Date: Tue, 12 May 1998 08:13:02 -1000 From: Martin Rice Subject: *QL-ED*: VT 635: BAKER V. VERMONT: NEBRASKA, ET AL., AMICUS BRIEF Aloha kakahiaka kakou. This is keyboarded, please excuse any mistakes, as they are mine. If not so set, you also might want to set this page to "fixed width" or similar setting, thereby making it easier to read. I hope that by publishing this brief, pressure will be applied to the appropriate AGs to disengage from Baker, et al., v. The State of Vermont, et al. Entering an amicus in this case does not act in the best interest of any state, especially those that have written "equal protection based on gender" clauses in their respective Constitutions. Please also note the addition of phone numbers to page "i", hint hint. Also, the symbol(s) represented here--> § <--denotes "section." Some email programs do not translate this symbol readily. IN THE SUPREME COURT OF THE STATE OF VERMONT STAN BAKER and PETER HARRIGAN, ) ) Appellants, ) v. ) ) STATE OF VERMONT ) and TOWN OF SHELBURNE, ) ) Appellees; ) ) BRIEF OF AMICI CURIAE NINA BECK and STACY JOLLES, ) STATES OF NEBRASKA, HAWAII, ) SOUTH CAROLINA, PENNSYLVANIA, Appellants, ) ILLINOIS, ARIZONA, MISSISSIPPI, v. ) ALABAMA, MISSOURI, ) SOUTH DAKOTA and VIRGINIA STATE OF VERMONT ) and CITY OF SOUTH BURLINGTON, ) ) Appellees; ) v. ) ) LOIS FARNHAM nd HOLLY PUTERBAUGH, ) ) Appellants, ) v. ) ) STATE OF VERMONT ) and TOWN OF MILTON, ) ) Appellees. ) ) _____________________________________________________________________________________ SUPREME COURT DOCKET No. 98-32 Appeal from the Chittenden Superior Court Docket No. S1009-97 ______________________________________________________________________________________ Clarke A. Gravel Don Stenberg Gravel & Shea Attorney General of Nebraska 76 St. Paul Street P.O. Box 369 L. Steven Grasz Burlington, VT 05402 Deputy Attorney General (802) 658-0220 2115 State Capitol Lincoln, NE 68509 (402) 471-2682 [page i] LIST OF AMICI STATES Margery S. Bronster James E. Ryan Attorney General Attorney General State of Hawai`i State of Illinois [Complaint Contact: [Complaint Contact: Governor Ben Cayetano 217-782-1090 808-586-0030, You must write: >From Kaua`i: 274-3141, ext 60030 Office of the Attorney General >From Maui: 984-2400, ext 60030 500 S. Second Street >From the Big Island: 974-4000, ext 60030] Springfield, IL 62706 Charles M. Condon Grant Woods Attorney General Attorney General State of South Carolina State of Arizona [Complaint contact: [Complaint contact: Public Information Governor Jane Hall 803-734-4399] 602-542-4331] D. Michael Fisher Mike Moore Attorney General Attorney General Commonwealth of Pennsylvania State of Mississippi [Complaint contact: [Complaint contact: Attorney General's Office Attorney General's Office 717-787-3391] 601-359-3680] William H. Prior, Jr. Jeremiah W. Nixon Attorney General Attorney General State of Alabama State of Missouri [Complaint contact: [Complaint contact: Governor Bob James Governor Mel Carnahan 334-242-7100] 573-751-3222] Mark Barnett Mark L. Earley Attorney General Attorney General State of South Dakota State of Virginia [Complaint contact: None [Complaint contact: 605-773-3215 804-786-2071 Write a letter to the Editor: Must be in writing, The Capital Journal Office of the Attorney General 333 W. Dakota Ave. 900 E. Main Street Pierre, SD 57501] Richmond, VA 23219] [page ii] TABLE OF CONTENTS Page TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iii INTEREST OF THE AMICI . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE QUESTION PRESENTED . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 4-16 A. Vermont Has A Compelling Comity Interest in Maintaining a Definition of Marriage That is Consistent With The Fundamental Concept of Marriage That is Accepted in All Other 49 States. B. Advocates of Same-Sex Marriage Intend to Use Vermont Law and This Case to Force All States to Recognize Same-Sex Marriage. C. The Threat of Possible Recognition of Same-Sex Marriages Has Generated Strong Opposition in Many States and In Congress. D. Vermont's Interest in Interjurisdictional Recognition of Its Marriages Justifies the Rejection of Same-Sex Marriage. E. Vermont Has An Interest in Avoiding a Constitutional Confrontation. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 17 [page iii] TABLE OF AUTHORITIES CASES Adoption of B.L.V.B. AND E.L.V.B., 628 A.2d 1271 (Vt. 1993) . . . . . . . . . . . . . . . . . . . . . . . 6 Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 BMW of North America, Inc. v. Gore, 116 S. Ct. 1589 (1996) . . . . . . . . . . . . . . . . . . . . . . . 10 Baker v. State, Chippenden Super. Crt., No. S1009-97, Dec. 19, 1997, at 7 . . . . . . . . . . . . . . . 2, 3 Beddow v. Beddow, 257 S.W.2d 45 (Ky. App. 1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Boddie v. Connecticut, 401 U.S. 371 (1971) . . . . . . . . . . 5 Brinson v. Brinson, 96 So. 2d 653 (La. 1957) . . . . . . . . . 13 Bucca v. New Jersey, 128 a.2D 506 (N.J. 1957) . . . . . . . . 13 Califano v. Jobst, 434 U.S. 47 (1977) . . . . . . . . . . . . 5 Catalano v. Catalano, 170 A.2D 726 (Conn. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Davis v. Seller, 108 N.E.2d 656 (Mass. 1952) . . . . . . . . . 13 In re estate of Levie, 123 Cal. Rptr. 445 (Cal. App. 1975) . . . . . . . . . . . . . . . . . . . . . . . 13 Farah v. Farah, 429 S.E.2d 626 (Va. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 First National Bank in Grand Fork v. North Dakota's Workmen's Compensation Bureau, 68 N.W.2d 661 (N.D. 1955) . . . . . . . . . . . . . . . . . . . . 13 Griswold v. Connecticut, 381 U.S. 479 (1965) . . . . . . . . . 5 Godt v. Godt, 1990 WL 123047 (Del. Super. Aug. 7, 1990) . . . . . . . . . . . . . . . . . . . . . . . . 13 Hager v. Hager, 3 Va. App. 415, 349 S.E.2d 908 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . 13 [page iv] Laikola v. Engineered Concrete, 277 N.W.2d 653 (Minn. 1979) . . . . . . . . . . . . . . . . . . . . . . . 13 Loving v. Virginia, 388 U.S. 1 (1967) . . . . . . . . . . . . 5 Maynard v. Hill, 125 U.S. 190 (1888) . . . . . . . . . . . . . 5 Metropolitan Life Insurance Co. v. Chase, 294 F.2d 500 (3rd Cir. 1961) . . . . . . . . . . . . . . . . . . . 13 Meyer v. Nebraska, 262 U.S. 390 (1923) . . . . . . . . . . . . 5 Michael H. v. Gerald D., 491 U.S. 110 (1989) . . . . . . . . . 5 Estate of Mortensen, 316 P.2d 1106 (Ariz. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Nelson v. Marshall, 869 S.W.2d 132 (Mo. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Nevada v. Hall, 440 U.S. 410 (1979) . . . . . . . . . . . 7, 12 Osoinach v. Watkins, 180 So. 577 (Ala. 1938) . . . . . . . . . 13 Randall v. Randall, 345 N.W.2d 319 (Neb. 1984) . . . . . . . . 13 Reynolds v. United States, 98 U.S. 145 (1878) . . . . . . . . 4 Rhodes v. McAfee, 224 Tenn. 495, 457 S.W.2d 522 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Seth v. Seth, 694 S.W.2d 459 (Ct. App. Texas 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Skinner v. Oklahoma, 316 U.S. 535 (1942) . . . . . . . . . . . 5 Sosna v. Iowa, 419 U.S. 393 (1975) . . . . . . . . . . . . . . 15 State v. Austin, 234 S.E.2d (1977) . . . . . . . . . . . . . . 13 State v. Bentley, 75 Vt. 163, 53 A. 1068 (1903) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 State v. Richardson, 72 Vt. 49, 47 A. 103 (1897) . . . . . . . 9 Stein v. Stein, 641 S.W.2d 856 (Mo. App. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Titchenal v. Dexter, 693 A.2d 682 (Vt. 1997) . . . . . . . . . 6 [page v] Turner v. Saffley, 482 U.S. 578 (1987) . . . . . . . . . . . . 5 Wheelock v. Wheelock, 103 Vt. 417, 154 A. 665 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 14 Wilkins v. Zelichowski, 26 N.J. 240, 140 A.2d 65 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Zablocki v. Redhail, 434 U.S. 374 (1978) . . . . . . . . . . . 5 STATUTES 1 U.S.C.A. §7 . . . . . . . . . . . . . . . . . . . . . . . . 11 28 U.S.C.A. §1738C (1996) . . . . . . . . . . . . . . . . . . 11 MISCELLANEOUS H.R. Rep. No. 102-664 . . . . . . . . . . . . . . . . . . . . 7 Pub. L. 104-199 . . . . . . . . . . . . . . . . . . . . . . . 11 S i, Sept. 21, 1996, 110 Stat. 229 . . . . . . . . . . . . . . 11 Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2nd Sess., on H.R. 3396, May 15, 1996 at 13 . . . . . . . . . . . 8 Barbara J. Cox, Same Sex Marriages and Choice of Law: If We Marry in Hawai`i are We Still Married When We Return Home?, 1994 Wis. L. Rev. 1033, 1041 n. 23 . . . . . . . . . . . . . . . . . . . 8, 9 Evan Wolfson, Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men and the Intra-Community Debate, 21 N.Y.U. Rev. L. & Soc. Change 567, 612 n.196 (1994-95) . . . . . . . . . . . . 9 Habib A. Balian, Note, Til Death Do Us Part: Grant Full Faith & Credit to Marital Status, 68 S. Cal. L. Rev. 397, 401, 406-408 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Hearings Before the Subcommittee on the Constitution of the Judiciary Committee of the House of Representatives, May 15, 1996, at 158-180 (Prof. Lynn D. Wardle) . . . . . . . . . . . . . . 17 Lennart Palsson, Marriage in Comparative Conflict of Laws: Substantive Conditions 3 (Martinus Nijhoff Publishers 1981) . . . . . . . . . . . . . . 15 [page vi] Lynn D. Wardle, International Marriage and Divorce Regulation and REcognition: A survey, Family Law Quarterly, vol. 29, pp. 497-517 (Fall 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 15 Marrianne Hojgarrd Pedersen, Denmark: Homosexual Marriages and New Rules Regarding Separation and Divorce, 30 J. Fam. L. 289, 290, (1991-92) . . . . . . . . . . . . . . . . . . . . . . . . 15 Robert A. Leflar, American Conflicts Law § 221 (4th ed. 1986) . . . . . . . . . . . . . . . . . . . . . . 17 Vol. III, Private International Law, International Encyclopedia of Comparative Law §9 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Anne M. Burton, Note, Gay Marriage -- A Modern Proposal: Applying Baehr v. Lewin to the International Covenant on Civil & Political Rights, 3 Ind. J. Global Legal Stud. 177. 195 (1995) . . . . . . . . . . . . . . . . . . . . 8 Deborah M. Henson, Will Same Sex Marriages be Recognized in Sister States?: Full Faith and Credit and Due Process Limitation on States Choice of Law Regarding the Status and Incidents of Homosexual Marriage Following Hawai`i's Baehr v. Lewin, 32 U. Louisville J. Fam. L. 551, 584-590 (1993-1994) . . . . . . . . . . . . . . . 7 Nancy Klingeman & Kenneth May, For Better or For Worse, in Sickness and in Health, Until Death Do Us Part: A Look at Same-Sex Marriage in Hawai`i, 16 U. Haw. L. Rev. 447 (1994) . . . . . . . . . . 7 Restatement (Second) Conflict of Laws § 283 . . . . . . . 13, 17 [page 1:] INTEREST OF THE AMICI The amici filing this brief are sister states of Vermont and are co-sovereign members of the United States of America who perceive a substantial threat to the basic principles of cooperative federalism and reciprocal interstate relations if this court rules that the State of Vermont must legalize same-sex marriage. Because of interstate travel, and because of an apparent plan to nationalize the legalization of same-sex marriage by any state, the effects of the decision of this court to legalize same- sex marriage would be felt almost immediately in other states. The legalization of same-sex marriage in Vermont by judicial order would produce confusion, conflict and divisive litigation in Vermont's sister States for years to come. STATEMENT OF THE QUESTION PRESENTED Whether there are legitimate and rational reasons for Vermont to decline to issue marriage licenses to same-sex couples in light of the severe implications for interstate comity, and the consequences that legalization of same-sex marriage in Vermont would hare to disrupt harmonious relations with other States and the Federal Government? STATEMENT OF THE CASE The Plaintiffs in this case are three same-sex couples who sought, and were denied, licenses to marry in Vermont. The filed suit in the Chittenden Superior court asserting various statutory and constitutional claims, and seeking to have the court judicially [page 2:] legalize same-sex marriage by ordering that they be given marriage licenses. In the Superior Court below, Judge Linda Levitt held that "Vermont's marriage laws do not allow civil marriage between partners of the same gender . . . ." Baker v. State, Chittenden Super. Crt., No. S1009-97, Dec. 19, 1997, at 7. Judge Levitt reached this conclusion based on the "plain meaning" of the marriage statutes, taken as a whole, and the "legislative intent behind the statute[s]." Id. at 4, 6. Judge Levitt also cited the traditional understanding of marriage, the dictionary definition of marriage, and the repeated reference to dual genders in other marriage statutes ("bride" and "groom," etc.). Id. at 4-5. The court distinguished a Vermont case permitting adoption by homosexual couples because such adoption was consistent with the underlying legislative intent behind the statutes. Id. at 6. The court further considered and rejected various constitutional challenges to the disallowance of same-sex marriage, including claims based on the "Common Benefits Clause" of the Vermont Constitution, the fundamental right to marry, suspect classification, and gender discrimination. Id. at 7-14. Judge Levitt summarily rejected six of the state's seven asserted justifications for limiting marriage to heterosexual couples, including the state's comity arguments, finding them to be irrational, but ultimately concluded that "limiting the protection of Vermont's marriage laws to the legal union of one man and one [page 3:] woman is reasonably related to the State's interest in furthering the link between procreation and child-rearing." Id. at 17. SUMMARY OF THE ARGUMENT The States submitting this amicus brief agree that Judge Levitt correctly concluded that Vermont is not required to legalize same-sex marriage or give marriage licenses to same-sex couples. However, the opinion of the court below unfortunately overlooked and undervalued the extremely important State interests in interstate comity and in federalism. Those interests provide very strong, legitimate, rational (indeed, compelling) justification for Vermont to decline to legalize same-sex marriage and to refuse to issue licenses to marry to same-sex couples. It is now clear that advocates of same-sex marriage hope to have one State legalize same-sex marriage, and then attempt to use same-sex marriages in that State to force other states to recognize same-sex marriage over the objections of the people of the other State. The threat of forced interstate recognition of same-sex marriage has generated enormous opposition in other States. In the past four years, more than half of the State have enacted laws expressly forbidding and/or denying interjurisdictional recognition to same-sex marriage. Additionally, less than two years ago Congress, by overwhelming vote, enacted the Defense of Marriage Act which denies recognition of same-sex marriages as marriages for purposes of federal law. Nevertheless, advocates of same-sex marriage persist in threatening to force, through various alleged [page 4:] constitutional doctrines, all states to recognize same-sex marriage if any State legalizes same-sex marriages. ARGUMENT This case is not only about how Vermont treats same-sex unions, but it is also about how Vermont treats other States. Any resolution of the same-sex marriage debate in Vermont must take into account the effect that Vermont's action will hae on the 49 other States and the federal union. In many ways, possibly including operation of the Full Faith and Credit clause, Vermont's legalization of same-sex marriage would be manipulated in an effort to override other States', and Congress' recently reaffirmed, historically constant, strong marriage policies. Vermont, like its sister States, has a compelling state interest in not drastically redefining marriage in a way that will undeniably create tremendous confusion, imperil the interjurisdictional recognition of Vermont marriages, and produce divisive, coercive pressures on other States that my severely strain Vermont's relations with its sister States. A. Vermont Has A Compelling Comity Interest in Maintaining a Definition of Marriage That is Consistent With The Fundamental Concept of Marriage That is Accepted in All Other 49 States. Marriage is not just another legal institution, and it is more than a social construct. Rather, the institution of marriage is essential to social order. "Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal." Reynolds v. United States, 98 U.S. 145, 165 [page 5:] (1878). Marriage "creat[es] the most important relation in life, [and has] more to do with the morals and civilization of a people than any other institution. . . ." Maynard v. Hill, 125 U.S. 190, 205-6 (1888). "[M]arriage involves interests of basic importance in our society." Boddie v. Connecticut, 401 U.S. 371, 376 (1971). The constitutionally protected right to marry is not just hte right of emotional bonding or of intimate relations, but the right "to marry, establish a home and bring up children. . . ." Meter v. Nebraska, 262 U.S. 390, 393 (1923). Marriage, procreation and child-rearing are linked. The Court has repeatedly noted that "[m]arriage and procreation are fundamental to the very existence and survival of the race." Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). Likewise, in Loving v. Virginia, the Court linked marriage and procreation for childbearing, noting that "Marriage is one of the basic civil rights of man, fundamental to our very existence and survival." 388 U.S. 1, 12 (1967). This historic understanding of the institution of marriage is protected by the Constitution. See Griswold v. Connecticut, 381 U.S. 479, 486 (1965). See also Turner v. Saffley, 482 U.S. 578, (1987); Zablocki v. Redhail, 434 U.S. 374, 383-386 (1978). "The favored treatment of marriages . . . does not violate the principle of equality embodied in the Due Process Clause of the Fifth Amendment." Califano v. Jobst, 434 U.S. 47, 58 (1977) (emphasis added). Thus, "it is not unconstitutional for the State to give categorical preference" to traditional (male-female) marriages. Michael h. v. Gerald D., 491 U.S. 110, 127 (1989). The [page 6:] institution of marriage itself is uniquely distinct, and the issues in this case transcend and are distinguishable from those involved in other cases in which specific individual rights or particular benefits are involved. See, e.g., Adoption of B.L.V.B. and E.L.V.B., 628 A.2d 1271 (Vt. 1993); Titchenal v. Dexter, 693 A.2d 682 (Vt. 1997); 3 V.S.A. §961(6); §963(1); §1001(a); 8 V.S.A. §1302(2); 9 V.S.A. §2362; §2410; 4502(a). Legalization of same-sex marriage in Vermont would constitute a drastic change in the definition and the very concept of marriage. No state allows same-sex marriage. None ever has. If Vermont were to legalize same-sex marriage, it would created a major deviation from the concept and definition of marriage accepted in all forty-nine of the other states. The disruption, conflicts, and disharmony that would arise between Vermont and the other states in the union are potentially enormous. Marriage and marital status play a role in literally hundreds of government laws and programs in every jurisdiction--both state and federal. (fn#1) Thus, Vermont has a compelling interest in keeping marriage a homogenous, stable and certain institution. In fact, the smooth functioning of interstate relations regarding marriage and family relations is one of the most compelling state interests shared by Vermont and the other forty-nine states. Legalizing same-sex marriage would severely strain, not build, interstate relations. ________________ (fn#1) Congress identified more than 800 federal statutory provisions that incorporate the term "marriage" and over 3000 that use "husband", "wife", "spouse" and the like. H. Rep. 104-664, Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2nd Sess., at 10 (1996). [page 7:] Vermont's compelling interest in cooperative federalism alone is sufficient justification for refusing to legalize same-sex marriage at this time. Nevada v. Hall, 440 U.S. 410, 425-426 (1979). B. Advocates of Same-Sex Marriage Intend to Use Vermont Law and This Case to Force All States to Recognize Same-Sex Marriage. Vermont has an interest in hot having its marriage law be manipulated as part of a plan to force a drastic redefinition of marriage upon the other States. Advocates of same-sex marriage have openly declared their intention to force other states to recognize same-sex marriage if any State legalizes same-sex marriage as a matter of general comity or Full Faith and Credit.(fn#2) As the Congressional Report concerning the Defense of Marriage Act put it: "It is critical to understand the nature of the orchestrated legal assault being waged against traditional heterosexual marriage by gay rights groups and their lawyers."(fn#3) _______________ (fn#2) See Deborah M. Henson, Will Same Sex Marriage be Recognized in Sister States?: Full Faith and Credit and Due Process Limitation on States' Choice of Law Regarding the Status and Incidents of Homosexual Marriage Following Hawai`i's Baehr v. Lewin, 32 U. Louisville J. Fam. L. S51, 584-590 (1993-1994) (hereinafter "Henson"); Evan Wolfson, Director of the Marriage Project (Lambda Legal Defense and Education Fund, Inc.), Winning and Keeping Equal Marriage Rights: What Will Follow Victory in Baehr v. Lewin? A Summary of Legal Issues at 4 (March 20, 1996); Nancy Klingeman & Kenneth May, For Better or Worse, In Sickness and in Health, Until Death Do Us Part: A Look at Same-Sex Marriage in Hawai`i, 16 U. Haw. L. Rev. 447 (1994); Habib A. Balian, Note, Til Death Do Us Part: Granting Full Faith & CRedit to Marital Status, 68 S. Cal. L. REv. 397, 401, 406-408 (1995). (fn#3) H.R. Rep. NO. 102-664, Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2nd Sess., at 2 (1996). [page 8:] The basic argument is that "[i]f [any state] legalizes same-sex marriage, the effects will be felt across the country since other states must recognize gay marriages performed in [a state] under the Full Faith and Credit Clause of the United States Constitution.(fn#4) The written statement of the Lambda Legal Defense and Education Fund, Inc. before Congress declared as follows: Though a landmark case underway in Hawai`i [now also in Vermont], lesbians and gay men are on the verge of winning the freedom to marry, with all its implications. A victory in the case will open the door for same-sex couples around the country to share in the same benefits and responsibilities available to different-sex couples.(fn#5) The State of Vermont should not facilitate such tactics, and avoidance fo this scheme constitutes a compelling state interest for Vermont to decline to legalize same-sex marriage. Vermont should be sensitive to the vulnerability of other States for several reasons. First of all, Vermont itself recognizes the general rule that "a marriage valid where it is celebrated is valid everywhere," Wheelock v. Wheelock 103 Vt. _______________ (fn#4) Anne M. Burton, Note, Gay Marriage--A Modern Proposal: Applying Baehr v. Lewin to the International Covenant on Civil & Political Rights, 3 Ind. J. Global Legal Stud. 177, 195 (1995). But see id. n.22. See also Evan Wolfson, Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men and the Intra-Community Debate, 21 N.Y.U. Rev. L. & Soc. Change 567, 612 n.196 (1994-95) (referring to another forthcoming article arguing that Full Faith and Credit mandates interstate recognition of same-sex marriage); Barbara J. Cox, Same Sex Marriage and Choice of Law: If We Marry in Hawai`i are We Still Married When We Return Home?, 1994 Wis. L. REv. 1033, 1041 n. 23. (fn#5) Defense of Marriage Act, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2nd Sess., on H.R. 3396, May 15, 1996 at 13. (Written statement of Lambda Legal Defense and Education Fund, Inc.) [page 9:] 417, 154 A. 665, 666 (1931) (citing State v. Shattuck, 69 vT. 403, 38 a. 81 (1897); State v. Richardson, 72 Vt. 29, 47 A. 103; State v. Bentley, 75 Vt. 163, 53 A. 1068 (1903). Second, Vermont itse does not have a general marriage recognition statute, only marriage evasion statutes. 15 V.S.A. §§ 5, 6. Advocates of forced interstate recognition of same-sex marriage have specifically outlined arguments and strategy for forcing Vermont to recognize same-sex marriages performed in some other State (such as Hawai`i) if that state were to legalize same-sex marriages. Barbara J. Cox, Same-Sex Marriage and Choice-of-Law: If We Marry in Hawai`i, Are We Still Married When We Return Home? 1994 Wis. L. Rev. 1033, 1074- 76, 1087-1088. Third, Vermont's reverse marriage-evasion statute provides very inadequate protection for other states. On it face, it denies validity to a marriage otherwise valid in Vermont only if the parties come to Vermont to get married from a state where the marriage would not be permitted. 15 V.S.A. §6. However, this statute would not apply to many Vermont marriages. For example, marriages of Vermont residents who move to another state. (It also apparently would not apply to out-of-staters who did not intend to return to the state of their former residence, or to persons from a state that prohibits same-sex marriage but does not make them void. See Id.). At most, the effect of this weak statute, if same-sex marriage were legalized in Vermont, would be to turn Vermont into a "Las Vegas" for same-sex couples from other States who wish to marry. They would move to Vermont for a minimum period [page 10:] of time, marry, and then transport themselves and their new same- sex marriage status to other States. The Supreme Court of the United States has recently underscored the importance of every State avoiding legal policies that interfere with the domestic law of sister States. The Court held in BMW of North America, Inc. v. Gore, 116 S.Ct. 1589 (1996) that it is impermissible for the court of one state to "impose its own policy choice on neighboring States. See Bonaparte v. Tax Court, 104, U.S. 592, 594, 26 L.Ed. 845 (1981) ('No State can legislate except with reference to its own jurisdiction . . . . Each State is independent of all the others in this particular')." Id. at 1596-97. The Court emphasized "the need to respect the interests of the other States," and "these principles of state sovereignty and comity" forbid "infring[ing] on the policy choices of other States," because the Constitution requires each state "[t]o avoid such encroachment." Id. at 1597-98 (emphasis added). These principles apply even more powerfully to marriage policies. This court should not ignore or underestimate the potentially detrimental effect on other states of legalizing same-sex marriage. C. The Threat of Possible Recognition of Same-Sex Marriages Has Generated Strong Opposition in Many States And In Congress. The threat of being forced to recognize same-sex marriage is not a speculative or trifling concern. The other States have reacted with unusual alacrity to the situation. In the past four years, more than half of all States have responded to the possibility of the legalizing of same-sex marriage with the [page 11:] clearest expression that such marriages violate their fundamental public policy and will not be recognized as marriages. This has come mostly in the form of legislation passed by overwhelming margins. Similar bills are now pending in a number of other States. All of these States have acted in direct response to the threat of state autonomy and marriage integrity posed by the possibility of recognition by one or more sister States of same-sex marriage. The crisis reaction in the States in response to the threat of forced same-sex marriage recognition is unprecedented in domestic relations law in this century. Congress also has responded with the clearest expression of its opposition to legalizing same-sex marriage. The Defense of Marriage Act (DoMA) explicitly declares that for purposes of federal law an programs, "marriage" means only heterosexual unions, and that federal full faith and credit principles do not require any state to recognize same-sex marriage. DoMA passed the House of Representatives by an overwhelming vote of 342-67, passed the Senate by a landslide vote of 85-14, and was signed by President Clinton.(fn#6) As the House Judiciary Committee Report notes, Congress was gravely concerned about the impact upon federal programs and upon other state's marriage recognition problems that the "legal assault against traditional heterosexual marriage laws" would cause. H. Rep 104-664, Defense of Marriage Act, 104th Cong., 2nd Sess. at 4 (July 9, 1996). Congress was also deeply _______________ {fn#6) Pub.L. 104-199, S 1, Sept. 21, 1996, 110 Stat. 2419, codified at 1 U.S.C.A. §7; 28 U.S.C.A. §1738C (1996). [page 12:] concerned and motivated to act because the members perceived that some courts were "prepared to foist the newly-coined institution of homosexual 'marriage' upon an unwilling . . . public . . . [with] the possibility that other States could, through the protracted and complex process of litigation, be forced to follow suit."(fn#7) It is contrary to the compelling interests of Vermont and our cooperative system of federalism for this Court to legalize same- sex marriage under these circumstances. Legalizing same-sex marriage would place severe strains upon the system of interstate reciprocal respect that is the core of American federalism. It has the potential of cause serious "Balkanization" in state relationships as States try to protect their own marriage policies from the intrusion of same-sex marriages legalized in Vermont. Nevada v. Hall, 440 U.S. at 424, n.24 (1979). See also Allstate Ins. Co. v. Hague, 449 U.S. 302, 322-323 (1981) (Stevens, J., concurring). Ultimately, that trend will work to the detriment of Vermont. D. Vermont's Interest in Interjurisdictional Recognition of Its Marriages Justifies the Rejection of Same-Sex Marriage. _______________ (fn#7)Id. at 6. "If the court decides to legalize same-sex marriages, the other states may be obligated to do the same. Now, it may be contested and tied up in court for a year or more, but you may well have states and the Federal Government being coerced or forced by court decision to recognize same-sex marriages. This is because they have the practice of recognizing State marriage law. A state court decision in this matter will, at best, create ambiguity, but its effect could be immediate." The Defense of Marriage Act, Hearing before the Committee on the Judiciary, U.S. Senate, 104th Cong., 2nd Sess., on S.1740, July 11, 1996. (Statement of Sen. Nickles) at 10. [page 13:] "[N]o state is bound by comity to give effect in its courts to the marriage laws of another state, repugnant to its own laws and polciy."(fn#8) Thus, many marriages valid in the State where performed have been denied recognition by another State when they are incompatible with a strong public policy of the second state."(fn#9) This exception has been long-recognized in Vermont. To the general rule, however, there are two general exceptions which are well recognized, viz: (1) Marriages which are deemed contrary to the law of nature as generally recognized by Christian civilized states; and (2) marriages which the lawmaking power of the forum has declared shall not be allowed validity on grounds of public policy. The question presented is whether the case comes within the second exception. A state undoubtedly has the power to declare what marriages by its citizens shall not be recognized as valid in its courts, and it also has the power to declare what marriages by it citizens contrary to its established public policy shall have no validity in its _______________ (fn#8) Hager v. Hager, 3 Va. App. 415, 349 S.E.2d 908, 909 (1986); State v. Austin, 234 S.E.2d 657, 663 (W.Va. 1997). See generally Rhodes v. McAfee, 224 Tenn. 495, 457 S.W.2d 522 (1970); Seth v. Seth, 694 S.W.2d 459 (Ct. App. Texas 1985); Godt v. Godt, 1990 WL 123047 (Del. Super. Aug. 7, 1990). (fn#9) See Metropolitan Life Insurance Co. v. Chase, 294 F.2d 500 (3d Cir. 1961); Osoinach v. Watkins, 180 So. 577, 581 (Ala. 1938); Estate of Mortensen, 316 P.2d 1106, 1107 (Ariz. 1957); In re Estate of Levie, 123 Cal. Rptr. 445, 447 (Cal. App. 1975); Catalano v. Catalano, 170 A.2d 726, 728-729 (Conn. 1961); Bedlow v. Bedlow, 257 S.W.2d 45, 47 (Ky. App. 1952); Brinson v. Brinson, 96 So. 2d 653, 660 (La. 1957); Davis v. Seller, 108 N.E.2d 656, 658 (Mass. 1952); Laikola v. Engineered Concrete, 277 N.W.2d 653, 656 (Minn. 1979); Nelson v. Marshall, 869 S.W.2d 132 (Mo. App. 1993); Stein v. Stein, 641 S.W. 2d 856, 858 (Mo. App. 1982); Randall v. Randall, 345 N.W. 2d 319, 322 (Neb. 1984); Bucca v. New Jersey, 128 a.2D 506, 511 (N.J. 1957); First National Bank in Grand Fork v. North Dakota's Workman's Compensation Bureau, 68 N.W. 2D 661 (N.D. 1955); Rhodes v. McAfee, 457 S.W.2d 522, 524 (Tenn. 1970); Seth v. Seth, 694 S.W. 2d 459 (Tex. Ct. App. 1985); Farah v. Farah, 429 S.E.2d 626, 334- 335 (Va. App. 1993). Wilkins v. Zelichowski, 26 N.J. 370. 140 A.2d 65 (1958); See generally Restatement (Second) Conflict of Laws § 283, Reporter's Note, comments j-k. [page 14:] courts, though they be celebrated in other states under whose laws they would ordinarily be valid. Wheelock, 154 A. at 666. If Vermont legalizes same-sex marriage, it is certain -- in light of the statutes enacted in more than half of the States in the past three years alone -- that most States will refuse to recognize those marriages.(fn#10) Thus, the persons who enter those marriages would find that the legal interests Vermont promised them by conferring the status of marriage would be denied in most other States. Confusion and litigation would result as same-sex couples' marriage rights, privileges, benefits and interests in insurance, property, social welfare programs, tax, cohabitation, health benefits, succession, inheritance, etc., would be rejected from state to state. The rights of children of former and subsequent marriages, later spouses, prior spouses, and other family members would be confused and their interest jeopardized. International as well as interstate nonrecognition is certain. No nation in the world recognizes same-sex marriage. Since 1989, five Scandinavian countries have enacted laws that create another relationship in law known as same-sex "domestic partnership."(fn#11) Each of those nations, however, very deliberately chose not to extend the status of marriage of same-sex unions, but decided to create an altogether different legal relationship for same-sex _______________ (fn#10) As discussed, supra at 9-12 and 18, the constitutionality of these statutes is certain to be challenged if Vermont legalizes same-sex marriage. (fn#11) The countries are Denmark, Norway, Sweden, Iceland and the Netherlands. [page 15:] unions. Even those nations do not expect even domestic partnerships to be recognized abroad.(fn#12) Same-sex marriage would be found incompatible with public policy in most of the nations of the world.(fn#13) Marriages that "are incompatible with the public policy" of a country will not be recognized in that country, even if the marriage is deemed valid under the law of the state where celebrated or by the law of the parties' nationality or domicile.(fn#14) Thus, parties to Vermont same-sex marriages would expect, but be denied, rights based upon marital status in foreign nations, including property, succession, inheritance, insurance, employment benefits, pensions, etc., in other nations. Other Vermont marriages also would be viewed with suspicion as well, resulting in disadvantages for many Vermont citizens seeking benefits in other countries. Vermont's compelling interest in "minimizing the susceptibility of its own" marriages to nonrecognition in other states provides ample justification for refusing to legalize same- sex marriages. Sosna v. Iowa, 419 U.S. 393, 407 (1975) (recognizing that Iowa has an interest in having its marriages _______________ (fn#12) Marrianne Hojgarrd Federsen, Denmark: Homosexual Marriages and New Rules Regarding Separation and Divorce, 30 J. Fam. L. 289, 290 (1991-1992). (fn#13) Lynn D. Wardle, International Marriage and Divorce Regulation and Recognition: A Survey, Family Law Quarterly, vol. 29, pp. 497- 517 (Fall 1995). (fn#14) See Lennart Palsson, Marriage in Comparative Conflict of Laws: Substantive Conditions 3 (Martinus Nijhoff Publishers 1981); see also Lennart Palsson, Chapter 16, Marriage and Divorce, in Vol. III, Private International Law, INternational Encyclopedia of Comparative Law 59 (1978). [page 16:] recognized in other States). That compelling interest will be jeopardized if Vermont legalizes same-sex marriage. E. Vermont Has An Interest In Avoiding a Constitutional Confrontation Opponents of the Defense of Marriage Act argue that it is unconstitutional.(fn#15) They and advocates of same-sex marriage argue that under the Full Faith and Credit Clause of the Constitution, art. IV, sec. 1, all states are obligatred to give "full faith and credit" to public acts and records of sister states, including marriages.(fn#16) On the other side, opponents of same-sex marriage an supporters of DoMA argue that the Supreme Court of the United States has never held that marriages must be given full faith and credit, but traditionally States have been permitted to decline to recognize marriages from other states that violate strong local _______________ (fn#15) See, e.g. Nation in Brief, Mink Wins Primary Despite Controversy, L.A. Times, Sept. 23, 1996 at A13 ("Mink said she voted against the federal Defense of Marriage Act because it is unconstitutional."); Melissa Healy, Senate OKs Bill Against Same-Sex Marriages Legislation, L.A. Times, Sept. 11, 1996, at A1 (Sen. Feinstein claims the DoMA is unconstitutional), Shirley Leung, In Boston community responds with anger, Boston Globe, Sept. 11, 1996, at A10 (Massachusetts gay organization argues DoMA is unconstitutional); David Willman, Clinton Signs Marriage Act, Lauds GOP on Health Bill, L.A. Times, Sept. 22, 1996 at A22 ("'The dirty little secret of this bill is that the president and most members of Congress know it's wrong and unconstitutional,' said Matt Coles, director of the American Civil Liberties Union's Lesbian and Gay Rights Project."). (fn#16) See Hearing Before the Subcom. on the Constitution of the Committee on the Judiciary, U.S. House of Representatives, 104 Cong., 2d Sess., on H.R. 3396, May 15, 1996 (Serial No. 69) at 202 (Rabbi David Sapperstein); Hearing Before the Committee on the Judiciary, United States Senate, 104 Cong., 2d Sess., on S. 1740, July 11, 1996 (S. Hrg. 104-553) at 42-47 (Prof. Cass R. Sunstein). [page 17:] public policy,(fn#17) and that DoMA is constitutional under the last sentence in the Full Faith and Credit clause which specifically provides that "Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be provided, and the Effect thereof."(fn#18) The point is not which position will ultimately be proven correct. Rather, the point is that a serious constitutional confrontation involving states, Congress (which overwhelmingly passed the Defense of Marriage Act) and the American judiciary is inevitable if Vermont legalizes same-sex marriage. In the confrontation, the judiciary will be asked to force states to recognize same-sex marriage over their own objections, and over the emphatic opposition of Congress. The only way to win that kind of confrontation is to avoid it. CONCLUSION Legalizing same-sex marriage would be extremely divisive, weaken the United States as a national union of states, provoke a constitutional confrontation, impair interjurisdictional recognition of marriages in Vermont as well as related legal benefits, and strain Vermont's relations with the other forty-nine States and the federal government. Avoidance of such consequences _______________ (fn#17) See generally, Restatement (Second) Conflict of Laws § 283(2) (1981); Robert A. Leflar, American Conflicts Law § 221 (4th ed. 1986); 1 Lynn D. Wardle, Christopher L. Blakesley, & Jackqueline Y. Parker, Contemporary Family Laws § 2:03 (1988). (fn#18) Hearings Before the Subcommittee on the Constitution of the Judiciary Committee of the House of Representatives, May 15, 1996, at 158-180 (Prof. Lynn D. Wardle); Rep. Tom Campbell, Perspective on Same-Sex Marriages, L.A. Times, July 12, 1996 at B9. [page 18:] is a compelling reason why Vermont is justified in not legalizing same-sex marriage. Respectfully submitted this 30th day of April, 1998. Attorneys for the Amici Curiae /s/Clarke A. Gravel Gravel & Shea 76 St. Paul Street P.O. Box 369 Burlington, VT 05402 (802) 658-0220 DON STENBERG, #14023 Attorney General L. Steven Grasz, #19050 Deputy Attorney General 2115 State Capitol Lincoln, NE 68509 (402) 471-2682 Counsel for Amici Curiae States. [page 19:] CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing Brief of Amici Curiae has been served by placing a copy of the same in the United States Mail, first class postage prepaid, addressed to the following on this 30th day of April, 1998. Susan M. Murray, Esq. Langrock, Sperry & Wool P.O. Drawer 351 Middlebury, VT 05753 Attorneys for Appellants Eve. R. Jacobs-Carnahan, Esq. Office of the Attorney General 109 State Street Montpelier, VT 05609-1001 Attorneys for State of Vermont Timothy Eustace, Esq. Stitzel, Page & Fletcher 171 Battery Street P.O. Box 1507 Burlington, VT 05402-1507 Attorneys for Town of Shelburne Attorneys for City of So. Burlington Gregg H. Wilson, Esq., Kolvoord, Overton & Wilson 3 Main St. Essex Junction, VT 05454-3107 Attorneys for Town of Milton /s/Clarke A. Gravel Gravel & Shea 76 St. Paul Street P.O. Box 369 Burlington, VT 05402 Local Counsel