Testimony of Hal Goldman, Esq. before the House Committee on the Judiciary regarding Baker v. State of VT, Wednesday, January 12, 2000

Good morning, ladies and gentlemen. 

My name is Hal Goldman. I am a Vermont lawyer and advanced doctoral candidate in history. My specialty is the history of law, gender, and sexuality. My dissertation, which is nearing completion, looks at how Vermont’s courts dealt with sexual matters during the nineteenth and early twentieth century. The opinions I express here today in my prepared statement are those of Take It To The People, a grassroots Vermont coalition supporting Traditional Marriage.

When I volunteered to write a friend of the court brief on behalf of Take It To The People as part of the Baker litigation, I did so for two reasons. First, as a scholar of the history of sexuality, I am deeply concerned about the unpredictable effects altering fundamental definitions of family can have on our institutions and laws. I arrive at this position not from a religious perspective, but from one of social utility. I do not believe it is wise social policy to disrupt and destabilize our fundamental institutions as part of some large social experiment. I believe that redefining marriage, or creating alternative, state-sponsored sexual relationships such as domestic partnerships whether heterosexual or homosexual, is not in the best interests of society as a whole. The burden of proof here is not on those of us who would keep things as they are, but on those who would radically alter our fundamental social and cultural institutions for their own narrow purposes.

The second reason why I offered to help Take It To The People was my fear that in order to grant the three homosexual couples the relief they were seeking, the Vermont Supreme Court would have to exceed its authority, abuse its power, and violate the Constitution. The opinions in Baker exceeded my worst fears in this respect. It is this aspect of the decision and the constitutional crisis that it has provoked that I wish to address today.

What Was Before the Court and What Did it Decide?

There were two parts to the Appellants’ challenge heard by the Supreme Court. First, they argued that Vermont’s Marriage Registration Law, 18 V.S.A. § 5131 et seq. permitted same-sex couples to marry. Second, they argued that if it did not, then the law was unconstitutional because in violation of the Common Benefits Clause. The Appellants focused on obtaining the right to marry for two reasons. First, they understood that marriage was the gateway to a host of benefits and privileges. Second, national homosexual activists desperately need at least one state to permit same-sex couples to marry so they could challenge the federal Defense of Marriage Act. Vermont was perhaps their last, best hope to get a liberal court to force same-sex marriage on an unwilling populace. Once that was accomplished, out-of-state couples would flock to Vermont to marry and then return to their home states, demand that their Vermont marriages be recognized, and then challenge the federal law when it was not. 

However, the Court held as a matter of law that Vermont’s marriage statute did not include same-sex couples and held, explicitly and unequivocally, that the marriage law, in restricting legal marriage to the union of one man and one woman, did not violate the Vermont Constitution. [Baker v. State of Vermont, Docket No.98-032 (December 20, 1999) at 39.] But the Court did do something extraordinary. Rejecting the system of constitutional analysis the Court had relied on for decades, the same one used by all other states and the federal courts, the majority adopted a new form of analysis under the Common Benefits Clause and declared that denying homosexual couples the benefits of marriage violated Vermont’s constitution. It then ordered, that’s right, ordered this Legislature to enact hundreds of new laws creating a parallel framework of benefits for homosexual couples that would guarantee “all or most” of the benefits married couples receive. [Baker at 45.]

I am not going to take on the Court’s reasoning in arriving at its substantive decision - i.e. that Vermont’s constitution requires the state to provide homosexual couples with domestic partnership benefits. I will leave that to others. But by way of a reality check I would remind you that less than twenty years ago, San Francisco’s City Council did not believe that such benefits were even legal. Yet today, our Court has ruled that the provision of such benefits is required by our Common Benefits Clause, a clause unamended for more than 200 years. Truly, we are down the rabbit hole of judicial excess.

Instead I want to talk about the method used by the Court in arriving at its so-called mandate to this Legislature. When faced with a challenge to a statute under our Common Benefits Clause, our Supreme Court has two choices , it can either uphold the law as a legitimate exercise of the General Assembly’s power, or it can strike it down as unconstitutional. If a court upholds the statute, its work and its jurisdiction is at an end. 

If the court strikes down the law, it can instruct the Legislature on how it can pass new legislation which will pass constitutional muster. This is exactly what happened in the Brigham decision. The Court ruled, rightly or wrongly, that Vermont’s school property tax funding scheme was unconstitutional. Its opinion struck down the law and offered the Legislature guidance on the basic principles any new law had to comply with in order to meet constitutional muster, but left it wholly up to the Legislature to determine the appropriate scheme. [Brigham v. State, 166 Vt. 246 (1997)]. What the Court did in Brigham defines the outer limits of an appellate court’s ability to influence Vermont’s statute law. 

Compare that to what the Court has done in Baker. As I have already mentioned, the Court upheld the statute being challenged, but having done that, went ahead and ordered this Legislature to come up with a whole new statutory scheme to offer benefits that have never before existed under this or any other state’s laws including the creation of a brand new legal relationship-some form of domestic partnership. How can it do such a thing? If it is not striking down the challenged law before it, what exactly is it declaring unconstitutional? A mood? An attitude? A social and cultural framework? In the absence of a voided statute, the Court’s purported mandate is inoperative and meaningless. At best it is an advisory opinion which our Court has repeatedly held is not within its jurisdiction to give. See In re Costitutionality of House Bill 88, [115 Vt. 524 (1949)]. Justice Johnson called the Baker decision “little more than a declaration of rights.” She continued:

“the majority declares that plaintiffs have been unconstitutionally deprived of the benefits of marriage, but does not hold that the marriage laws are unconstitutional, does not hold that plaintiffs are entitled to the license that triggers those benefits, and does not provide plaintiffs with any other specific or direct remedy for the constitutional violation that the Court has found to exist. By suspending its judgment and allowing the Legislature to choose a remedy, the majority, in effect, issues an advisory opinion that leaves plaintiffs without redress and sends the matter to an uncertain fate in the Legislature.” [Baker (Johnson, J., concurring and dissenting) at 15]. Justice Johnson says this is an advisory opinion. Let’s believe her.

The alternative is worse. For if the Court and, more importantly, this Legislature, believes that the Court actually has the power to order the passage of statutes-especially in the absence of any void statute-then we have a serious constitutional crisis on our hands. By ordering this Legislature to create new statutory benefits, the Court is usurping the power of the Legislature for itself. This it cannot do. The most fundamental rule of our system of government is that the power of statutory law-making lies with the people and is exercised by their elected representatives in the General Assembly. Article II, § 2 of Vermont’s Constitution makes this clear in stating that “supreme legislative power shall be exercised by a Senate and a House of Representatives.” The General Assembly may not transfer this power to enact laws to any other entity. Time and again our Supreme Court has made clear that the legislative power lies only with the General Assembly. See, e.g., State v. Auclair, 110 Vt. 147 (1939). Conversely, the Court has ruled that the Legislature may not usurp the Court’s authority for itself. Wolfe v. Yudichak, 153 Vt. 235 (1989). 

These rulings comport with that other fundamental aspect of our democracy-the separation of powers. This principle too is written into our constitution. Art. II, § 5 requires that the three branches of our government “shall be separate and distinct, so that neither exercise the powers properly belonging to the others.” This separation between the legislative and the judicial powers is no mere constitutional nicety. Less than five years ago, the Vermont Supreme Court addressed the issue in In re D.L., [164 Vt. 223 (1995)]. In an opinion written by Justice Dooley and joined by Justices Morse and Johnson , the Court explained that the separation of powers was a fundamental principle of our government. 

“Briefly stated, the legislative power is the power that formulates and enacts the laws; the executive power enforces them; and the judicial power interprets and applies them.” The division of power “serves to create a structure resistant to forces of tyranny.” Quoting James Madison, Justice Dooley wrote that “where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free Constitution are subverted.” [164 Vt. at 228-229]. The bottom line here is that the Supreme Court cannot usurp the legislative function. It has no authority to order the creation of a brand new set of legal relationships that have never existed before.

Given this bizarre and illegal attempt by the Court to usurp the power of the General Assembly, one must ask, what are we doing here? Why is the Legislature gearing up to spend months or years of its precious time to comply with a “mandate” that at best is merely advisory and at worst represents a totally illegal and abusive act by the Court. Why is this Legislature complying with a decision which seeks to place ultimate statutory authority in the unelected Court rather than in this institution where it belongs? There are two answers to this question. 

First, the idea that the House would simply accept the Court’s decision as a soldier would his marching orders is a testament to the fact that we as a people believe in the rule of law. The power of the courts in our constitutional system is a vital one, but one that is fragile. We as citizens must be mature enough to realize the necessity of the Court in our system and follow its decisions even if we disagree with them and even if the Court has no army or police force to back up its decisions. The extent to which we may disagree with the Court’s decisions but move to carry them out anyway is laudable and a testament to our maturity as a state and nation. But the Court has obligations too. The finality of its rulings and the lack of accountability of the justices to the people are supposed to place an enormous burden on them. Speaking of this burden, U.S. Supreme Court Justice Robert Jackson wrote “we are not final because we are infallible, but we are infallible only because we are final.” [Brown v. Allen, 344 U.S. 443, 540 (1953)]. 

Most courts take the responsibility of such power very seriously and this explains why they are often the most highly regarded of our three branches of government, and why we are instinctively obedient to their rulings. But there are times when that instinctive obedience is misplaced. There are occasions when courts abuse their authority and act outside of their power. This is one of those times. In this case, we must overcome our laudable instincts to shout “how high?” when the Court speaks and instead understand that complying with this decision rather than ignoring it poses the far more dangerous threat to our democracy.

In thinking about this case, as I have done, almost nonstop in the three weeks since it was handed down, I have racked my brain trying to recall any other case like it in past three hundred years of American constitutional jurisprudence. Only one case comes to mind, and that case is Dred Scott v. Sanford, [19 How. 393 (1857)]. In Dred Scott, the U.S. Supreme Court, led by Chief Justice Roger Taney, sought to use its judicial power in order to resolve an essentially political question that was tearing the nation apart-the question of whether slavery would spread to the western territories as America expanded. Taney resolved the issue by declaring a federal law, the Missouri Compromise of 1820, to be unconstitutional. 

As in Baker, he reached an issue, the constitutionality of the Missouri Compromise, despite the fact that he had already decided the dispositive issue before him-Dred Scott was a Negro, Negroes were not considered citizens of the United States at the time of the adoption of the U.S. Constitution, therefore, Scott could not sue for his freedom in the federal courts. The Court’s jurisdiction was at an end. Instead, Taney took it upon himself to force a political solution to slavery on the nation by use of a judicial opinion. What were the results? 

Some Southerners were happy with the result. Some politicians thought they had been let off the hook by the Court’s decision. Stephen Douglas counseled blind obedience to the decision. But Abraham Lincoln argued that the Court could never strip authority from the president and the Congress. “By resisting it as a political rule, I disturb no right of property, create no disorder, excite no mobs” he wrote. [A. Bickel, The Morality of Consent (1975) at 101.] Lincoln, not Douglas, was right of course. Most people rejected the Court’s decision as an inappropriate exercise of its power and a gross misreading of the Constitution and of history. It ended up solving nothing and cast the Court into disrepute for more than fifty years. A result bad for the Court and bad for the nation.

Another reason why I think we have been reluctant to see this case in its true context is the nakedly political approach of the Court to this issue. The decision is crafty in that it purports to give everybody at least a little bit of what they want. Traditional marriage supporters feel that they have been saved from gay marriage. Homosexual rights supporters got a decision that went farther than any other court in the nation has gone in requiring domestic partnership benefits. By so ruling, the Court sought to blunt political and legal opposition to its decision and obscured its revolutionary grab for control of legislative power. 

I have been amazed at the lack of outcry or even comment about the methods contained in this decision. For example, is this committee aware that the Court has cast aside the equal protection jurisprudence that it has relied on for decades? This analysis, utilized by the U.S. Supreme Court, almost all states, and, up till now, this state as well, was simply discarded in Baker. In its place, the Court substituted the following “standard” it will use to determine whether or not laws passed by this body meet constitutional muster:

“We must ultimately ascertain whether the omission of a part of the community from the benefit, protection and security of the challenged law bears a reasonable and just relation to the governmental purpose. Consistent with the core presumption of inclusion, factors to be considered in this determination may include: (1) the significance of the benefits and protections of the challenged law; (2) whether the omission of members of the community from the benefits and protections of the challenged law promotes the government’s stated goals; and (3) whether the classification is significantly underinclusive or overinclusive.” 

As Justice Souter has observed in a different context, this approach necessarily “calls for a court to assess the relative ‘weights’ of dignities of the contending interests.” What keeps that assessment grounded and objective, and not based upon the private sensitivities or values of individual judges, is that in assessing the relative weights of competing interests courts must look to the history and “’traditions from which [the State] developed’” as well as those “’from which it broke,’” and not to merely personal notions. Moreover, the process of review is necessarily “one of close criticism going to the detail of the opposing interests and their relationships with the historically recognized principles that lend them weight or value.” [Baker v. State of Vermont, Docket No. 1009-97CnC (December 20, 1999), 25 (citations omitted, emphasis in the original).]

I ask you: how can the members of this committee possibly predict whether legislation passed by the House or Senate will pass constitutional muster under this new “standard?” This new rule, announced, as yet, without any controversy, further concentrates legislative power in the hands of whatever three members of the Court are personally offended by a piece of legislation. Again, you do not have to take my word for it. 

Here is what Justice Dooley said of the Court’s new Common Benefits Clause jurisprudence --

“Two points about the new standard are particularly troublesome for me. The majority now requires that legislative classifications be ‘reasonably necessary to accomplish the State’s claimed objectives.’ In our imperfect world, few legislative classifications are ‘necessary,’ and most legislation could be more narrowly tailored to the state’s objective. I cannot square this standard with our limited role in constitutional adjudication. . . . 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. . . . In the end, the approach the majority has developed relies too much on the identities and personal philosophies of the men and women who fill the chairs of the Supreme Court, too little on ascertainable standards that judges of different backgrounds and philosophies can apply equally, and very little, if any, on deference to the legislative branch.” [Baker (Dooley, J., concurring) at 17-18 (underlining in the original, emphasis added).] 

Justice Johnson agreed, declaring that the new standard “puts the rule of law at ‘excessive risk.’” [Baker (Johnson, concurring and dissenting) at 21, n. 13.] 

Let me reiterate, these comments come from Justices Dooley and Johnson. When these two justices argue that the Court has assumed too much power, I think we have to pay attention. Ladies and Gentlemen, the sky really is falling. This new “standard” is no standard at all. It makes it impossible for you to do your job, and it ought to make you furious.

Some see the decision as a brilliant compromise, but no compromise is brilliant if forced down the people’s throats by an institution without authority to do so. With all due respect to the members of this committee, the fact that it may be politically easier to accede to this decision than to resist it, cannot obscure your duty as legislators. You are sworn to protect the rights of the people to control their own destinies through the legislative process. Acceding to the Court’s advisory opinion, or to what amounts to its radical reformulation of judicial power would be a betrayal of your obligation to your constituents. You are free to consider the matter of homosexual rights in this body, but that consideration must be of your own free will, and not the product of compulsion by a Supreme Court that has lost sight of the limitations of its powers.

The Court’s decision in Baker has been very upsetting to me as a Vermonter. Perhaps the most troubling aspect (among a multitude of troubling aspects) is the deep disdain the Court shows for the people of this state and their right to control their own destiny. Our justices have no faith in the people’s ability to grapple with and solve the hard problems of living together in a diverse and pluralistic society. Constitutional democracy does not mean perfection. Almost by definition it means that everyone’s desires will not be fulfilled, not everyone will get what they want. That does not mean that our society is hopelessly flawed or that someone else has to step in to make things right. 

Homosexuals in Vermont face no horrible crisis. They do not labor under any kind of oppression. There is no need for radical, revolutionary solutions. This is not a case of constitutionally mandated rights, long promised, but forever delayed or denied. Homosexual rights are a new, evolving issue-even among homosexuals themselves. There is no need for the Court to step in to force solutions down our throats. 

We as a people have decided that the people should be able to control their own destiny. The Baker decision forgets that and attempts to set up the Court not as the safeguard of a democratic system, but as a benevolent dictatorship where the justices have substituted their own personal sense of right and wrong for that of the people and felt free to violate the boundaries of their power in so doing. 

Justice Johnson dismisses the legislative process as a “political caldron of . . . moral debate.” [Baker (Johnson, J., concurring and dissenting) at 4.] I wonder what she thinks is the appropriate role for the Legislature of a free people. I hope Justice Johnson will forgive me if I see this building as a temple of political freedom, rather than a “caldron,” a vessel used to mix a witch’s brew. 

Instead of respecting the Legislature as the source of law-making power in our society, the Court seems to think your main responsibility is obedience. But you are not children in need of correction, we are not subjects in need of instruction from benevolent dictators backed by the threat of judicial force. You represent a separate, co-equal branch of our government and the viability of our democracy depends on your having the courage to resist this illegal decision.

Thank you for giving me this opportunity to speak to you today.