Old Constitutions and New Issues: National Lessons from Vermont's State Constitutional Case on Marriage of Same-Sex Couples

Abstract

The Vermont Supreme Court's 1999 ruling in Baker v. State was a watershed decision, holding that same-sex couples in Vermont were entitled to the same benefits and protections as opposite-sex married couples. While Baker is extremely important as a matter of substantive law, and as a contribution to the national discussion of the issues surrounding marriage of same sex-couples, it also provides an excellent lens through which to consider principles of state constitutional law and the New Judicial Federalism. This Article demonstrates how Baker is illustrative of major themes in state constitutional law, including the use of state constitutional history and textual analysis, distinctions between federal equal protection approaches and independent state constitutional equality doctrines, and plaintiffs' choice of state forum and state constitutional claims. The Article also shows how Baker highlights the application of a new, developing state constitutional rights jurisprudence.