Mission Impossible: On Baker, Equal Benefits, and the Imposition of Stigma

Abstract

In Baker v. State, the Vermont Supreme Court suggested that the Vermont Constitution's Common Benefits Clause required that same-sex couples be afforded the opportunity to receive the benefits and protections of marriage. The court refused to address whether the stigma associated with the creation of a separate status would suffice to invalidate it. This Article suggests that the civil union status created by the Vermont Legislature does not pass state constitutional muster both because of the stigma it imposes and because same-sex couples domiciled in Vermont who celebrate a civil union will likely be accorded fewer benefits and protections by other states than they would have received had they married. This analysis is not dependent upon a finding that the Defense of Marriage Act is unconstitutional, although it would be even more obviously true if, for example, the Act were struck in its entirety or even if the section of DOMA dealing with federal benefits were struck down.

Note: This is a description of the paper and not the actual abstract.