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Gay and lesbian lawyers across the United States are bracing for a wave of litigation over the status of same-sex couples whose relationships have been given a new legal status in the state of Vermont. In July, Vermont gave gay and lesbian couples the right to join in civil unions, a status equivalent to marriage. Since then, nearly 1,000 couples have obtained licenses and have gone to see a preacher or judge. And about 75 percent of those couples do not live in Vermont. Once they’re back home, legal issues are sure to arise as they separate, die or try to file joint tax returns. One by one, state courts will be asked to recognize Vermont civil unions by applying that state’s law or their own. Laws in 35 states bar the recognition of same-sex marriages. These “mini-DOMAs,” so-called after the federal Defense of Marriage Act, were sparked by a court ruling in Hawaii, which at one time seemed poised to be the first to approve gay marriage. However, eight other states besides Vermont have added sexual orientation to their laws against discrimination. They would therefore seem predisposed to look more favorably on Vermont civil unions. The Vermont civil union law resulted from the December 1999 state Supreme Court holding that the state constitution entitles same-sex couples to “the common benefits and protections that flow from marriage under Vermont law.” Baker v. State, 744 A.2d 864 (Vt. 1999). Chief Justice Jeffrey L. Amestoy wrote that extending legal protection to a same-sex couple’s commitment to a lasting relationship “is simply, when all is said and done, a recognition of our common humanity.” The court didn’t grant same-sex couples the right to marry. Instead, it ordered the Legislature to pass a law affording equivalent rights. If the Legislature failed to pass such a law, the court would simply extend marriage rights, it said. In April, the Legislature acted. Same-sex couples started getting licenses on July 1. Vermont was the hot topic at a recent conference of gay and lesbian lawyers called Lavender Law 2000, held in Washington, D.C. SOME DISAPPOINTMENT Attorney Beth Robinson of Langrock Sperry & Wool in Middlebury, Vt., who represented the plaintiffs in Baker, admits to being somewhat disappointed with the legislative results. Winning civil unions instead of marriage, she says, was like winning the silver medal at the Olympics. “When we achieved the civil union law, you might be surprised to hear that we didn’t really feel a sense of global elation in our community,” she says. “We actually felt a great sense of disappointment and resignation. “Obviously what we’ve accomplished is incredible. Now there’s a legal status that recognizes us as family.” Robinson represented the plaintiffs along with Susan Murray of the Langrock firm and Mary Bonauto of Gay & Lesbian Advocates & Defenders in Boston. In a backlash to the case, Robinson says, several veteran lawmakers were targeted by opponents of civil unions and lost in their primary elections. But the law appears safe from repeal for now because Vermonters re-elected Democratic Governor Howard Dean on Nov. 7, along with enough civil union supporters in both houses of the Legislature that a repeal would have little hope of overriding the governor’s veto. When litigation in other states begins, the task will fall to each state’s attorney general to defend that state’s mini-DOMA. Since no suit is pending, those offices tend to be mum on the issue. In Pennsylvania, Sean Connolly, spokesman for Attorney General Mike Fisher, says that the office will respond only when the issue comes to court. The litigation also seems sure to attract friend-of-the-court briefs on both sides. A likely player against the recognition of same-sex unions will be the American Center for Law & Justice, which filed an amicus brief in Baker v. State opposing any extension of marriage to same-sex couples. ACLJ founding attorney Jay Alan Sekulow argued for reserving special status to heterosexual monogamous marriage as being “a union that is qualitatively different than any other relationship.” No one in the organization could be reached at press time for comment on the impact of the Vermont law. Attorney Evan Wolfson of the Lambda Legal Defense & Education Fund in New York says he will be advising gay lawyers on “which cases, which incidents, which issues that might arise that might make good building-block litigation so that we can all together shape the best body of law as it unfolds.” The best case, Wolfson says, is likely to be one that doesn’t ask the courts to “make some sweeping pronouncement about marriage or civil unions.” Wolfson, who argued the gay Boy Scout case before the U.S. Supreme Court and who heads Lambda’s Marriage Project, says there are “probably 10 states” in which same-sex couples have a good chance of winning marriage rights, either in the courts or the legislature. As those battles begin, he says, he cautions lawyers not to “bargain against ourselves.” “Don’t go into legislatures, don’t go into courts and, most important, don’t go into the public arena aiming too low,” he says. “It is by talking about full equality, by telling the true breadth and reality and diversity of our lives, by demanding the equality that is our birthright, and most importantly, by patiently and persistently asking for support from the people that are reachable, that we are going to achieve this.” ‘SEPARATE BUT EQUAL’ Professor Barbara Cox of California Western School of Law in San Diego says she worries that Vermont’s civil union law has established a “separate but equal” standard that will encourage heterosexuals to “believe that we are somehow less than they are — that we don’t deserve the same rights.” Cox says the reaction in Vermont confirmed her view. “The very fact that it was important for them to reserve the word ‘marriage’ for themselves and their relationships means that they somehow felt that ours shouldn’t be treated equally,” she says. Cox says the black civil rights movement and the women’s movement didn’t succeed until courts rejected the separate-but-equal rationale. “As far as I’m concerned, we still need to be pushing for marriage, and we need to have that word attached to it because that word says a lot and it means a lot,” she says. An expert in choice-of-law jurisprudence, Cox says litigation in the other 49 states regarding Vermont’s civil unions is bound to be complicated and produce mixed results. ‘FULL FAITH AND CREDIT’ While many gay lawyers may be thinking of arguing that civil unions must be recognized under the full faith and credit clause of the U.S. Constitution, Cox says that she doesn’t see it as a surefire win. “Contrary to what The New York Times and most other popular press say, full faith and credit usually doesn’t apply to marriage and hasn’t done so yet,” she says. “That’s not to say you couldn’t make that argument — obviously we could — it just hasn’t been done yet.” Bonauto, the Vermont lawyer who worked on the case, says that she agrees full marriage rights should be the goal. Nonetheless, she says, the civil union law “transformed us from being legal strangers to being legal next of kin.” To win recognition of civil unions in other states, Bonauto says, the litigation “really has to be carefully chosen and well planned …. [It] has to be oh-my-God kind of facts. That means usually, unfortunately, death or disability, at least to start.” Cox concurs, saying that an estate suit brought by the surviving partner of a civil union would have a stronger chance in the courts because the plaintiff would only be seeking recognition of “an incident of marriage.” By contrast, she says, in a suit in which one of the civil union partners is attacking the legitimacy of the union, “that’s when courts tend to look more questioningly.” Attorney Jennifer Levi of the Gay & Lesbian Advocates & Defenders in Boston says that when same-sex couples who are joined in civil union want to separate, they should go to their own state’s divorce court. “Vermont has defined civil unions to be a marital status,” Levi says. “The divorce courts of other states should respect the Vermont civil unions as marriages. “Now, whether or not that will be successful in the various states, I expect that we’ll see a hodgepodge.” Levi says that she advises same-sex couples to use a “belt and suspenders” approach by drafting their own written agreements in case their civil union is not recognized. Attorney Frederick Hertz of Oakland, Calif., the author of “Legal Affairs: Essential Advice for Same-Sex Couples,” says that he would advise clients to take their case into an ordinary trial court and ask the judge to treat the civil union like a contract in which the parties have agreed to abide by the rules of family law.

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