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(1) assistance under any State program funded under

part A of title IV of the Social Security Act, or (2) benefits

under the food stamp program. . .or any State program

carried out under the Food Stamp Act of 1977.

See also

CONTRACT WITH AMERICA

, 1994.

Source:

Congressional Record. 104th Cong., 2d sess., 1996. Vol. 142.

Proposition 215, 1996

A California state proposition passed by a statewide vote on

November 5, 1996, that legalized the prescription of mari-

juana for medicinal purposes. The law exempts from criminal

laws patients and defined caregivers who possess or cultivate

marijuana for medical treatment recommended by a physician

and guarantees that those physicians shall not be punished or

denied any right or privilege. Prior to the November vote,

opponents of the hotly debated Proposition 215 had argued

that it would create legal loopholes that drug dealers and cul-

tivators would use to protect themselves from criminal prose-

cution. Detractors also stressed that marijuana had never been

approved by the Federal Drug Administration (there would

thus be no regulation of the substance or its quality), and,

moreover, that there was no undisputed clinical proof of mar-

ijuana’s medicinal value. Supporters of the proposition

emphasized the advantages of marijuana, pointing out that it

had indeed been shown to be effective in treating side effects

of chemotherapy such as nausea; in lowering internal eye

pressure associated with glaucoma, thus slowing the onset of

blindness; in reducing the prolonged suffering and increasing

the appetites of AIDS patients; and in alleviating muscle spas-

ticity and chronic pain due to multiple sclerosis, epilepsy, and

spinal cord injuries. The proposition, passed with the support

of 55.6 percent of the Californians voting in the November

election, contradicted the definition of marijuana in the Con-

trolled Substance Act of 1970. In that act, which established

the legal foundation of a federal strategy aimed at reducing the

consumption of illicit drugs, marijuana was defined as a

Schedule I drug, i.e., with no known medical use. Proposition

215, by challenging such a definition, complemented recent

rulings in state supreme courts in Washington, Illinois, and

Michigan that found marijuana penalties to be unconstitu-

tional due to the incorrect identification of the substance as a

Schedule I drug.

The act has been challenged on both sides, both by the

federal government in its attempts to enforce the Controlled

Substances Act and by civil disobedience of local California

clinics and officials claiming that the California law takes

precedence. The Supreme Court upheld the federal govern-

ment unanimously in May 2001, in

United States v. Oakland

Cannabis Buyers Cooperative

(121 S. Cr. 1711), by conclud-

ing that the Oakland Cannabis Buyers’ Cooperative and simi-

lar groups cannot legally distribute marijuana, even if they

claim that recipients have medical need for it. The most fla-

grant example of civil disobedience took place September 17,

2002, when members from a clinic raided by the Drug

Enforcement Agency handed out prescription marijuana on

the steps of the Santa Cruz city hall with the blessing of the

city council.

________________________

_______________________

Initiative Measure to be Submitted Directly to the

Voters Medical Use of Marijuana. Initiative Statute.

Provides that patients or defined caregivers, who possess

or cultivate marijuana for medical treatment recom-

mended by a physician, are exempt from general provi-

sions of law which otherwise prohibit possession or

cultivation of marijuana. Provides physicians shall not be

punished or denied any right or privilege for recommend-

ing marijuana to a patient for medical purposes. Declares

that the measure not be construed to supersede prohibi-

tions of conduct endangering others nor to condone diver-

sion of marijuana for nonmedical purposes. Contains

severability clause. Summary of estimate by Legislative

Analyst and Director of Finance of fiscal impact on state

and local government: Because this measure restricts the

use of marijuana to only those persons for whom it is pre-

scribed by a licensed physician, it would probably have no

significant state or local fiscal impact.

To The Honorable Secretary Of State Of California:

We, the undersigned, registered, qualified voters of Cali-

fornia, residents of __________________________County

(or City and County), hereby propose an addition to the

Health and Safety Code, relating to the compassionate use

of marijuana, and petition the Secretary of State to submit

the same to the voters of California for their adoption or

rejection at the next succeeding general election or at any

special statewide election held prior to that general elec-

tion or otherwise provided by law. The proposed addition

to the Health and Safety code shall read as follows:

Section 1. Section 11362.5 is added to the Health and

Safety Code, to read:

11362.5. (a) This section shall be known and may be

cited as the Compassionate Use Act of 1996.

(b) (l) The people of the State of California hereby

find and declare that the purposes of the Compassionate

Use Act of 1996 are as follows:

(A) To ensure that seriously ill Californians have the

right to obtain and use marijuana for medical purposes

where that medical use is deemed appropriate and has

been recommended by a physician who has determined

that the person’s health would benefit from the use of mar-

ijuana in the treatment of cancer, anorexia, AIDS, chronic

1772 ERA 10: Contemporary United States

pain, spasticity, glaucoma, arthritis, migraine, or any other

illness for which marijuana provides relief.

(B) To ensure that patients and their primary care-

givers who obtain and use marijuana for medical purposes

upon the recommendation of a physician are not subject to

criminal prosecution or sanction.

to implement a plan to provide for the safe and affordable

distribution of marijuana to all patients in medical need of

marijuana.

(2) Nothing in this act shall be construed to supersede

legislation prohibiting persons from engaging in conduct

that endangers others, nor to condone the diversion of

marijuana for nonmedical purposes.

physician in this state shall be punished, or denied any

right or privilege, for having recommended marijuana to a

patient for medical purposes.

(d) Section 11357, relating to the possession of mari-

juana, and Section 11358, relating to the cultivation of

marijuana, shall not apply to a patient, or to a patient’s

primary caregiver, who possesses or cultivates marijuana

for the personal medical purposes of the patient upon

the written or oral recommendation or approval of a

physician.

(e) For the purposes of this section, “primary care-

giver” means the individual designated by the person

exempted under this act who has consistently assumed

responsibility for the housing, health, or safety of that

person.

Sec. 2. If any provision of this measure or the applica-

tion thereof to any person or circumstance is held invalid,

that invalidity shall not affect other provisions or applica-

tions of the measure which can be given effect without the

invalid provision or application, and to this end the provi-

sions of this measure are severable.

Source:

Landmark Documents in American History, Facts On File, Inc.

United States v. Virginia et al., 1996

U.S. Supreme Court decision ordering the Virginia Military

Institute (VMI), a state-funded, all-male military academy, to

admit women. In 1995 a federal appeals court ruled that VMI’s

exclusion of female applicants violated the Constitution by

denying women equal protection under the Fourteenth

Amendment. At the same time, the appellate court held that

Virginia had adequately remedied that violation by establish-

ing a women’s leadership program at the all-female Mary

Baldwin College. On challenge, the Supreme Court consid-

ered both aspects of the lower court’s decision. On June 26,

1996, the high court ruled 7-1 that VMI’s admissions policy

was unconstitutional. The justices found that a state-funded

institution that treated the genders differently violated the

Fourteenth Amendment’s equal protection clause. Applying a

“skeptical scrutiny” standard in evaluating Virginia’s sponsor-

ship of VMI, the majority concluded that the state had shown

no compelling justification for offering different educational

opportunities to men and women. The Court also deemed the

separate state-funded women’s leadership program at Mary

Baldwin an inadequate alternative to females seeking admis-

sion to VMI. The decision in United States v. Virginia et al.

would force state-sponsored military academies such as VMI

and the Citadel in South Carolina to go private if they wanted

to remain all-male.

________________________

_______________________

Note: Where it is feasible, a syllabus (headnote) will be released,

as is being done in connection with this case, at the time the opin-

ion is issued. The syllabus constitutes no part of the opinion of the

Court but has been prepared by the Reporter of Decisions for the

convenience of the reader. See United States v. Detroit Lumber

Co., 200 U.S. 321

, 337.

Virginia Military Institute (VMI) is the sole single sex

school among Virginia’s public institutions of higher learn-

ing. VMI’s distinctive mission is to produce “citizen sol-

diers,” men prepared for leadership in civilian life and in

military service. Using an “adversative method” of training

not available elsewhere in Virginia, VMI endeavors to

instill physical and mental discipline in its cadets and

impart to them a strong moral code. Reflecting the high

value alumni place on their VMI training, VMI has the

largest per student endowment of all undergraduate insti-

tutions in the Nation. The United States sued Virginia and

VMI, alleging that VMI’s exclusively male admission policy

violated the Fourteenth Amendment’s Equal Protection

Clause. The District Court ruled in VMI’s favor. The

Fourth Circuit reversed and ordered Virginia to remedy

the constitutional violation. In response, Virginia proposed

a parallel program for women: Virginia Women’s Institute

for Leadership (VWIL), located at Mary Baldwin College,

a private liberal arts school for women. The District Court

found that Virginia’s proposal satisfied the Constitution’s

equal protection requirement, and the Fourth Circuit

affirmed. The appeals court deferentially reviewed Vir-

ginia’s plan and determined that provision of single gender

educational options was a legitimate objective. Mainte-

nance of single sex programs, the court concluded, was

essential to that objective. The court recognized, however,

that its analysis risked bypassing equal protection scrutiny,

so it fashioned an additional test, asking whether VMI and

VWIL students would receive “substantively comparable”

benefits. Although the Court of Appeals acknowledged

Social Developments 1773

that the VWIL degree lacked the historical benefit and

prestige of a VMI degree, the court nevertheless found the

educational opportunities at the two schools sufficiently

comparable.

Held:

1. Parties who seek to defend gender based govern-

ment action must demonstrate an “exceedingly persuasive

justification” for that action. E.g., Mississippi Univ. for

Women v. Hogan, 458 U.S. 718, 724. Neither federal nor

state government acts compatibly with equal protection

when a law or official policy denies to women, simply

because they are women, full citizenship stature—equal

opportunity to aspire, achieve, participate in and con-

tribute to society based on their individual talents and

capacities. To meet the burden of justification, a State

must show “at least that the [challenged] classification

serves ‘important governmental objectives and that the

discriminatory means employed’ are ‘substantially related

to the achievement of those objectives.’” Ibid., quoting

Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150.

The justification must be genuine, not hypothesized or

invented post hoc in response to litigation. And it must not

rely on overbroad generalizations about the different tal-

ents, capacities, or preferences of males and females. See,

e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 648. The

heightened review standard applicable to sex based classi-

fications does not make sex a proscribed classification, but

it does mean that categorization by sex may not be used to

create or perpetuate the legal, social, and economic inferi-

ority of women. Pp. 13–16.

2. Virginia’s categorical exclusion of women from the

educational opportunities VMI provides denies equal pro-

tection to women. Pp. 17–29.

(a) Virginia contends that single sex education yields

important educational benefits and that provision of an

option for such education fosters diversity in educational

approaches. Benign justifications proffered in defense of

categorical exclusions, however, must describe actual state

purposes, not rationalizations for actions in fact differently

grounded. Virginia has not shown that VMI was estab-

lished, or has been maintained, with a view to diversifying,

by its categorical exclusion of women, educational oppor-

tunities within the State. A purpose genuinely to advance

an array of educational options is not served by VMI’s his-

toric and constant plan to afford a unique educational ben-

efit only to males. However well this plan serves Virginia’s

sons, it makes no provision whatever for her daughters. Pp.

17–22.

(b) Virginia also argues that VMI’s adversative

method of training provides educational benefits that can-

not be made available, unmodified, to women, and

that alterations to accommodate women would necessar-

ily be so drastic as to destroy VMI’s program. It is uncon-

tested that women’s admission to VMI would require

accommodations, primarily in arranging housing assign-

ments and physical training programs for female cadets. It

is also undisputed, however, that neither the goal of pro-

ducing citizen soldiers, VMI’s raison d’être, nor VMI’s

implementing methodology is inherently unsuitable to

women. The District Court made “findings” on “gender

based developmental differences” that restate the opin-

ions of Virginia’s expert witnesses about typically male

or typically female “tendencies.” Courts, however, must

take “a hard look” at generalizations or tendencies of the

kind Virginia pressed, for state actors controlling gates to

opportunity have no warrant to exclude qualified individ-

uals based on “fixed notions concerning the roles and abil-

ities of males and females.” Mississippi Univ. for Women,

458 U. S., at 725. The notion that admission of women

would downgrade VMI’s stature, destroy the adversative

system and, with it, even the school, is a judgment hardly

proved, a prediction hardly different from other “self ful-

filling prophec[ies], see id., at 730, once routinely used to

deny rights or opportunities. Women’s successful entry

into the federal military academies, and their participation

in the Nation’s military forces, indicate that Virginia’s fears

for VMI’s future may not be solidly grounded. The State’s

justification for excluding all women from “citizen soldier”

training for which some are qualified, in any event, does

not rank as “exceedingly persuasive.” Pp. 22–29.

3. The remedy proffered by Virginia—maintain VMI

as a male only college and create VWIL as a separate pro-

gram for women—does not cure the constitutional viola-

tion. Pp. 29–41.

(a) A remedial decree must closely fit the constitu-

tional violation; it must be shaped to place persons uncon-

stitutionally denied an opportunity or advantage in the

position they would have occupied in the absence of dis-

crimination. See Milliken v. Bradley, 433 U.S. 267, 280.

The constitutional violation in this case is the categorical

exclusion of women, in disregard of their individual merit,

from an extraordinary educational opportunity afforded

men. Virginia chose to leave untouched VMI’s exclusionary

policy, and proposed for women only a separate program,

different in kind from VMI and unequal in tangible and

intangible facilities. VWIL affords women no opportunity

to experience the rigorous military training for which VMI

is famed. Kept away from the pressures, hazards, and psy-

chological bonding characteristic of VMI’s adversative

training, VWIL students will not know the feeling of

tremendous accomplishment commonly experienced by

VMI’s successful cadets. Virginia maintains that method-

ological differences are justified by the important differ-

ences between men and women in learning and

developmental needs, but generalizations about “the way

women are,” estimates of what is appropriate for most

1774 ERA 10: Contemporary United States

women, no longer justify denying opportunity to women

whose talent and capacity place them outside the average

description. In myriad respects other than military train-

ing, VWIL does not qualify as VMI’s equal. The VWIL

program is a pale shadow of VMI in terms of the range of

curricular choices and faculty stature, funding, prestige,

alumni support and influence. Virginia has not shown sub-

stantial equality in the separate educational opportunities

the State supports at VWIL and VMI. Cf. Sweatt v.

Painter, 339 U.S. 629. Pp. 30–37

Source:

Cornell Law School. The Legal Information Institute. Available

on-line. URL: http://supct.lawcornell.edu/supct/html/94-

1941.ZS.html. Accessed November 2003.

Bill Clinton, Remarks in

Apology for Tuskegee Study, 1997

Formal apology made by President Bill Clinton for an infa-

mous medical experiment conducted by the federal govern-

ment in Tuskegee, Alabama, in which some 400 African-

American male syphilis sufferers were denied treatment for 40

years. From 1932 to 1972, the U.S. Public Health Service

observed those men in Macon County, Alabama, as part of a

study to determine how the disease spread and how it killed.

Those afflicted with syphilis, which in its advanced stages

causes grave mental deterioration and can lead to death, were

not informed that they had the disease. Nor did they receive

any therapeutic care—not even after penicillin in 1947 be-

came the standard and highly effective treatment for the sex-

ually transmitted disease. Public disclosure of the Tuskegee

Study in 1972 triggered widespread outrage in the black com-

munity and brought demands for just redress. Since 1973 the

federal government has paid approximately $10 million in

restitution to the men and their heirs. On May 16, 1997, Pres-

ident Clinton hosted survivors of the Tuskegee experiment

and their families at a White House ceremony in which he

belatedly apologized on behalf of the American people for

the shameful wrong perpetrated against them by the U.S. gov-

ernment.

________________________

_______________________

The President: Ladies and gentlemen, on Sunday, Mr.

Shaw will celebrate his 95th birthday. (Applause.) I would

like to recognize the other survivors who are here today

and their families: Mr. Charlie Pollard is here. (Applause.)

Mr. Carter Howard. (Applause.) Mr. Fred Simmons.

(Applause.) Mr. Simmons just took his first airplane ride,

and he reckons he’s about 110 years old, so I think it’s time

for him to take a chance or two. (Laughter.) I’m glad he

did. And Mr. Frederick Moss, thank you, sir. (Applause.)

I would also like to ask three family representatives

who are here — Sam Doner is represented by his daugh-

ter, Gwendolyn Cox. Thank you, Gwendolyn. (Applause.)

Ernest Hendon, who is watching in Tuskegee, is repre-

sented by his brother, North Hendon. Thank you, sir, for

being here. (Applause.) And George Key is represented by

his grandson, Christopher Monroe. Thank you, Chris.

(Applause.)

I also acknowledge the families, community leaders,

teachers and students watching today by satellite from

Tuskegee. The White House is the people’s house; we are

glad to have all of you here today. I thank Dr. David

Satcher for his role in this. I thank Congresswoman Waters

and Congressman Hilliard, Congressman Stokes, the

entire Congressional Black Caucus. Dr. Satcher, members

of the Cabinet who are here, Secretary Herman, Secretary

Slater, members of the Cabinet who are here, Secretary

Herman, Secretary Slater. A great friend of freedom, Fred

Gray, thank you for fighting this long battle all these long

years.

The eight men who are survivors of the syphilis study

at Tuskegee are a living link to a time not so very long ago

that many Americans would prefer not to remember, but

we dare not forget. It was a time when our nation failed to

live up to its ideals, when our nation broke the trust with

our people that is the very foundation of our democracy. It

is not only in remembering that shameful past that we can

make amends and repair our nation, but it is in remem-

bering that past that we can build a better present and a

better future. And without remembering it, we cannot

make amends and we cannot go forward.

So today America does remember the hundreds of

men used in research without their knowledge and con-

sent. We remember them and their family members. Men

who were poor and African American, without resources

and with few alternatives, they believed they had found

hope when they were offered free medical care by the

United States Public Health Service. They were betrayed.

Medical people are supposed to help when we need

care, but even once a cure was discovered, they were

denied help, and they were lied to by their government.

Our government is supposed to protect the rights of its cit-

izens; their rights were trampled upon. Forty years, hun-

dreds of men betrayed, along with their wives and

children, along with the community in Macon County,

Alabama, the City of Tuskegee, the fine university there,

and the larger African American community.

The United States government did something that was

wrong—deeply, profoundly, morally wrong. It was an out-

rage to our commitment to integrity and equality for all

our citizens.

To the survivors, to the wives and family members, the

children and the grandchildren, I say what you know: No

Social Developments 1775

power on Earth can give you back the lives lost, the pain

suffered, the years of internal torment and anguish. What

was done cannot be undone. But we can end the silence.

We can stop turning our heads away. We can look at you in

the eye and finally say on behalf of the American people,

what the United States government did was shameful, and

I am sorry. (Applause.)

The American people are sorry — for the loss, for the

years of hurt. You did nothing wrong, but you were

grievously wronged. I apologize and I am sorry that this

apology has been so long in coming. (Applause.)

To Macon County, to Tuskegee, to the doctors who

have been wrongly associated with the events there, you

have our apology, as well. To our African American citi-

zens, I am sorry that your federal government orchestrated

a study so clearly racist. That can never be allowed to hap-

pen again. It is against everything our country stands for

and what we must stand against is what it was.

So let us resolve to hold forever in our hearts and

minds the memory of a time not long ago in Macon

County, Alabama, so that we can always see how adrift we

can become when the rights of any citizens are neglected,

ignored and betrayed. And let us resolve here and now to

move forward together.

The legacy of the study at Tuskegee has reached far

and deep, in ways that hurt our progress and divide our

nation. We cannot be one America when a whole segment

of our nation has no trust in America. An apology is the

first step, and we take it with a commitment to rebuild that

broken trust. We can begin by making sure there is never

again another episode like this one. We need to do more to

ensure that medical research practices are sound and eth-

ical, and that researchers work more closely with commu-

nities.

Today I would like to announce several steps to help

us achieve these goals. First, we will help to build that last-

ing memorial at Tuskegee. (Applause.) The school

founded by Booker T. Washington, distinguished by the

renowned scientist George Washington Carver and so

many others who advanced the health and well-being of

African Americans and all Americans, is a fitting site. The

Department of Health and Human Services will award a

planning grant so the school can pursue establishing a cen-

ter for bioethics in research and health care. The center

will serve as a museum of the study and support efforts to

address its legacy and strengthen bioethics training.

Second, we commit to increase our community

involvement so that we may begin restoring lost trust. The

study at Tuskegee served to sow distrust of our medical

institutions, especially where research is involved. Since

the study was halted, abuses have been checked by making

informed consent and local review mandatory in federally-

funded and mandated research.

Still, 25 years later, many medical studies have little

African American participation and African American

organ donors are few. This impedes efforts to conduct

promising research and to provide the best health care to

all our people, including African Americans. So today, I’m

directing the Secretary of Health and Human Services,

Donna Shalala, to issue a report in 180 days about how we

can best involve communities, especially minority commu-

nities, in research and health care. You must—every Amer-

ican group must be involved in medical research in ways

that are positive. We have put the curse behind us; now we

must bring the benefits to all Americans. (Applause.)

Third, we commit to strengthen researchers’ training

in bioethics. We are constantly working on making break-

throughs in protecting the health of our people and in van-

quishing diseases. But all our people must be assured that

their rights and dignity will be respected as new drugs,

treatments and therapies are tested and used. So I am

directing Secretary Shalala to work in partnership with

higher education to prepare training materials for medical

researchers. They will be available in a year. They will help

researchers build on core ethical principles of respect for

individuals, justice and informed consent, and advise them

on how to use these principles effectively in diverse popu-

lations.

Fourth, to increase and broaden our understanding of

ethical issues and clinical research, we commit to provid-

ing postgraduate fellowships to train bioethicists especially

among African Americans and other minority groups.

HHS will offer these fellowships beginning in September

of 1998 to promising students enrolled in bioethics gradu-

ate programs.

And, finally, by executive order I am also today

extending the charter of the National Bioethics Advisory

Commission to October of 1999. The need for this com-

mission is clear. We must be able to call on the thoughtful,

collective wisdom of experts and community representa-

tives to find ways to further strengthen our protections for

subjects in human research.

We face a challenge in our time. Science and technol-

ogy are rapidly changing our lives with the promise of mak-

ing us much healthier, much more productive and more

prosperous. But with these changes we must work harder

to see that as we advance we don’t leave behind our con-

science. No ground is gained and, indeed, much is lost if

we lose our moral bearings in the name of progress.

The people who ran the study at Tuskegee diminished

the stature of man by abandoning the most basic ethical

precepts. They forgot their pledge to heal and repair. They

had the power to heal the survivors and all the others and

they did not. Today, all we can do is apologize. But you

have the power, for only you—Mr. Shaw, the others who

are here, the family members who are with us in

1776 ERA 10: Contemporary United States

Tuskegee—only you have the power to forgive. Your pres-

ence here shows us that you have chosen a better path than

your government did so long ago. You have not withheld

the power to forgive. I hope today and tomorrow every

American will remember your lesson and live by it.

Thank you, and God bless you.

Source:

National Archives and Records Administration. Clinton Presi-

dential Materials Project. Available on-line. URL: http://

clinton5.nara.gov/New/Remarks/19970516-898.html.

Accessed November 2003.

Baker v. State of Vermont, 1998

Vermont Supreme Court ruling that the state’s marriage laws as

they stood were unconstitutional because they granted bene-

fits and protections to heterosexual couples, who could marry

and therefore reap the legal benefits of marriage, and not to

same-sex couples. The suit was brought by three same-sex

couples who had been in committed relationships for between

four and 25 years. Two of the couples had raised children

together. Each of the couples applied for marriage licenses but

were denied the licenses in accordance with the commonly

held definition of marriage as the union of a man and a

woman as husband and wife.

The ruling hinged on Article 7 of the Vermont Constitu-

tion, which provided “[t]hat 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; and that the

community hath an indubitable, unalienable, and indefeasible

right, to reform or alter government, in such a manner as shall

be, by that community, judged most conducive to the public

weal.” As Judge Amestoy wrote for the majority, the “common

benefits” clause of the Vermont Constitution prohibited “the

conferral of advantages or emoluments upon the privileged.”

The majority discounted the state’s argument that the purpose

of marriage law was to “further the link between procreation

and child-rearing.” The court pointed out that many married

couples had no intention of raising children, while many

same-sex couples, through artificial insemination or adoption,

do raise children together. “In short,” the court wrote, “the

marital exclusion treats persons who are similarly situated for

purposes of the law, differently.” The majority concluded that

the legislature should change the law either by legalizing gay

marriage or offering an alternative form of same-sex union that

conferred the same benefits and protections as heterosexual

marriage.

The legislature chose the latter by enacting Vermont’s

Civil Union Law of 2000. Marriage itself continued to be con-

fined to heterosexual unions. However, two people over 18 of

the same sex who are not related could form a civil union

under the new law and receive all the same rights as a married

couple. These rights include joint adoption, survivor benefits,

family leave benefits, and spousal abuse programs. Couples

who met the requirements for a civil union could obtain a

license that the clerk must issue to all couples who qualify.

Civil unions must then be certified within 60 days of the

issuance of the license. If a couple wished to dissolve their

civil union, they followed the same procedure as married cou-

ples seeking divorce.

Legal recognition of these civil unions did not stretch

beyond Vermont’s borders. The Defense of Marriage Act,

signed by President Clinton in 1996, explicitly stated that the

federal government did not recognize same-sex unions that

are treated like marriage and that other states would not be

forced to recognize them either. As this goes to press, the

courts have not dealt with the 1996 act’s constitutionality.

________________________

_______________________

Opinion by Chief Justice Amestoy

May the State of Vermont exclude same-sex couples from

the benefits and protections that its laws provide to oppo-

site-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 excep-

tion 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 peo-

ple, nation, or community, and not for the particular emol-

ument 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 mar-

riage under Vermont law. Whether this ultimately takes

the form of inclusion within the marriage laws themselves

or a parallel “domestic partnership” system or some equiv-

alent 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.

Social Developments 1777

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 mar-

riage 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 Ver-

mont Constitution. . . .

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, Arti-

cle 7 of the Vermont Constitution. They note that in deny-

ing them access to a civil marriage license, the law

effectively excludes them from a broad array of legal ben-

efits and protections incident to the marital relation,

including access to a spouse’s medical, life, and disability

insurance, hospital visitation and other medical decision-

making privileges, spousal support, intestate succession,

homestead protections, and many other statutory protec-

tions. They claim the trial court erred in upholding the

law on the basis that it reasonably served the State’s inter-

est 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 guar-

antees the right to adopt and raise children regardless of

the sex of the parents, and challenge the logic of a legisla-

tive scheme that recognizes the rights of same-sex part-

ners 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 Four-

teenth Amendment to the United States Constitution. . . .

In understanding the import of the Common Benefits

Clause, this Court has often referred to principles devel-

oped by the federal courts in applying the Equal Protec-

tion Clause. At the same time, however, we have

recognized that “[a]lthough the provisions have some sim-

ilarity of purpose, they are not identical.” Indeed, recent

Vermont decisions reflect a very different approach from

current federal jurisprudence. That approach may be

described as broadly deferential to the legislative preroga-

tive to define and advance governmental ends, while vig-

orously 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, there are notable exceptions. . . .

Vermont courts—having “access to specific legislative his-

tory 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.

Although it is accurate to point out that our decisions

have consistently recited the federal rational-basis/strict-

scrutiny tests, it is equally fair to observe that we have

been less than consistent in their application. Just as com-

mentators 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. . . .

“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 inter-

est.” 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. . . .

The words of the Common Benefits Clause are reveal-

ing. 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 dis-

cussion that follows, the specific proscription against gov-

ernmental 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 “com-

mon 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 equal-

ity 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.” 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. . . .

These and other provisions have led one historian to

observe that Vermont’s first charter was the “most demo-

cratic constitution produced by any of the American

states.” 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

1778 ERA 10: Contemporary United States

access to public benefits and protections for the commu-

nity 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 differ-

ences of capacity, disposition, and virtue, rather than gov-

ernmental favor and privilege.

The language and history of the Common Benefits

Clause thus reinforce the conclusion that a relatively uni-

form 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. . . . 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.

We look next to the government’s purpose in drawing

a classification that includes some members of the com-

munity 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 mem-

bers 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. . . .

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 classi-

fication. 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. Next, we

must identify the governmental purpose or purposes to be

served by the statutory classification. The principal pur-

pose the State advances in support of the excluding same-

sex couples from the legal benefits of marriage is the

government’s interest in “furthering the link between pro-

creation 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 func-

tions 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 rais-

ing 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 inter-

twined.”

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 pro-

moting 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.

It is equally undisputed that many opposite-sex cou-

ples 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 under-inclusive. The law extends the ben-

efits 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 par-

ents, and that increasing numbers of children are being

conceived by such parents through a variety of assisted-

reproductive techniques.

Thus, with or without the marriage sanction, the real-

ity today is that increasing numbers of same-sex couples

are employing increasingly efficient assisted-reproductive

techniques to conceive and raise children. 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 con-

ceived through such efforts.

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 oppo-

site-sex couples with respect to these objectives. If any-

thing, 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 exclu-

Social Developments 1779

sion treats persons who are similarly situated for purposes

of the law, differently. . . .

The question thus becomes whether the exclusion of a

relatively small but significant number of otherwise quali-

fied same-sex couples from the same legal benefits and

protections afforded their opposite-sex counterparts con-

travenes the mandates of Article 7. It is, of course, well set-

tled that statutes are not necessarily unconstitutional

because they fail to extend legal protection to all who are

similarly situated. . . . We turn, accordingly, from the prin-

cipal justifications advanced by the State to the interests

asserted by plaintiffs.

As noted, in determining whether a statutory exclu-

sion reasonably relates to the governmental purpose it is

appropriate to consider the history and significance of the

benefits denied. What do these considerations reveal

about the benefits and protections at issue here? In Loving

v. Virginia (1967), the United States Supreme Court, strik-

ing 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 sig-

nificantly 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 nat-

ural rights of human nature.” 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. 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 mar-

riage 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;

preference in being appointed as the personal representa-

tive of a spouse who dies intestate; the right to bring a law-

suit for the wrongful death of a spouse; the right to bring

an action for loss of consortium; the right to workers’ com-

pensation survivor benefits; the right to spousal benefits

statutorily guaranteed to public employees, including

health, life,disability, and accident insurance; the opportu-

nity to be covered as a spouse under group life insurance

policies issued to an employee; the opportunity to be cov-

ered as the insured’s spouse under an individual health

insurance policy; the right to claim an evidentiary privilege

for marital communications; homestead rights and protec-

tions; the presumption of joint ownership of property and

the concomitant right of survivorship; hospital visitation

and other rights incident to the medical treatment of a

family member; and the right to receive, and the obligation

to provide, spousal support, maintenance, and property

division in the event of separation or divorce.

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 pub-

lic concerns of sufficient weight, cogency, and authority

that the justice of the deprivation cannot seriously be ques-

tioned. Considered in light of the extreme logical disjunc-

tion 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 mar-

riage to same-sex couples, who are no differently situated

with respect to this goal than their opposite-sex counter-

parts. Promoting a link between procreation and childrea-

ring 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 ratio-

nales 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 com-

plications of surrogacy contracts and sperm donors,

“bridging differences” between the sexes, discouraging

marriages of convenience for tax, housing or other bene-

fits, maintaining uniformity with marriage laws in other

states, and generally protecting marriage from “destabiliz-

ing changes.” The most substantive of the State’s remain-

ing 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 remov-

ing all prior legal barriers to the adoption of children by

1780 ERA 10: Contemporary United States

same-sex couples. 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 mar-

riage 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. 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 specula-

tive, but refuted by two relevant legislative choices

which demonstrate that uniformity with other jurisdictions

has not been a governmental purpose. . . .

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 rela-

tionship. We find the argument to be unpersuasive for sev-

eral 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. Second, what-

ever 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 for-

mer § 2603 of Title 13, which criminalized fellatio). In

1991, Vermont was one of the first states to enact statewide

legislation prohibiting discrimination in employment,

housing, and other services based on sexual orientation.

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 pro-

tections to such couples who dissolve their “domestic rela-

tionship.”

Thus, viewed in the light of history, logic, and experi-

ence, we conclude that none of the interests asserted by

the State provides a reasonable and just basis for the con-

tinued 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 con-

stitutional 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. . . .

DOOLEY, J., concurring.

Vermont’s legal climate differs considerably from that in

other jurisdictions where courts have held that lesbians

and gay men are not a suspect classification. . . .In this con-

currence, I do not detail a suspect-classification analysis,

but I can summarize my opinion by saying that I agree

with the general framework adopted by the Oregon courts.

. .

More importantly, I cannot endorse, in this vitally

important area of constitutional review, a standard that

relies wholly on factors and balancing, with no mooring in

any criteria or guidelines, however imperfect they may be.

. . . For the above reasons, I concur in the mandate, but

respectfully disagree with Part II of the Court’s decision,

the majority’s rationale for reaching this mandate.

JOHNSON, J., concurring in part and

dissenting in part.

Plaintiffs come before this Court claiming that the State has

unconstitutionally deprived them of the benefits of marriage

based solely upon a discriminatory classification that violates

their civil rights. They ask the Court to remedy the unlawful

discrimination by enjoining the State and its municipalities

from denying them the license that serves to identify the

persons entitled to those benefits. The majority agrees that

the Common Benefits Clause of the Vermont Constitution

entitles plaintiffs to obtain the same benefits and protections

as those bestowed upon married opposite-sex couples, yet it

declines to give them any relief other than an exhortation to

the Legislature to deal with the problem. I concur with the

majority’s holding, but I respectfully dissent from its novel

and truncated remedy, which in my view abdicates this

Court’s constitutional duty to redress violations of constitu-

tional rights. I would grant the requested relief and enjoin

defendants from denying plaintiffs a marriage license based

solely on the sex of the applicants. . . .

The majority declares that the issue before this Court

does not turn on the heated moral debate over intimate

same-sex relationships, and further, that this Court has a

constitutional responsibility to consider the legal merits of

even controversial cases. Yet, notwithstanding these pro-

nouncements, the majority elects to send plaintiffs to an

uncertain fate in the political caldron of that very same

moral debate. And to what end? Passing this case on to the

Legislature will not alleviate the instability and uncertainty

that the majority seeks to avoid, and will unnecessarily

entangle this Court in the Legislature’s efforts to accom-

modate the majority’s mandate within a “reasonable period

of time. . . .”

Source:

Stan Baker, et al. v. State of Vermont, et al., 170 Vt. 194, 744 A.2d

864 (1999).

Social Developments 1781