Case: Baker v. Vermont

In 1997, three same-sex couples filed suit against the state of Vermont and their respective town governments after they attempted to obtain marriage licenses and were denied based on the fact that they were not of different sexes than their partners. They alleged violations of the state constitution, ch. 1 art. 7, the Common Benefits clause, which predates by nearly a century but is substantially similar in content to the federal Equal Protection clause, although more expansive. The trial 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.

The Court, 744 A.2d 864, 170 Vt. 194 (1999), held that the primary justification provided by government defendants, that exclusively opposite-sex marriage protected the child-rearing and protection interests of the state, was not justified in practice: many heterosexual couples marry without the intent of raising children, many children are being raised by same-sex couples, and heterosexual union is not the exclusive means of procreation; and prohibitions on same-sex marriage may actually expose children to the risks the state argues opposite-sex marriage exclusivity protects against. The court also held that the legal benefits provided by marriage were of far greater significance than the weak procreative protection argument, and that such an argument could not justify such a significant discrimination. Other potential justifications were undermined by the legislature: same-sex couples can adopt children, artificial reproductive technology is legal, and Vermont idiosyncratically recognizes types of marriage that other states do not.

The Court provided only that "plaintiffs are entitled ... to obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples," but left the implementation of that mandate to the state legislature and expressly did not enjoin the state from prohibiting the grant of a marriage license to any same-sex couple. In 2000, the Legislature complied with the decision by instituting civil unions for same-sex couples. Vermont later legalized same-sex marriage effective September 1, 2009. (Civil unions entered into prior to September 1 continued to be recognized as civil unions unless the couple marries.)