Baker v. State

744 A.2d 864, 170 Vt. 194, 1999 Vt. LEXIS 406

• Court: Supreme Court of Vermont
• Decided: December 20, 1999
• Docket: 98-032
• Status: Published

Opinions

Amestoy, CJ.

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.¹

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 (1989)); 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 15 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.² 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 (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. at 449, 450 A.2d at 347 (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.³ See, e.g., Choquette v. Perrault, 158 Vt. 45, 51-52, 569 A.2d 455, 458-59 (1989). At the same time, however, we have recognized that “[although 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, 201-02 (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 795.⁴

Although it is accurate to point out that since Ludlow our decisions have consistently recited the federal rational-basic/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.⁵ In Colchester Fire District 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 200-01, 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 at 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, 204-09 (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. Crowninshield, 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.⁶

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.⁷

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)).⁸

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 unleashed 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: 1777-1821, 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.⁹

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.¹⁰

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 to their relationships with the historically recognized principles that lend them weight or value.” Id. at 769 (emphasis added).¹¹

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. 838, 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.¹²

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.¹³

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 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 Hastings 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 underinclusive. 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 & 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 Hastings 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. § l-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 nontraditional means of conception are infertile married couples, see Shapiro 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 Me. 480, 485 (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 of 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 (1996); J. Robbennolt & M. Johnson, Legal Planning for Unmarried Committed Partners: 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.¹⁴

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 1992, 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, 217-20 n.237 (1992) (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.¹⁵ 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.” 170 Vt. at 242, 744 A.2d at 898 (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 & City Council of Baltimore, 220 F.2d 386 (4th Cir.), 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 “abdication]” of the constitutional duty to decide, and an inexplicable failure to implement “the most straightforward and effective remedy.” 170 Vt. at 242, 247, 744 A.2d at 898, 901. 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” (170 Vt. at 242, 744 A.2d at 898) 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 Cl, 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. 4, 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,”¹⁶ 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.

1 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.2d 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.

2 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.

3 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 City of 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 216-20 (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).

4 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.

5 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. 4, 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), Cleburne, 473 U.S. at 450 (applying rational basis review, Court invalidated zoning discrimination against mentally retarded as based on “irrational prejudice”), and United States Dep’t of Agriculture v. Moreno, 413 U.S. 528, 534 (1973) (invalidating regulation that excluded nonfamily 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 Newer 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.

6 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.

7 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 (framers “drew no distinction between ‘ought’ and ‘shall’ in defining rights and duties”).

8 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 polities, 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.

9 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. 878, 881 (N.H. 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 (N.H. 1938) (noting that under Common Benefits Clause, “[ejquality 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., 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 America Int’l 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. App. Ct. 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. 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. Gates, 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 toned 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.

10 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. 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. 1003 (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 Insurance 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.

11 The concurring and concurring arid 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 170 Vt. at 239, 744 A.2d at 896 (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.

12 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).

13 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 nonintoxieating 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] prohibitfing] 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.” Feeney, 442 U.S. at 272. 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.

14 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.

15 Contrary to the characterization in the concurring and dissenting opinion, we do not “declineQ to provide plaintiffs with a marriage license” because of uncertainty and confusion that change may bring. 170 Vt. at 247-48, 744 A.2d at 902. 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.

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