Civil Unions and Marriage Laws in New England

by Cindy Ellen Hill

More than 1,400 specific federal protections, rights, and responsibilities relate to the status of being married, according to the legal department at GLAD (Gay and Lesbian Advocates and Defenders, headquartered in Boston). These include the ability to share benefits – from Social Security and pension benefits to COBRA retirement benefits and ERISA (employer-provided health insurance); the ability to transfer property to a spouse without triggering the gift tax; and being taxed as a couple under IRS rules.

And there are many more consequences of marriage under state and common law. For example, married couples are treated by law as a single economic unit, permitted to own real property in unique ways, and given priority for making health care and funeral decisions.

Past Restrictions

The history of the right to marry has followed that of other civil rights. Because of restrictions on women’s property rights, most women could not marry without their father’s permission well into the nineteenth century. The legal marriage age has also varied, much like the driving or drinking age. Today, eighteen is the age of majority in most states, so Romeo and Juliet, at fourteen, would still have trouble eloping.

Prohibitions against marrying close kin remain in effect in every state. The prescripted degrees of consanguinity vary, and more than one set of kissing cousins has driven over a state line to wed. Interracial marriage was illegal in many states as recently as 1967, when the U.S. Supreme Court finally struck it down. And nowhere in the United States can you get married if you are already married, regardless of the dictates of your religion. If you emigrate to the U.S. from another country which permits multiple wives, you must legally declare one woman your wife and dump the others at customs.

By this definition of marriage – an adult person wed to one, unrelated adult person – just about everyone in the U.S. today is eligible. As long as the other person is of the opposite gender, of course.

But this restriction is changing, too.

For same-sex couples in this country, the marriage knot

has long resembled the snarl of last year's fishing line. But here in New England, gay and lesbian couples can proudly raise their half-full champagne flutes: there are now civil unions in Vermont and Connecticut, domestic partner legal protections in Maine, and marriage for (some) same-sex couples in Massachusetts.

In 1993, the Hawaii Supreme Court became the first in the nation to rule that refusing to allow marriage between same gender couples is discriminatory. They remanded the case to trial court for further hearings, and in 1996 the trial court determined that there was no legal excuse to justify the discrimination, ordering that the same-gender couples who had brought suit be permitted to marry.

However, the trial court stayed execution of its order, and during appeal the Legislature amended its state Constitution to prohibit same-gender marriage, rendering the Hawaii court cases moot.

Enter the Vermont story.

Civil Unions: Breaking the Mold

While the Hawaii Supreme Court was making groundbreaking national news in 1993, the Vermont Supreme Court was becoming the first in the nation to rule that both adults in a same-gender relationship could be legally recognized as parents. This permitted a woman in a lesbian relationship, for example, to adopt the natural child of her partner.

Four years later, in July 1997, three same-gender couples filed suit seeking legal recognition of marriage. On December 20, 1999, the Baker decision was handed down. The Vermont Supreme Court clearly acknowledged that the word ‘marriage’ means a legal relationship between one man and one woman. The court took great pains to ground the decision in the Common Benefits Clause of the Vermont Constitution as opposed to the U.S. Constitution – partly as a matter of pride in keeping with Vermont's tradition of legal independence, and partly to preclude federal courts from overturning it.

The Vermont Supreme Court retained jurisdiction, permitting the Legislature time to adopt a method of granting same-gender couples all the rights, responsibilities, and benefits of marriage. Finally, in July 2001 the Legislature passed the state’s Civil Union law, and Vermonters collapsed in political exhaustion.

The civil union battle ended on an upbeat note: David Moats, editorial page editor of the Rutland Herald, won the 2001 Pulitzer Prize for journalism in editorial writing for his well-reasoned, level-headed support of civil unions. “As soon as the Baker case came down, I saw it was a huge deal and decided to follow it,” Moats says. “And John Mitchell, our publisher, saw it as part of the Rutland Herald’s traditional role. His father, the paper’s founder, was an outspoken supporter of civil rights and an early critic of McCarthy.”

On tour with his book, Civil Wars: The Battle for Gay Marriage (Harvest Books updated edition January 2005), Moats has encountered curious audiences around the northeast asking how Vermont has fared since the advent of civil unions. “In response to the assertion that same-sex marriage will undermine the institution of marriage generally," he says, "my common response is that the sky hasn’t fallen in Vermont."

What Civil Unions Are Not

While civil unions were intended to provide a set of rights parallel to that of marriage, they are not, in fact, marriages. “The difference between a civil union and a gay marriage is that by providing marriage, you’re not withholding anything, either the term or the final blessing of society,” says Moats. “With marriage, you’re taking the final step towards the recognition of civil rights.”

Beth Robinson, who served as legal counsel on the Baker case, agrees. “There was a notion that civil unions would deliver all the benefits of marriage. What that failed to grasp is that, for a whole lot of people, the legal status of being married is the benefit of marriage. Civil union is a step, but we didn’t grow up hearing songs about civil unions or seeing our grandparents having fifty-year civil union anniversaries. Some people call these benefits intangible, but they are important. We don’t support civil unions other than as an interim status that we’re forced to accept until we can get full marriage and equality for all citizens.”

That's only the intangible downside. There is also the federal Defense of Marriage Statute, which precludes extending those 1,400-plus tangible benefits of marriage to same-sex couples who might manage to marry under state law. But under the umbrella of the magic word ‘marriage’, couples would at least be able to launch an argument, or a lawsuit, against the federal statute.

“The obstacles to a couple with a civil union are higher than those with marriage, because we invented civil union out of whole cloth," Robinson explains. "Right now we aren’t even in a position to have the discussion of whether the federal statute is constitutional when you don’t have a married couple. The idea of civil union validates and buys into the federal discrimination.”

Some of those tangible differences are apparent even here at home. “Vermont has a system now that creates two separate lines at the town clerk's office,” Robinson says. “It sends an unambiguous message of exclusion and separation.”

But would reviving the issue in Vermont in order to fight for same-sex marriage be worth the trouble? Why not just leave the government out of the marriage business all together? “As a lawyer, I think marriage is not a bad thing,” Robinson says. “Especially for economically vulnerable people and especially for women, that the state presents some framework for protection, whether you call it marriage or some other institution, is appropriate. I think without it, women would suffer. I would hate to lose the good things that our marriage laws do. I don’t see how protecting and recognizing the long-term committed relationship can be a bad thing.”

The Massachusetts Supreme Judicial Court agreed. In November 2003, the Goodridge case ruling declared that it was discriminatory to interpret the term “marriage” as applying to just a man and a woman, and the Court ordered that same-sex couples be permitted to marry.

Suddenly Vermont was no longer in the forefront of the gay rights movement. “What’s ironic is that civil unions that were so revolutionary are now seen as the middle-of-the-road compromise, which is what it was in Vermont, too,” notes David Moats.

But Vermont civil unions, product of a long and vocal public process, are still here five years later; the longevity of Massachusetts’ court-imposed same-sex marriage is not so certain.

Vermonters Challenge Massachusetts Governor

The Massachusetts Supreme Judicial Court, like the Vermont Supreme Court, grounded its decision in the Goodridge case upon the state constitution. But where the Vermont Supreme Court clearly declared that "marriage" must be confined to one-man-one-woman, the Massachusetts Court said, “Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return, it imposes weighty legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens.”

With that pronouncement, lines of same-sex couples formed at town clerks’ offices, including out-of-state couples. As the law stood, it was possible for Vermont civil union couples to marry each other in Massachusetts. (However, if you have a Vermont civil union with one person and want to pursue a Massachusetts marriage with someone else, you must first dissolve your Vermont civil union – or you will run afoul of Vermont law.)

But Governor Mitt Romney (a name frequently mentioned as a Republican hopeful for the presidency in 2008) invoked a 1913 Massachusetts statute which says that non-residents may not marry in Massachusetts if their marriage would be void in their home state, directing clerks to deny marriage licenses to same sex couples from other states.

Enter the Vermonters again. Sandi and Bobbi Cote Whitacre of Essex Junction, Vermont, already joined in a Vermont civil union, had been among the first to line up for and receive a Massachusetts marriage license. They now head the list of plaintiff couples in a lawsuit to remove Romney’s prohibition.

“I’m 58 and Bobbi will be 58 in September. We were raised believing that you find the person you want to spend the rest of your life with and you get married,” Sandi says. “When we had our civil union, I thought we had made every connection between us that we could, but both of us were surprised. After our [civil union] ceremony, there was something new between us. When we got married, again there was something new there. We’ve been 38 years together this past February. We met in Alabama in the Women’s Army Corps in 1967. In February 1968 we had a private commitment ceremony. We have so many anniversaries, lots of gifts and lots of celebrations.”

Sandi and Bobbi went to Provincetown, Massachusetts, and applied to the town clerk for a marriage license on May 17, 2004. They learned that couples anxious to marry can have the Massachusetts three-day waiting period waived with a judge's signature. After waiting 37 years, they didn’t want to wait another three days. “We went to Barnstable Courthouse and filled out the application for a waiver," said Sandi. "They took us into the judge’s chambers and he had all these files piled up all over his desk – he’s a divorce judge. He was excited and happy to be dealing with a wedding instead of a divorce. He asked for our assurance that he would never see either of us in his court, and then he signed the waiver.”

At eight o'clock the next morning, the couple were back at the clerk's office. The clerk handed them the license, which they took to a justice of the peace three blocks away. "She married us and signed the license and took it right back to the clerk, and we went shopping. We’d seen these t-shirts that said ‘Just Married’ so we went and bought those and had breakfast,” Sandi recalls.

Back at their hotel, they telephoned the town clerk, having heard rumors that a move was afoot to preclude out-of-state same-sex couples from marrying. He told them that, as soon as the justice of the peace had handed him their license, he had "gotten the call to turn them all in." When the couple received their marriage certificate, the registration number from the State Department of Health was missing.

Sandi discerns a delaying tactic in the Governor’s actions. “The Governor had his press conference and said he was going to use this 1913 law. The history of this law was to prevent interracial marriage; it had been forty years since anyone had used it. When the U.S. Supreme Court struck down the prohibition against interracial marriage, it was assumed that this law was effectively declared illegal. And the Massachusetts Supreme Judicial Court decision that allowed same-sex marriage should have overruled any effect of this law as well. But the delay gave eleven states time to pass constitutional amendments prohibiting same-sex marriage.”

Sandi and Bobbi joined with six other couples in a lawsuit filed by GLAD to lift the governor’s prohibition. GLAD’s legal brief has been filed and the State’s response is due at the end of June. A decision in the case is anticipated by the end of the year. Opposing forces are in play to push a Massachusetts constitutional amendment that would, like that in Hawaii, render the Supreme Judicial Court decision null and void, but recent polls indicate that Massachusetts voters do not favor such a move.

Meanwhile, up the coast of Maine, they’ve been sailing along a different, quieter tack.

Slow and Steady

Folks from Maine aren't really considered tourists when they visit Vermont; their quiet fortitude and downright reasonableness are welcome in the Green Mountains. And so is Maine's slow but steadily progressing plan to provide legal rights and protections for same-sex couples, as well as civil rights protections for LGBT (lesbian, gay, bisexual, or transgendered) persons.

Maine passed a Defense of Marriage Act (DOMA) in 1997 which defined marriage as the legal union of one woman and one man. Then, the Legislature passed a Domestic Partner Registry law in April 2004. The law extends inheritance rights, next-of-kin status, victims compensation, and guardian and conservator rights to domestic partners in Maine through a voluntary statewide Domestic Partnership Registry.

Maine's domestic partner registry is designed to be a step in the direction of legal protections for same gender couples. Other states, including Vermont, have partnership registries that are open to family units, such as parent-adult child or sibling-sibling households, which do not meet the legal requirements for marriage or civil unions. Such arrangements serve primarily as financial and estate planning tools. (Vermont's partnership registry law was passed at the same time as civil unions, but only a handful of families have opted for it. Wills, trusts, and legal partnerships can fulfill most of the same purposes.)

Maine also passed a law preventing discrimination against LGBT persons on March 31, 2005; it goes into effect on June 29, 2005. Equality Maine, an LGBT advocacy group, notes that this makes Maine the sixth state (Vermont among them) to provide some form of legal protection for LGBT relationships. The law, which was originally proposed by Governor John Baldacci, has no direct bearing on the status of couples per se, but adds LGBT to the list of protected civil rights categories, along with age, race, religion, national origin, and sex.

It took thirty years of work by a slowly growing activist contingent to obtain this basic civil rights protection for LGBTs. Pat Peard, executive director of Maine Won’t Discriminate is thrilled – and nervous. “The Christian Civic League is trying to gather 50,000 signatures by July 28th to get a repeal question on the ballot this fall,” she says. “We are hoping they won’t get those signatures, but we are already organizing as if they will. Although this law is not about same-sex marriage, the Christian Civic League is saying that if this law is allowed to stand, next it’ll be marriage. But when we had hearings at the Legislature, I recall ten people telling personal stories of discrimination based on sexual orientation in housing, employment, and education. I think the governor saw it was time for Maine to join every other state in New England – even New Hampshire – in having anti-discrimination protections and basic fairness.”

So while Maine is not focusing on the wedding bells and whistles of marriage or civil unions, they are taking steps, albeit baby ones, to provide some legal protections to all citizens regardless of sexual preference.

Connecticut activists, on the other hand, took only six years to pass civil unions into law. The reality of gay marriage next door in Massachusetts may have sped things along.

Civil Unions by Legislative Fiat

Connecticut Governor M. Jodi Rell issued the following statement following the 80-67 vote in the House of Representatives to amend Substitute Senate Bill 963 to define marriage as the union of a man and a woman. "I am pleased that the House of Representatives passed this amendment and made it clear that while we will recognize and support civil unions, marriage in Connecticut is defined as the union of a man and a woman. Passage of this bill will extend civil rights to all couples, no matter their gender, and send the unmistakable message that discrimination in any form is unacceptable in Connecticut."

April 20 2005, Governor Rell signed civil unions into law effective October 1, 2005. While the Connecticut civil union statute resembles Vermont’s and is intended to give same sex couples many of the same rights as marriage, the Connecticut statute also includes a definition of marriage as between one man and one woman, and makes it legal for public officials like judges to decline to perform civil unions for personal reasons.

Says David Moats, “The Connecticut Legislature passed civil unions without a court to force them to. You might consider that a better victory than the ruling for marriage in Massachusetts. That was quite extraordinary."

Anne Stanback, president of Love Makes a Family/Connecticut since 2000, doesn’t entirely agree. “People keep making a lot of the fact that Connecticut did this without a court order, which is a compliment to the Legislature, but in every civil rights struggle, gains are made both through court and legislature. Courts have often protected minorities.”

While the Connecticut Legislature was not under direct court order as Vermont’s was, they were indeed mindful of litigation considerations. Seven same-sex couples who had applied for Connecticut marriage licenses and been denied filed suit last August in Connecticut Superior Court. While no decision has yet been issued, there are those in the Connecticut Legislature who voted for civil unions solely on the hopes of precluding a court order for marriage.

Still, Connecticut activists look hopeful and remain committed to work – Love Makes a Family shut its doors for only one day after the Legislature passed the civil union law, then it was back to work as usual. “Why withhold the word marriage?” Stanback asks. “I feel very optimistic that we will have marriage in Connecticut in the next several years. It’s important that we see civil unions as a step forward, but that we also continue our push. The state of Vermont has been a trail blazer, and the activists working on it have been role models all across the country, but once Massachusetts made marriage legal, pushing for civil unions was a step backwards.”

Stanback attributes much of the forward progress made in Connecticut to private home conversations with legislators. “For many, it was the first time they’ve knowingly met a gay couple, and because of that we won’t have the kind of backlash they may have in Massachusetts. We have done a good job over four years of making the case that our families are hurt because we don’t have access to rights and protections that only come through recognition by the state. But marriage is about more than rights and protections; it’s about equal treatment under the law. But that seems to be harder to grasp, or isn’t as compelling to the legislators.”

The gay and lesbian community is gearing up for the October civil union start date in different, personal ways. “There are people who have already reserved their reception spaces, and people who are clear that they will never have a civil union because that means second class status. Then you have people who’ve been together for a long period of time who will quietly get civil unioned, then save their big celebration for marriage,” Stanback says. She and her partner of twenty-one years are among those holding out for full-fledged marriage.

In addition to considering what to wear to all those fall civil unions, the staff of three at Love Makes a Family/Connecticut is working daily to ensure that civil unioned couples take their vows with their eyes wide open. “We’ve started scheduling some educational sessions around the state,” Anne says. “This is very serious; these are significant responsibilities. Don’t rush into this just because you’re excited about the government giving us rights. We don’t want to put a damper on it, but we want people to really understand that this is not to be taken lightly.”

Rhode Island, the tiniest, bluest state in the union, has not yet made its move regarding same sex marriage, but it is visibly shifting in that direction.

Cindy Ellen Hill is a freelance writer and recovering attorney living with her family in Middlebury.

On the very day that Massachu-setts same-gender marriages became legal, Rhode Island Attorney General Patrick Lynch sent the Massachusetts governor a letter stating that under present Rhode Island law, the only marriages which would be considered unlawful were those involving bigamy, incest, or fraud; and that Governor Romney should not presume that Rhode Island would invalidate Massachusetts same-sex marriages of Rhode Island couples.

The Rhode Island Legislature then took up a hastily penned same-gender marriage bill. With only 11 senate sponsors, the bill came too late in the legislative year to make it out of committee.

Beginning in mid-May 2005, parallel same-sex bills are now being heard in the Rhode Island House and Senate. The senate bill has over twenty sponsors and only thirty-eight votes are required for its passage. Sponsors note that it took eleven sequential years to get the state’s sexual orientation anti-discrimination law passed, so resolution of the same-sex marriage issue will not likely be

New Hampshire had passed an early Defense of Marriage Act defining marriage as the legal union of one man and one woman. Last year, in light of the Massachusetts' same-sex marriage decision, New Hampshire rushed to pass a statute clearly prohibiting public institutions in the state from recognizing same-sex marriages performed in other states.

Like a hopeful streak of fool's gold sparkling in the granite, one provision of that law created a commission to study and identify all state laws that would be affected were same-sex marriage or civil unions to be allowed at some future date. Former Republican Governor Craig Benson appointed the commission members. The committee is chaired and vice-chaired by conservative Republicans who are known for their activism in anti-gay organizations.

The commission sat dormant for a year, until New Hampshire's newly elected Democratic Governor John Lynch prodded the commission into action. After a pointed confrontation with the commission chair over replacing the former governor's office representative on the commission with a representative of the new administration, the commission had its first bonafide meeting on May 9, 2005. The only subject of substance to be discussed at this informational meeting was a proposal by one of the fifteen members to evaluate a partnership registry, but this was promptly booed by the others.

Off to an extremely rocky start, progress for same-sex couples in New Hampshire will be a tough row to hoe.

Cindy Ellen Hill is a freelance writer and recovering attorney living with her family in Middlebury.