholly arbitrary, or based on impermissible assumptions
  about 

  

  the roles of men and  women.  None of the State's justifications meets the
  rational-basis test under the Common Benefits  Clause.  Finding no legally
  valid justification for the sex-based classification, I conclude that the 
  classification is a vestige of the historical unequal marriage relationship
  that more recent legislative  enactments and our own jurisprudence have
  unequivocally rejected.  The protections conferred on  Vermonters by the
  Common Benefits Clause cannot be restricted by the outmoded conception that 
  marriage requires one man and one woman, creating one person -- the
  husband.  As this Court  recently stated, "equal protection of the laws
  cannot be limited by eighteenth-century standards."   See Brigham, 166 Vt.
  at 267, 692 A.2d  at 396.

                                    III.

       This case is undoubtedly one of the most controversial ever to come
  before this Court.   Newspaper, radio and television media have disclosed
  widespread public interest in its outcome, as  well as the full spectrum of
  opinion as to what that outcome should be and what its ramifications  may
  be for our society as a whole.  One line of opinion contends that this is
  an issue that ought to  be decided only by the most broadly democratic of
  our governmental institutions, the Legislature,  and that the small group
  of men and women comprising this Court has no business deciding an  issue
  of such enormous moment.  For better or for worse, however, this is simply
  not so.  This  case came before us because citizens of the state invoked
  their constitutional right to seek redress  through the judicial process of
  a perceived deprivation under state law.  The Vermont Constitution  does
  not permit the courts to decline to adjudicate a matter because its subject
  is controversial, or  because the outcome may be deeply offensive to the
  strongly held beliefs of many of our citizens.   We do not have, as does
  the Supreme Court of the United States, certiorari jurisdiction, which 
  allows that Court, in its sole discretion, to 

  

  decline to hear almost any case.  To the contrary, if a  case has been
  brought before us, and if the established procedures have been followed, as
  they were  here, we must hear and decide it.

       Moreover, we must decide the case on legal grounds.  However much
  history, sociology,  religious belief, personal experience or other
  considerations may inform our individual or collective  deliberations, we
  must decide this case, and all cases, on the basis of our understanding of
  the law,  and the law alone.  This must be the true and constant effort of
  every member of the judiciary.   That effort, needless to say, is not a
  guarantee of infallibility, nor even an assurance of wisdom.  It  is,
  however, the fulfillment of our pledge of office.



						
	_______________________________________
        Associate Justice

-------------------------------------------------------------------------------
                                  Footnotes

FN1.  In the 1999 legislative session, while the instant case was
  pending before this Court, fifty-seven representatives signed H. 479,
  which sought to amend the marriage statutes by providing that  a man shall
  not marry another man, and a woman shall not marry another woman.

FN2.  Although the State's licensing procedures do not signal official
  approval or recognition of  any particular lifestyles or relationships,
  commentators have noted that denying same-sex couples a  marriage license
  is viewed by many as indicating that same-sex relationships are not
  entitled to the  same status as opposite-sex relationships.  See, e.g., C.
  Christensen, If Not Marriage? On Securing  Gay and Lesbian Family Values by
  a "Similacrum of Marriage", 66 Fordham L. Rev. 1699, 1783-84 (1998) (most
  far reaching consequence of legalizing same-sex marriage would be symbolic 
  shedding of sexual outlaw image and civil recognition of shared humanity);
  D. Chambers, What If?  The Legal Consequences of Marriage and the Legal
  Needs of Lesbian and Gay Male Couples, 95  Mich. L. Rev. 447, 450 (1996)
  (allowing same-sex couples to marry would signify  acknowledgement of
  same-sex couples as equal citizens).  This Court has recognized that
  singling  out a particular group for special treatment may have a
  stigmatizing effect more significant than any  economic consequences.  See
  MacCallum v. Seymour's Administrator, 165 Vt. 452, 460, 686 A.2d 935, 939
  (1996) (noting that symbolic and psychological damage resulting from 
  unconstitutional classification depriving adopted children of right to
  inherit from collateral kin may  be more significant than any concern over
  material values).  The United States Supreme Court has  also recognized
  this phenomenon.  See Romer v. Evans, 517 U.S. 620, 634 (1996) (laws
  singling  out gays and lesbians for special treatment "raise the inevitable
  inference that the disadvantage  imposed is born of animosity toward the
  class of persons affected"); Heckler v. Matthews, 465 U.S. 728, 739-40
  (1984) (stigmatizing members of disfavored group as less worthy
  participants in  community "can cause serious noneconomic injuries . . .
  solely because of their membership in a  disfavored group").  Because
  enjoining defendants from denying plaintiffs a marriage license is the 
  most effective and complete way to remedy the constitutional violation we
  have found, it is not  necessary to reach the issue of whether depriving
  plaintiffs of the "status" of being able to obtain  the same
  state-conferred marriage license provided to opposite-sex couples violates
  their civil  rights.

FN3.  Unlike the Vermont Constitution, see Vt. Const. ch. II, § 5
  ("The Legislative, Executive, and  Judiciary departments, shall be separate
  and distinct, so that neither exercises the powers properly  belonging to
  the others."), the United States Constitution does not contain an explicit
  separation-of-powers provision; however, the United States Supreme Court
  has derived a separation-of-powers  requirement from the federal
  constitution's statement of the powers of each of the branches of 
  government.  See, e.g., Bowsher v. Synar, 478 U.S. 714, 721-22 (1986). 
  Because we have relied  upon federal separation-of-powers jurisprudence in
  interpreting Chapter II, Section 5, see Trybulski  v. Bellows Falls
  Hydro-Elec. Corp., 112 Vt. 1, 7, 20 A.2d 117, 120 (1941), I draw upon
  federal  case law for analysis and support in discussing
  separation-of-powers principles.  See In re D.L.,  164 Vt. 223, 228 n.3,
  669 A.2d 1172, 1176 n.3 (1995); see also In re Constitutionality of House 
  Bill 88, 115 Vt. 524, 529, 64 A.2d 169, 172 (1949) (noting that judicial
  power of Vermont  Supreme Court and United States Supreme Court is same).

FN4.  I do not misinterpret the majority's holding.  See ante, at 41. 
  I am aware that the Legislature  is not obligated to give plaintiffs a
  marriage license, or any other remedy for that matter.  It is this  Court,
  not the Legislature, that has the duty to remedy the constitutional
  violation we have found.   We are left to speculate why the majority is not
  enjoining defendants from denying plaintiffs the  regulatory license that
  they seek and that would entitle them to the same benefits and protections
  to  which they are entitled under the majority's holding. 

FN5.  The majority states that my analogy to the circumstances in
  Watson is "flawed" because (1)  we are not confronting the evil of
  institutionalized racism; and (2) our ruling today is "decidedly  new
  doctrine."  Ante, at 42.  The majority's first point implies that our duty
  to remedy  unconstitutional discrimination is somehow limited when that
  discrimination is based on sex or  sexual orientation rather than race.  I
  would not prioritize among types of civil rights violations; our  duty to
  remedy them is the same, once a constitutional violation is found.

       Regarding the second point, the Court in Watson enunciated "the usual
  principle that any  deprivation of constitutional rights calls for prompt
  rectification," stating further that the  unavoidable delay in implementing
  the desegregation of schools ordered in Brown v. Board of  Educ., 347 U.S. 483 (1954) was "a narrowly drawn, and carefully limited, qualification upon
  usual  precepts of constitutional adjudication and is not to be
  unnecessarily expanded in application."  373 U.S.  at 532-33.  The majority
  has not explained why it is diverging from that basic principle in this 
  case.  Further, as both the majority and concurrence acknowledge, see ante,
  at 36-38; ante, at 6  (Dooley, J., concurring), allowing same-sex couples
  to obtain the benefits and protections of  marriage is a logical extension
  of Vermont's legislatively enacted public policy prohibiting 
  discrimination on the basis of sex and sexual orientation, see 1991, No.
  135 (Adj. Sess.),  decriminalizing consensual homosexual conduct between
  adults, see 1977, No. 51, § 22, and  permitting same-sex partners to adopt
  children, see 15A V.S.A. § 1-102(b) (codifying holding in  B.L.V.B., 160
  Vt. at 369, 628 A.2d  at 1272, which allowed same-sex partner of natural
  parent to  adopt parent's child without terminating parent's rights); 15A
  V.S.A. § 1-112 (giving family court  jurisdiction to adjudicate issues
  pertaining to parental rights and responsibilities and child support  with
  respect to adopted children of domestic partners).  Yet, the majority
  suggests that there is  "wisdom" in delaying relief for plaintiffs until
  the Legislature has had a chance to act, ante, at 43,  much as the City of
  Memphis urged the "wisdom of proceeding slowly and gradually in its 
  desegregation efforts."  Watson, 373 U.S.  at 528.

FN6.  This rule requires the exclusion of evidence obtained as the
  result of unconstitutional searches  and seizures.

FN7.  Judicial authority is not, however, the ultimate source of
  constitutional authority.  Within our  constitutional framework, the people
  are the final arbiters of what law governs us; they retain the  power to
  amend our fundamental law.  If the people of Vermont wish to overturn a
  constitutionally  based decision, as happened in Alaska and Hawaii, they
  may do so.  The possibility that they may  do so, however, should not, in
  my view, deprive these plaintiffs of the remedy to which they are 
  entitled.

FN8.  The majority misconstrues my opinion.  See ante, at 27 n.13.  I
  do not reach the issue of  whether heightened scrutiny is appropriate for
  sex-based classifications under the Common Benefits  Clause.  See Ashwander
  v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., 
  concurring) (courts should not formulate rules of constitutional law
  broader than is required by  precise facts to which they are to be
  applied).  I mention federal law and that of other states merely  to
  acknowledge the approach of other jurisdictions on an issue that we have
  not yet decided. I  analyze the sex-based classification under our current
  test for rational-basis review.

FN9.  In its brief, the State notes that if the Court declares that
  heightened scrutiny is applicable, it  might offer additional arguments and
  justifications to demonstrate a compelling State interest in the  marriage
  statutes.  Obviously, in its extensive filings both in the trial court and
  here, which  included a one-hundred-page appellate brief, the State made
  every conceivable argument in support  of the marriage laws, including what
  it perceived to be its best arguments.  For the reasons stated  by the
  majority, see ante, at 4 n.1, 37 n.14, I agree that it would be pointless
  to remand this matter  for further proceedings in the trial court.

FN10.  Under the State's analysis, a statute that required courts to
  give custody of male children  to fathers and female children to mothers
  would not be sex discrimination.  Although such a law  would not treat men
  and women differently, I believe it would discriminate on the basis of sex.  
  Apparently, the Legislature agrees.  By prohibiting consideration of the
  sex of the child or parent in  custody decisions, see 15 V.S.A. § 665(c),
  the Legislature undoubtedly intended to prohibit sex  discrimination, even
  if the rules applied equally to men and women.  See Harris v. Harris, 162
  Vt.  174, 182, 647 A.2d 309, 314 (1994) (stating the family court's custody
  decision would have to be  reversed if it had been based on preference that
  child remain with his father because of his gender).

FN11.  I do not contend, as the majority suggests, that the real
  purpose of the exclusion of same-sex partners from the marriage laws was
  to maintain certain male and female stereotypes.  See ante,  at 28 n.13. 
  As noted above, I agree that the original purpose was very likely not
  intentionally  discriminatory toward same-sex couples.  The question is
  whether the State may maintain a  classification today only by giving
  credence to generally discredited sex-role stereotyping.  I believe  our
  decision in MacCallum says no.  See Sunstein, supra, at 23, 27 (exclusion
  of same-sex couples  from marriage is, in reality, impermissible sex-role
  stereotyping, and therefore, is discrimination on  basis of sex); J.
  Culhane, Uprooting the Arguments Against Same-Sex Marriage, 20 Cardozo 
  L.Rev. 1119, 1171-75 (1999) (accord).

FN12.  See, e.g., United States v. Virginia, 518 U.S. 515, 533 (1996)
  (concluding that sex-based classifications are subject to heightened
  standard of review less rigorous than that imposed for  race or national
  origin classifications); Frontiero v. Richardson, 411 U.S. 677, 684, 686
  (1973)  (plurality opinion) (concluding that sex is suspect classification
  under two-part test inquiring  whether class is defined by immutable
  characteristic and whether there is history of invidious  discrimination
  against class); Sail'er Inn, Inc. v. Kirby, 485 P.2d 529, 540 (Cal. 1971)
  (applying  federal two-part test and concluding that sex is immutable trait
  and women have historically labored  under severe legal and social
  disabilities); Hewitt v. State Accident Ins. Fund Corp., 653 P.2d 970,  977
  (Or. 1982) (applying federal two-part test and concluding that sex is
  immutable personal  characteristic and purposeful unequal treatment of
  women is well known).

FN13.  The question remains why I feel it is necessary to identify the
  class of persons being  discriminated against in this case if the majority
  and I reach the same conclusion.  It is important  because I have concerns
  about the test that the majority devises to review equal-protection 
  challenges under the Common Benefits Clause.  The majority rejects the
  notion that the Court  should accord some measure of heightened scrutiny
  for classifications denying benefits to  historically disadvantaged groups. 
  It argues that the history of the Common Benefits Clause  supports the
  Court's adoption of a uniform standard that is reflective of the broad
  inclusionary  principle at its core.  Therefore, rather than accord any
  particular group heightened scrutiny, it will  balance all the factors in
  the case and reach a just result.  While this notion is superficially
  attractive  in its attempt to achieve fundamental fairness for all
  Vermonters, it is flawed with respect to an  equal-protection analysis. 
  The guarantee of equal protection is about fundamental fairness in a  large
  sense, but its most important purpose is to secure the rights of
  historically disadvantaged  groups whose exclusion from full participation
  in all facets of society has resulted from hatred and  prejudice.

       I share Justice Dooley's concern that the new standard enunciated by
  the majority may not  give sufficient deference to the Legislature's
  judgment in economic and commercial legislation.   See ante, at 15-16
  (Dooley, J., concurring).  It is the Legislature's prerogative to decide
  whether,  for example, to give "optometrists" more protection than
  "opticians."  See Cleburne, 473 U.S.  at  471 (Marshall, J., concurring in
  part and dissenting in part).  Such classifications ought not to  become a
  matter of serious constitutional review, even though optometrists and
  opticians comprise  "a part of the community" and may have vital economic
  interests in the manner in which they are  regulated.  I am certain the
  majority would agree with that proposition and argue that its balancing  of
  all the relevant factors in that kind of a case would not result in
  striking down a classification that  treated those two groups differently. 
  But therein lies my concern with the majority's approach.   Although we
  might agree on the optometrists/opticians classification, a balancing of
  all relevant  factors in all equal-protection cases puts the rule of law at
  "excessive risk."  C. Sunstein,  Foreward: Leaving Things Undecided, 110
  Harvard L. Rev. 4, 78 (1996).  As Professor Sunstein  explains:

     The use of `tiers' has two important goals.  The first is to ensure that 
     courts are most skeptical in cases in which it is highly predictable 
     that illegitimate motives are at work. . . .  The second goal of a 
     tiered system is to discipline judicial discretion while promoting 
     planning and predictability for future cases.  Without tiers, it would 
     be difficult to predict judicial judgments under the Equal Protection 
     Clause, and judges would make decisions based on ad hoc 
     assessments of the equities. The Chancellor's foot[*] is not a 
     promising basis for anti-discrimination law.

  Id.  The majority argues that subjective judgment is required to make
  choices about classes who are  entitled to heightened review and,
  therefore, that a tiered approach is not more precise than the 
  balancing-of-factors approach.  See ante, at 24 n.10.  But, in choosing the
  suspect class, it would  be incumbent upon the Court to articulate its
  rationale, thereby providing predictive value in future  cases of
  discrimination rather than depending on the "perspicacity of judges to see
  it."  Cleburne,  473 U.S.  at 466 (Marshall, J., concurring in part and
  dissenting in part).

  [*The reference to the Chancellor's foot in the Sunstein quote is from John
  Seldon's (1584-1654)  critique of equity, which is relevant here:]

     Equity is a roguish thing.  For Law we have a measure, know what 
     to trust to; Equity is according to the conscience of him that is 
     Chancellor, and as that is larger or narrower, so is Equity.  'Tis all 
     one as if they should make the standard for the measure we call a 
     "foot" a Chancellor's foot; what an uncertain measure would this be! 
      One Chancellor has a long foot, another a short foot, a third an 
     indifferent foot.  'Tis the same thing in the Chancellor's conscience.

  J. Bartlett, Familiar Quotations, 263 (15th ed. 1980).

FN14.  The State does not address the apparent conflict between the
  public purposes it asserts  and the legislative policy of this State. 
  Vermont does not prohibit the donation of sperm or the use  of
  technologically assisted methods of reproduction.  Thus, same-sex partners
  and single individuals  may use technologically assisted reproduction, all
  without the benefit of marriage.  It is impossible  to accept that the
  classification in the marriage statutes serves as a reasonable deterrent to
  such  methods.