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18 Arizona J. Int'l. and Comp. L. 141 (2001)
Nancy G. Maxwell (aa1)
Copyright © 2001 by Arizona Board of Regents; Nancy G. Maxwell
This Article examines and compares the legal developments in the Netherlands and the United States concerning the right of same-gender couples to marry. These two countries were selected for this comparison because, in December of 2000, the Dutch Parliament enacted legislation that changed the definition of marriage to include same-gender couples, and in the United States, several courts have struck down, as unconstitutional, statutes that limit marriage to opposite-gender couples. However, the routes that each country has taken to open marriage to same-gender couples have come from completely different directions. For example, in both countries same-gender couples have filed lawsuits seeking to marry. In the 1990s, five different cases were filed in the U.S., and the judges in at least three of these cases have been receptive to the petitioners' attempts to obtain marital rights. In the states of Hawaii (1) and Alaska, (2) lower court judges have held that the denial of marriage licenses to same-gender couples is unlawful discrimination in violation of state constitutional provisions. In the state of Vermont, (3) the highest appellate court has ruled that the Vermont Constitution requires same-gender couples be granted the *142 equivalent rights as married opposite-gender couples. Court challenges to the marriage laws in the Netherlands, however, have been unsuccessful and the Dutch judges have been unwilling to find that same-gender couples have a right to marry. (4)
On the other hand, in December of 2000, the Dutch Parliament enacted legislation that allows same-gender Dutch couples to marry one another in civil ceremonies. (5) Ironically, just the opposite legislative activity is occurring in many of the U.S. states. In fact, in Hawaii and Alaska, state legislators and citizens recently passed constitutional amendments to limit marriage to opposite-gender couples, to prevent the court decisions in those states from taking effect. (6)
This article discusses and compares the contrasting legal developments in the United States and the Netherlands concerning the right of same-gender couples to marry. It does so by discussing the case law and the current legislative activity, first in the Netherlands and then in the United States, dealing with the right of same-gender couples to marry. The next section analyzes and compares the Dutch and United States legal histories concerning opening civil marriage to same-gender couples. This section examines how the differences in the two countries' legal systems, as well as the social status of homosexuals and the legal status of non-marital cohabitation, have influenced the contrasting routes these two countries have taken toward opening marriages to same-gender couples.
In 1990, two Dutch courts were confronted with the issue whether a same-gender couple could marry. The first issue in these cases involved the statutory *143 construction of the marriage statute. Because the marriage statute, Article 30, Book 1 of the Dutch Civil Code (Burgerlijk Wetboek), (7) did not contain gender-specific language, the petitioners argued that there was no statutory requirement that the marriage partners must be of opposite genders. The courts, one a district court in Amsterdam, (8) and the other, the highest appellate court of the Netherlands, the Supreme Court (Hoge Raad), (9) disagreed with the petitioners that the statutory language could be interpreted to allow same-gender individuals to marry one another. The district court of Amsterdam agreed with the petitioners that the statutory language in Article 30, Book 1 did not limit marriage to opposite- gender individuals. However, the court relied on the legislative history of the statute, and found that, at the time the law was enacted, marriage was only possible for persons of opposite genders. Consequently, even though the language of the Code did not limit marriage to opposite-gender individuals, the district court held that it was the legislators' intent to limit marriage to opposite-gender persons when they enacted the marriage laws.
The decision of the Hoge Raad several months later, in October of 1990, was in accordance with the Amsterdam district court's analysis of the language of Article 30, Book 1. In addressing the petitioners' argument that the statutory language did not prohibit same-gender persons from marrying each other, the Hoge Raad found that this argument was based on a literal interpretation of a number of articles of Book 1, which was an incorrect way of reading the statutes given the history of the enactment of Book 1 of the Netherlands Civil Code. (10) The court also stated that, even if later social developments supported the idea that prohibiting same-gender individuals from marrying one another was no longer justified, this change in public opinion would not support a reinterpretation of the Code, "especially as the subject matter relates to public order, and whereby legal certainty is an important issue." (11)
The petitioners in both Dutch cases also argued a second issue-that the denial of a marriage license infringed on certain individual rights and violated laws on equal treatment and nondiscrimination. Specifically, the petitioners maintained that the refusal to issue them a marriage license violated Articles 8 and 12 of the *144 European Convention on Human Rights (ECHR) (12) and Article 23 of the International Covenant on Civil and Political Rights (ICCPR), (13) which guarantee the freedom to have a family and the freedom to marry, and Article 14 of the ECHR (14) and Article 26 of the ICCPR, (15) which prohibit discriminatory behavior. (16)
*145 The Amsterdam district court declined to rule on the issue of whether the registrar's refusal to issue a marriage license to the petitioners violated international treaties, stating that to do so would fall outside the scope of the role of the judiciary. (17) In essence, the district court was saying that it was not up to the judiciary to remedy claims of inequality between same and opposite-gender couples. In addition, the district court noted that granting the petition, thereby allowing same-gender couples to marry, would have tremendous consequences in society and this issue was one that should be left to the legislature to solve because there was no need to deal with this issue quickly. (18) Consequently, the Amsterdam district court refused to decide the second issue raised in this case, deferring instead to Parliament. (19)
In the second case, however, the Netherlands Supreme Court did address the petitioners' allegations of violations of the Netherlands Constitution and of international law. The petitioners first argued that an interpretation of the language in the marriage statute to limit marriage to opposite-gender couples violated Article 1 of the Netherlands Constitution, which prohibits discrimination on any ground. The Netherlands Supreme Court did not accept this argument. It held that Article 1 of the Constitution "cannot change" (20) the legislative intent of the marriage statute, which was to limit marriages to opposite-gender couples.
*146 Next, the petitioners claimed that limiting marriage to opposite- gender couples violated Articles 8 and 12 of the ECHR and Article 23 of the ICCPR, which guarantee the freedom to have a family and the freedom to marry. The Hoge Raad, however, referred to two decisions of the European Court of Human Rights involving transgendered individuals who were seeking the right to marry. (21) In these decisions, the European Court held that Article 12 of the ECHR refers to the "traditional concept of marriage." (22) Thus, the Hoge Raad found that it was bound by this precedent and was not in a position to interpret Article 12 more broadly than the European Court of Human Rights. (23) Given this interpretation of the right to marry under Article 12 of the ECHR, the Netherlands Supreme Court also stated that it should be assumed that Article 23 of the ICCPR also referred to the "traditional marriage involving persons of opposite sexes." (24) In addition, the petitioners' claim that a refusal to allow same-gender couples to marry interfered with one's private and/or family life, as stated in Article 8 of the ECHR, was rejected by the Hoge Raad because of its interpretation of the term "marriage" in Article 12. Consequently, there had been no "interference by a public authority with the exercise of this right" as provided in Article 8. (25)
Because the Hoge Raad defined marriage in Article 12 of the ECHR and Article 23 of the ICCPR as meaning "traditional marriage involving persons of opposite sexes," it found there was no claim under the nondiscrimination provisions of Article 14 of the ECHR and Article 2 of the ICCPR that the petitioners were being denied their right to marry a person of the same gender, because that right was limited by the definition of marriage, which only applied to persons of opposite genders.
Finally, the Netherlands Supreme Court examined whether there had been a violation of Article 26 of the ICCPR, which contains a broader nondiscrimination, equal protection, provision than Article 2 of the same treaty. In its opinion, however, this was "not the case." The opinion continued as follows:
*147 Civil marriage is since time immemorial understood to be an enduring bond between a man and a woman to which a number of legal consequences are attached, which partly relate to the difference in sex and the consequences connected therewith for the descent of children. Marriage has these characteristics not only in the Netherlands but in many countries. Moreover, it cannot be said that the general opinion in the legal community has developed such that the considerations just mentioned do not justify the distinction in treatment on the grounds of sexual orientation, which can manifest itself in the impossibility to enter a relationship-like marriage with a person of the same sex as oneself. (26)
However, the Supreme Court's decision did recognize the "possibility" that other benefits of marriage denied to same-gender couples may not be justifiable, therefore inferring that it may be discriminatory to deny these other benefits to same-gender couples. The Hoge Raad stated, though, that a "question of this kind-which anyway could only be addressed by the legislature- was not raised in these proceedings." (27)
The Dutch cases set out the two main arguments that have been made in both the United States and in the Netherlands when same-gendered couples sued for the right to marry. The first argument was one of statutory construction. Because the text in the marriage statutes does not state specifically that marriage only involves a man and a woman, the petitioners asserted that they should be issued a marriage license. However, this argument was not successful in any of the cases, because, as the Dutch courts pointed out, the lawmakers assumed, when they enacted the statutes, that marriages would involve only opposite-gender individuals.
The second argument made in these cases was that, if marriage is limited to opposite-gender couples, then the marriage statutes violate certain rights found in constitutions or, in the Dutch cases, in international treaties. The most prominent rights asserted were the right to marry and the right to have a family, as well as provisions against unequal treatment. The Dutch cases exemplify one of two possible directions the courts could take within the context of this second argument-either the courts could raise the "separation of powers" analysis and thereby refuse to *148 deal with the arguments, or the courts could determine whether limiting marriage to opposite-gender couples was a violation of human rights principles. The Dutch district court took the first direction; it refused to analyze the human rights claims by stating that the inclusion of same-gender couples in the institution of marriage was a legislative, not a judicial question. Consequently, the court deferred to the legislature to deal with this issue. In the second case, however, the Netherlands Supreme Court did address the arguments, but the analysis seemed to be a repetition of the previous rationale found in the statutory interpretation issue. The Supreme Court determined that the rights protected in the treaties were limited by the "traditional" definition of marriage. In other words, there was no discrimination nor denial of human rights because the treaty provisions were drafted to protect only those individuals who fit into that traditional definition of marriage and family life, i.e., opposite-gender couples. Therefore, the Netherlands Supreme Court did not go beyond this argument to ask the more probing questions of whether marriage was, in fact, much more than merely a method of regulating procreation and the legitimation of children.
In defense of the Netherlands Supreme Court, however, this restrained approach was not unexpected, given the prior decisions of the European Court of Human Rights concerning the right of transgendered individuals to marry. Also, it would have been inappropriate for the Netherlands Supreme Court to give a much more liberal interpretation to the provisions of the international treaties, an interpretation that would be unanticipated by, and unacceptable to, the other signatories of the treaties. In fact, the Netherlands Supreme Court did acknowledge that discrimination arguments may become more relevant when examining the benefits opposite-gender couples acquire through marriage. The Supreme Court understood that the inability of same-gender couples to marry prevented them from receiving these benefits. On the other hand, however, the Supreme Court declined to investigate this more expansive view of the marriage relationship, and again relied on the separation of powers analysis, stating that this was an issue for the legislature. In doing so, the Netherlands Supreme Court did not take the opportunity to instruct the legislature to remedy this "possibility" of inequality, as it had in some other family law cases. (28)
*149 Because same-gender couples were not successful in obtaining marriage licenses through litigation in the Dutch courts, a new strategy was developed involving the power of municipalities to maintain "registers." Dutch law permits municipalities to maintain an unlimited number of registers. As a result, same-gender couples began to request that their relationships be registered under a new municipal register, referred to as the "marriage register." In 1991, the first same-gender relationship was registered in the town of Deventer, and within a few years over 130 municipalities were registering same-gender couples' relationships. (29) Although these registrations had no legal status, (30) the willingness of the municipalities to provide these registers carried great political and symbolic significance.
In other European countries, political developments concerning the recognition of same-gender relationships also took place during the same period. In 1989, Denmark became the first country to enact legislation creating the institution of "registered partnerships." In general, registered partnership laws allow same-gender couples almost all the benefits that heterosexual couples obtain through marriage. More countries followed Denmark's lead, and by 1996 Norway, Sweden, Greenland, and Iceland also had enacted registered partnership legislation.
The Netherlands was not far behind-in 1992, the Dutch government's Commissie voor de toetsing van wetgevingsprojecten (Advisory Commission for Legislation) issued a report recommending the adoption of registered partnership legislation similar to the Danish laws and, in 1994, a partnership bill was submitted to Parliament. Persons who are unable to marry because of a legal disability were to be allowed to register their partnership. This included not only same-gender couples, but also couples within prohibited degrees of relationship. Nonmarried, nonregistered adults were to be allowed to register. (31)
*150 The bill stalled in the Parliament, however, in part because the government believed that the Dutch people were not ready for equal marital rights for same-gender couples. (32) However, a public opinion poll in the summer of 1995 refuted this belief. When asked "Do you think that gays and lesbians who so wish should legally be allowed to marry, just like heterosexual couples?" seventy-three percent answered, "Yes." The poll's next question concerned the way in which this should be accomplished. The answer that received the highest percentage (33) was the one that proposed including gay and lesbian couples in the existing civil marriage laws, as opposed to creating a parallel system such as registered partnership.
In September of 1995, the government published a memorandum that proposed amendments to the registered partnerships bill. (34) The most controversial proposal was to open partnership registration to opposite-gender couples. Consequently, unlike the Scandinavian legislation on registered partnership, which limited registration to same-gender couples, the Dutch government's proposal created a dual system for heterosexual couples, who could choose between traditional marriage and registered partnership. At the same time, the government decided that there was not enough interest in allowing persons who fell within prohibited degrees of relationship to enter into registered partnerships, so instead of allowing this group to become registered partners, these individuals were excluded from forming registered partnership, just like in marriage.
The lower chamber of parliament, however, was not content with merely offering registered partnerships to same-gender couples and continued to push for including these couples within the marriage laws. In April of 1996, members of the lower chamber passed a resolution demanding that civil marriage laws include same-gender couples, by a vote of eighty-one to sixty. (35) The Dutch Cabinet, however, *151 remained opposed to opening civil marriage to same-gender couples if the marriage of two same-gender persons carried with it the presumptions of parentage for children born into these marriages. If marriage resulted in automatic parentage of same-gender partners, the Cabinet members feared these marriages would not be granted legal recognition in other countries. In addition, if married same-gender couples were granted all of the same rights as married opposite-gender couples, then same-gender couples would be able to adopt children together. (36) The Dutch Cabinet's position was that this consequence would discourage foreign countries from placing their children for adoption in the Netherlands. (37) Because the majority of Dutch adoptions involve foreign-born children, if this fear was justified, there would be little opportunity for heterosexual Dutch couples to adopt children. Because of the government's reluctance, and the continued insistence by the majority of members of the lower chamber of parliament to have a law allowing same-gender couples to marry, the Ministry of Justice appointed a committee (38) to study this issue and to report its findings to the government.
Meanwhile, it appeared that both houses were ready to enact the registered partnership bill and, eventually in 1997, Parliament approved two separate acts (39) amending the Netherlands Civil Code and more than one hundred other statutes, establishing a system of registered partnerships for both homosexual and *152 heterosexual couples. (40) According to the new laws, persons registering their partnerships are to obtain almost all the legal rights that accrue to a heterosexual marriage. However, there are several notable exceptions. For example, the law only applies to Dutch citizens or foreigners who are residents of the Netherlands. (41) Also, registered partnerships can be ended without seeking the permission of a court, whereas marriages must be terminated through court proceedings. (42) In addition, the new laws do not affect the legal status of each of the partner's children; persons in registered partnerships do not even have joint parental authority over each other's children. Another difference is that homosexuals cannot adopt their partners' children, whereas later legislation permitted unmarried heterosexual couples to adopt each other's children. (43) The Dutch parliament appears to have recognized this inconsistency in the adoption law, because in December of 2000, it enacted legislation (44) allowing same-gender couples to adopt children together. (45)
*153In October 1997, the committee that the Ministry of Justice appointed to study the question of opening up civil marriage, Commissie inzake openstelling van het burgerlijk huwelijk voor personen van hetzelfde geslacht (Committee on Opening Up Civil Marriage to Same-Gender Partners), known as the Kortmann Committee, (46) issued its report. (47) While the committee members agreed unanimously that, legally, there should not be more than two types of relationships between two people, they were divided on what these two types of relationships should be. The minority of committee members favored an option in which the two types would be heterosexual marriage and registered partnership. The majority of the members, however, favored another option in which the two types would be slightly different forms of civil marriage-heterosexual marriages, with the current presumptions of paternity of the children, and a second type of marriage in which there is no automatic parentage presumed when a child is born to the couple. The majority's position was that:
same-sex couples can only be afforded equal treatment if they are allowed to enter into civil marriages. These members do not view the new type of marriage as a break with tradition; after all, marriage has always been a flexible institution which has kept pace with changes in society. They feel that their proposal represents a step towards recognizing homosexual relationships, and might in fact inspire other countries to extend proper recognition to homosexual couples. (48)
The minority members' disagreement with opening civil marriage to same- gender couples was twofold. First, these committee members believe that "[a] long-term relationship between two men or two women is comparable but not equal to *154 that between a man and a woman, if only in terms of reproduction .... [T]hey question whether legislators are free to redefine marriage in a way that effectively removes one of its core elements - reproduction." (49) The second concern was that opening civil marriage to same-gender couples "would raise serious problems internationally which should not be underestimated." (50)
Four months after the Kortmann Committee issued its report, the Dutch Cabinet issued a statement that it would not pursue legislation to put into effect the majority's recommendation to open civil marriage to same-gender couples. (51) Instead, it recommended changes broadening registered partnership legislation, which had gone into effect two months earlier, in January of 1998. The lower chamber of the Dutch Parliament expressed its disagreement with the Cabinet's position by passing another resolution, demanding the Dutch government to prepare legislation to open civil marriage to same-gender couples by January of 1999. (52) No legislation was forthcoming, however, because the resolution was passed on the last day of the parliamentary year and general elections were going to be held in three weeks' time. The elections resulted in a liberal/social democratic/labor coalition, which was favorable to opening civil marriage to same-gender couples, and the coalition's official program included a statement to that effect: "In the interest of strengthening the equal treatment of homosexual and lesbian couples, the Cabinet shall before 1 January 1999 introduce a bill to open civil marriage to persons of the same sex" (53)
Pursuant to its promise of legislation on allowing marriages for same-gender couples, the Dutch Cabinet approved a bill in December of 1998, which was then forwarded to the Council of State (Raad van State) for advice. (54) Finally, on July 8, 1999, the Dutch government formally introduced the bill in Parliament, thereby *155 making its provisions public. The bill amends Article 30, Book 1 of the Netherlands Civil Code to read as follows:
Article 30
1. A marriage can be contracted by two persons of different sex or of the same sex.
2. The law only considers marriage in its civil relations. (55)
Consequently, the bill does not create a parallel relationship with heterosexual marriage, but changes the definition of marriage to include same- gender couples.
The bill also provides for a re-evaluation of registered partnerships five years after enactment, to determine whether registered partnerships should be converted into marriages and whether registered partnership legislation should be repealed. In addition, the explanatory memorandum accompanying the bill points out that there are two consequences of marriages of same-gender couples that will differ from marriages of opposite-gender couples-the presumption of the parentage of the children born during the marriage and problems with international recognition of marriages contracted by same-gender couples.
In explaining the difference concerning the presumption of the parentage of children born during the marriage, the memorandum states that:
[i]t would be pushing things too far to assume that a child born in a marriage of two women would legally descend from both women. That would be stretching reality. The distance between reality and law would become too great. Therefore this bill does not adjust chapter 11 of Book 1 of the Civil Code, which bases the law of descent on a man-woman relationship. Nevertheless, the relationship of a child with the two women or the two men who are caring for it and who are bringing it up, deserves to be protected, also in law. This protection has partly been realised through the possibility of joint authority for a parent and his or her partner (articles 253t ff.) and will be completed with a proposal for the introduction of adoption by same-sex partners [introduced 8 July 1999, Parliamentary Papers II 1998/1999, 26 673], with a proposal for automatic joint authority over children born in a marriage or registered partnership of two women [introduced 15 March 2000, Parliamentary Papers II 1999/2000, 27 047], and *156 with a proposal to attach more consequences [such as inheritance] to joint authority [not yet introduced]. (56)
Consequently, there will be no automatic parentage for children born to marriages of same-gender couples. (57)
As to the issue of the international aspects that may affect marriages of same-gender couples, the explanatory memorandum stated that:
[a]s the Kortmann-committee has stated (p. 18) the question relating to the completely new legal phenomenon of marriage between persons of the same sex concerns the interpretation of the notion of public order to be expected in other countries. Such interpretation relates to social opinion about homosexuality. The outcome of a survey by the said committee among member- states of the Council of Europe was that recognition can only be expected in very few countries. This is not surprising.
Apart from the recognition of marriage as such, it is relevant whether or not in other countries legal consequences will be attached to the marriage of persons of the same sex.
As a result of this spouses of the same sex may encounter various practical and legal problems abroad. This is something the future spouses of the same sex will have to take into account .... However, this problem of "limping legal relations" also exists for registered partners, as well as for cohabiting same-sex partners who have not contracted a registered partnership or marriage. (58)
*157The Council of State presented a report on the bill (59) and the government responded to this report when it introduced the bill into Parliament. The various political parties issued comments on the bill, to which the government then responded. After three days of plenary debate on the bill in the lower chamber, the members of the lower chamber passed the bill on September 12, 2000, by a vote of 109 in favor and 33 opposed to opening civil marriage to same-gender couples. The bill then proceeded to the upper chamber of parliament where its members discussed the bill for three days. On December 19, 2000, the upper chamber approved the bill (60) and two days later the Queen and the Minister of Justice signed the bill into law. (61) The Dutch parliament then enacted legislation to harmonize existing statutes with the new law opening civil marriage to same-gender couples. (62) Finally, on April 1, 2001, the new law took effect, (63) thereby making the Netherlands the first country in the world to change the legal definition of marriage to include same-gender couples.
*158The court decisions in the United States cases are similar to the Dutch cases, both of which begin with a statutory analysis of each jurisdiction's marriage code. Many of the U.S. decisions, however, also contain substantial constitutional analysis, based on the petitioners' arguments that they have been denied individual rights or subjected to unequal treatment because they were refused marriage licenses. Consequently, the cases in the United States are important because they contain detailed analyses of claims of discrimination and individual rights violations, arguments that are not found in the Dutch cases because the Dutch courts deferred to the Parliament to solve the issue of whether to open marriage to same-gender couples. Thus the U.S. cases become an interesting study of the different ways the various individual rights issues are argued, and decided, by the courts.
In addition, the U.S. marriage cases are examples of the federalist system in operation. All of the courts that denied the petitioners' constitutional claims did so based on an analysis of the federal constitution, in particular, the right to privacy, due process claims, and equal protection concepts that have been developed by the United States Supreme Court. In the other three cases that found in favor of the petitioners' claims of discrimination, however, the courts did so by relying on state constitutional provisions. Because these state constitutions also contain provisions granting rights of privacy, due process, and equal treatment protections, one might expect that the analysis under a state constitutional provision would parallel the federal constitutional analysis. However, the federal constitution only establishes a minimum level of protection for United States citizens. A state's judiciary has the authority to interpret its own constitution more broadly, thereby providing more protection to its citizens from individual rights violations. Also, because the highest appellate court in a state is the final authority on that state's constitution, these decisions cannot be appealed to the more politically conservative United States Supreme Court. Finally, the Tenth Amendment (64) to the United States Constitution reserves certain powers to the states; included in this reservation of power is the right to control family law legislation. Therefore, each state has the authority under this amendment to develop its own family law principles, more or less free from federal intervention. This is particularly true if the family law principles are based on interpretations of a state constitution, granting more protection to the petitioners than is found under the federal constitution.
In order to sort out this state/federal distinction, it is helpful to have an overview of the basic federal constitutional claims that appear in the U.S. case law. The first of these claims falls under a "fundamental right" analysis, based on the right *159 to privacy or on a due process analysis. The second claim is based on an equal protection analysis.
When petitioners argue the first claim, that a statute interferes with their privacy interests or infringes on their due process rights, this claim is based on an assertion that the operation of the statute denies the petitioners a fundamental right. To make a determination of whether a fundamental right is involved, the court analyzes whether the right is "deeply rooted in this Nation's history and tradition," (65) whether it is "implicit in the concept of ordered liberty," (66) and whether it has its "source in the belief that neither liberty nor justice would exist if [the right was] sacrificed." (67) In the U.S. marriage cases, the petitioners argue that marriage statutes prevent them from obtaining a marriage license, thereby denying them the right to marry, which is a fundamental right. Consequently, this denial of the fundamental right to marry infringes on the petitioners' right to privacy and their due process rights.
The claims under the equal protection analysis, however, are more complicated. When a petitioner claims there has been a violation of equal protection rights, then there are different standards of review that the court must apply to decide the constitutionality of the statute. The first issue the court must determine is the basis for the discrimination claim. For example, if the unequal treatment is based on race, alienage, or national origin, the U.S. Supreme Court has designated these classifications "suspect classes" requiring the court to apply "strict scrutiny" to the statute. The statute will be declared unconstitutional unless the state can provide a "compelling state interest" justifying the unequal treatment. The strict scrutiny standard of review is the highest standard established by the U.S. Supreme Court, and most statutes are struck down as unconstitutional under this analysis. On the other hand, if no suspect classification is involved, then the court applies the lowest standard of review, the "rational basis" test. Under this analysis, the petitioner has the burden of showing that the unequal treatment is not rationally related to a legitimate government interest. Generally statutes are upheld as constitutional under this standard of review because the court finds a rational basis for the difference in treatment by identifying a legitimate government interest. There also is a "middle tier" or "intermediate" standard of review that appears in a number of the marriage cases as well. According to this middle-level standard of review, certain classifications are identified as "quasi-suspect" and given "heightened scrutiny," requiring the state to show that the legislative use of the classification "reflects a reasoned judgment consistent with the ideal of equal protection that furthers a *160 substantial interest of the State." (68) In earlier U.S. Supreme Court cases, classifications based on gender and illegitimacy fell within this middle-tier analysis, although more recent cases appear to be moving away from using an intermediate standard of review. (69)
Petitioners in the U.S. marriage cases use two different classifications in their claims of unequal treatment, classifications based on sexual orientation and classifications based on gender. The United States Supreme Court applies the lowest level of review, the rational basis test, to claims of unequal treatment based on sexual orientation. (70) However, if the petitioners allege unequal treatment based on gender, relying on the federal constitution, then some of the judges in the U.S. marriage cases apply the middle-tier analysis. There may be a different result, though, if the gender discrimination claim is based on a state constitutional provision. Because some states have amended their state constitutions specifically prohibiting gender discrimination, then the issue in those cases becomes one of determining whether gender is a suspect class under the state constitution. Consequently, it becomes important when analyzing the constitutional arguments in the U.S. cases to distinguish between an analysis under the federal constitution, as opposed to an analysis under an individual state's constitution.
There are two different periods in United States case law in which same- gender couples have attempted to obtain the right to marry, in the 1970s and the 1990s. In the 1970s, the petitioners alleged that the state's refusal to grant them a marriage license violated federal constitution provisions because, during this time frame, the United States Supreme Court was liberalizing and expanding the application of the Constitution. In particular, the United States courts were involved in protecting the civil rights of racial minorities by striking down, as unconstitutional, *161 racially discriminatory legislation. Among these laws were state statutes that made it a crime for persons of different races to marry one another. (71)
The case of Loving v. Virginia (72) involved an appeal of the conviction of a Caucasian man and an African-American woman under a Virginia penal statute that made it a felony for a "white" person and a "colored" person to marry one another. (73) The Virginia trial court upheld the conviction, basing its decision, in part, on "higher authority" by stating that:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix. (74)
The Supreme Court of Appeals of Virginia also upheld the conviction, citing a previous case in which it had found that Virginia's anti-miscegenations statutes furthered legitimate state purposes, which were "to preserve the racial integrity of its citizens" and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride." (75) In addition, the Virginia appellate court determined that the regulation of marriage was reserved to the states in the Tenth Amendment of the United States Constitution.
On appeal before the United States Supreme Court, the state of Virginia argued that the statute was not discriminatory because it did not treat the races differently-all whites and all "coloreds" were treated equally because neither group could marry the other. Because each group was treated equally, according to this argument, there was no discrimination or unfavorable treatment of either group based on a racial classification and, consequently, no violation of the Fourteenth Amendment Equal Protection Clause.
*162The state of Virginia also argued that, assuming all races are being treated equally, then the Supreme Court must review the constitutionality of the statute using the lowest standard of review, the rational basis test. According to the state's argument, the rational basis was that scientific evidence on interracial marriages "is substantially in doubt" and the U.S. Supreme Court "should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages." (76)
The Supreme Court rejected both arguments and held that the Virginia statute violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution. (77) Concerning the first argument, that the races were being treated equally, the Court stated that it "reject[s] the notion that the mere 'equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, ..." (78) Thus, the statute could not be reviewed under the rational basis test, but rather, a classification based on race must be strictly scrutinized, requiring the state to show a compelling state interest to justify the classification. (79) This the state of Virginia failed to do. The Supreme Court held that because the Virginia statute prohibited only interracial marriages involving white people, the statute was merely "designed to maintain White Supremacy." (80) The Court also found that the freedom to marry "has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness." (81) Consequently, to deny a fundamental right based on racial classifications denied the Lovings of their due process rights. According to the Court:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all of the State's citizens of *163 liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State. (82)
Because the U.S. Supreme Court held that marriage was a fundamental right, this argument would reappear in the cases involving same-gender couples who were seeking the right to marry.
The atmosphere of heightened awareness of individual rights in the 1960s fostered more activism among sexual minorities and, in 1969, contributed to the gay patrons in the Stonewall nightclub resorting to self-defense during a New York City police harassment raid. The Stonewall "riot" became a symbolic event, one which United States sexual minorities identified as the initial step in fighting for their fundamental human rights. Consequently, because of the judicial activism involving racial discrimination, and the consciousness- raising that was occurring among sexual minorities, it was logical that lawsuits to end prohibitions against marriage by same-gender couples would be initiated during this time frame.
In 1971, the Minnesota Supreme Court decided the first United States appellate case involving a same-gender couple's application for a marriage license. (83) Two more cases followed, one in Kentucky in 1973 and another in the state of Washington in 1974. (84) The applicants in all three cases supported their request for a marriage license making two primary arguments. (85) As in the Dutch cases, this first argument involved the statutory interpretation of the language in the marriage statutes. According to the petitioners, they should have been issued marriage licenses because the state statutes did not limit applications for marriage licenses to persons of opposite genders. The three states' appellate courts, however, rejected this argument using the "plain meaning rule" of statutory construction. (86) Under this rule, if a term *164 was not defined in the statute, the court must apply the plain meaning of the term. (87) Both the Minnesota Supreme Court and the Court of Appeals of Kentucky relied on dictionary definitions of marriage to ascertain the plain meaning of the word. (88) According to the legal dictionary cited in both cases, marriage was defined as "a civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex." (89) Although the plain-meaning rule did not require the courts to discern the legislative intent of the drafters when the statutory language was unambiguous, the courts in these cases addressed this argument as well. They discerned the legislative intent of the word "marriage" by examining the language in other statutes involving marriage, (90) in addition to stating that the meaning of the term marriage, historically, was understood to be a legal relationship between persons of opposite genders. (91)
The second issue that the petitioners raised was the argument that limiting marriages to opposite-gender couples violated certain constitutional provisions. The petitioners argued that interpreting the marriage statutes as applying only to opposite-gender couples denied them their fundamental right to marry. In deciding this issue, the Kentucky court held that no constitutional rights were involved, stating "[w]e find no constitutional sanction or protection of the right of marriage between persons of the same sex." (92) The other two appellate courts, however, analyzed and discussed *165 the petitioners' arguments that restricting marriage to opposite-gender couples denied them a fundamental right, violated their right to privacy, and contravened the Equal Protection and Due Processes Clauses of the Fourteenth Amendment to the United States Constitution. (93) The petitioners, relying on the holding in the interracial marriage case of Loving v. Virginia, alleged that, because it was invidious discrimination to deny one the right to marry on the basis of one's race, it followed that it was invidious discrimination to deny one the right to marry on the basis of one's gender. Therefore, a court must apply the strict scrutiny standard of review when dealing with statutes that restricted one's right to marry based on gender classifications.
Although the Court of Appeals of Washington agreed that, under Washington state law, (94) classifications based on gender were inherently suspect and required strict judicial scrutiny, the court refused to accept the argument that the denial of a marriage license to a same-gender couple was gender discrimination. The court stated that the petitioners were not denied a marriage license because of their gender, "rather, they were denied a marriage license because of the nature of marriage itself." The appellate court also cited, with approval, the language in the Court of Appeals of Kentucky case. "In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage." (95)
The Supreme Court of Minnesota used similar logic, relying, interestingly, on the "higher authority" of religious beliefs to support its position, stating that:
The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis .... "Marriage and *166 procreation are fundamental to the very existence and survival of the race." This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which the petitioners contend. (96)
The Minnesota Supreme Court rejected the petitioners' arguments that because opposite-gender persons who could not conceive children were not prohibited from marrying, marriage was more than merely for the purpose of procreation and the raising of children. The court stated that "abstract symmetry" was not required by the Fourteenth Amendment. (97) Finally, the Minnesota Supreme Court distinguished the holding in the Loving v. Virginia case from the facts in a case involving a same-gender couple.
Loving does indicate that not all state restrictions upon the right to marry are beyond the reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex. (98)
In the Washington case, the petitioners raised one additional argument-that limiting marriage to opposite-gender couples discriminated against homosexuals and that treating people differently based on sexual orientation created an inherently suspect classification. (99) Consequently, according to the petitioners, the court should apply the highest standard of review, strict scrutiny, to this classification and require the state to show that the classification furthered a compelling state interest. The court rejected this standard of review, however, and applied the rational basis test in upholding the classification.
For constitutional purposes, it is enough to recognize that marriage as now defined is deeply rooted in our society. Although, as appellants hasten to point out, married persons are not required to have children or even to engage in sexual relations, marriage is so clearly related to the public interest in affording a favorable environment for the growth of children that we are unable to say that there is not a rational basis upon which the state may limit the *167 protection of its marriage law to the legal union of one man and one woman. (100)
The court then quoted from the Minnesota Supreme Court that marriage "is as old as the book of Genesis" and concluded by stating that this "historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which the petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation." (101) Instead, the court deferred to the legislature. "The societal values which are involved in this area must be left to the examination of the legislature .... [A]lthough the legislature may change the definition of marriage within constitutional limits, the constitution does not require the change sought by the appellants." (102)
An analysis of these three cases reveals that, in the early 1970s, claims of marital rights for same-gender couples were, for the most part, inconceivable. The courts could not look beyond the formalistic definition of marriage; in the courts' logic, "the relationship proposed by the appellants does not authorize the issuance of a marriage license because what they propose is not a marriage" (103) and "[a]ppellants were not denied a marriage license because of their sex; they were denied a marriage license because of the nature of marriage itself." (104) However, the definition of marriage in the court decisions contained notions of marriage which were no longer accurate. For example, Black's Law Dictionary definition stated that marriage was a union "in law for life," (105) and yet every state allowed parties to end their marriages through divorce. (106) Also, the courts' reliance on Black's Law Dictionary could be criticized because it defined marriage as a union "for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex."(107) This definition appears to classify one's role in the *168 marriage by one's gender, a concept that was being attacked in other contexts as gender discrimination and unconstitutional. (108) In addition, the courts narrowly defined the purpose of marriage in terms of procreation and survival of the species. There was little or no mention of the cultural, societal, emotional, psychological, familial, or economical advantages of this state-sanctioned relationship. For example, the Court of Appeals of Washington stated that "it is apparent that no same-sex couple offers the possibility of the birth of children by their union. Thus the refusal of the state to authorize same-sex marriage results from such impossibility of reproduction rather than from an invidious discrimination 'on account of sex."' (109) Consequently, the earlier court decisions were unable to "deconstruct" the marriage relationship and ask the deeper questions about the benefits, rights, and obligations the state created in allowing persons to marry. And interestingly, reliance on religious references, which were clearly repugnant when read in the context of justifying prohibitions against interracial marriages, were freely mentioned in these cases.
Since the 1970s, five more United States jurisdictions have addressed the issue of whether same-gender individuals can marry each other. In Hawaii (110) and Vermont, (111) the courts accepted the petitioners' arguments that it is discriminatory to limit marriage to opposite-gender couples, and, in Alaska, (112) a trial court determined that limiting marriage to opposite-gender couples may violate a person's fundamental right to marry. The petitioners in the two other jurisdictions, New York (113) and the District of Columbia, (114) however, were not successful in asserting their rights to marry their same-gender partners.
*169The majority of the 1990s cases were markedly different from their predecessors twenty years earlier. Most notable was that, for the first time, some of the courts were holding that the states' marriage statutes were unconstitutional. Another difference was that the decisions favorable to the petitioners were not based on interpretations of the federal constitution, but based on the interpretations of state constitutions. Finally, it was interesting to note that each of the arguments advanced in the earlier cases was analyzed in the later opinions, and one by one, they were criticized and rejected.
In 1995, the District of Columbia Court of Appeals (115) ruled against a same-gender couple seeking to marry and, a year later in 1996, a trial court in New York (116) joined the D.C. court in denying marriage licenses to same- gender couples. The legal analysis in these two cases was quite similar to both the Dutch cases and the 1970s U.S. cases. In the D.C. case, the three D.C. Court of Appeals judges affirmed the opinion of the trial court, which held that: 1) the statute did not allow same-gender couples to marry, 2) the failure to issue a marriage license to the plaintiffs did not unlawfully discriminate against them under the District of Columbia Human Rights Act, and 3) there was no constitutional right, protected by the Due Process Clause of the Fifth Amendment, (117) for same-gender individuals to marry one another. Although the majority issued its opinion per curium, there was a lengthy concurring and dissenting opinion of Judge Ferren, with the majority being formed by the other two judges concurring in portions of Judge Ferren's opinion. In writing the concurring opinion, Judge Ferren relied on legislative history, rules of statutory construction, and the decisions in the 1970s cases. He began the opinion with an analysis of the statutory language of the marriage statute, which did not have specific provisions limiting marriage to opposite- gender couples. However, unlike the earlier cases in which there was no legislative history addressing the issue of whether the marriage statutes applied to same-gender couples, there was, in fact, legislative history about this issue in the D.C. case. In 1975, the District of Columbia Council *170 considered, but did not adopt, a bill that would have amended the D.C. Code so that it implicitly allowed same-gender couples to marry. (118) Because this amendment was never adopted and there had been no other material amendments to the D.C. marriage statute, Judge Ferren next looked at the intent of the Congress when it enacted the original marriage statute in 1901. (119) Reading the statute with other provisions in the Code, the judge interpreted the word "marriage" to apply only to opposite-gender couples, and that this was the plain meaning of the term at the time the marriage statutes were originally enacted. (120) Judge Ferren also cited the 1970s cases as coming to the same conclusion about the definition of marriage.
Petitioners in the D.C. and New York cases also claimed that the refusal to issue them a marriage license denied them a fundamental right: the right to marry. Once again, both decisions followed much of the same analysis found in the 1970s cases. In determining whether a right "deeply rooted in this Nation's history and tradition" (121) was involved in these cases, the courts asked whether the history and tradition of marriage in the United States included marriages of same-gender couples. Obviously, the answer to that question was "no." Because there was no fundamental right to marry someone of the same gender, the courts held that there were no constitutional violations in limiting marriages to opposite-gender couples. (122)
*171Concerning the petitioners' allegations that they had been denied equal protection of the laws, the New York trial court found that there was no equal protection claim. (123) However, it was on this issue, the denial of equal protection, that Judge Ferren's opinion in the D.C. case departed from the majority and he issued a dissenting opinion. In his dissent, Judge Ferren stated that, although there may not be a fundamental right involved under the due process analysis, there may be violations of the equal protections of the laws, (124) which would require a different type of analysis. The judge examined the attributes of marriage to determine if limiting marriage to a certain group of individuals would invoke an equal protection analysis. In this analysis, he relied on a United States Supreme Court decision that struck down a state statute that forbid prisoners from marrying. Although the Supreme Court acknowledged that, while in prison, prisoners could not engage in the primary purpose of marriage, procreation, the U.S. Supreme Court found there were other important attributes of marriage. These other attributes of marriage included its emotional support, religious or spiritual significance, and governmental and other benefits, such as Social Security, property rights, and inheritance rights. Judge Ferren accepted the idea that these attributes of marriage could apply to same-gender couples and that, in fact, many same-gender couples were forming families through adoption or assisted reproduction, so that even a broader view of procreation could be attributed to same-gender relationships. Because these attributes of marriage attached to both same-gender and opposite-gender couples, Judge Ferren determined that the question of limiting marriage to opposite-gender couples did, in fact, meet equal protection analysis requirements.
Judge Ferren noted that issues of equal protection have different standards of review, depending on the classification involved. In this case, the classification was based on sexual orientation and, therefore, the lower trial court applied the lowest standard of review, the "rational basis" test. In upholding the difference in treatment between opposite-gender couples and same- gender couples, the trial court *172 had given three legitimate state interests that were rationally related to limiting marriage to opposite-gender couples: marriage was for the purpose of procreation, the state could limit marriage to heterosexuals in order to discourage same-sex sodomy and changing the definition of marriage would be "social tinkering with one of the most sacred institutions known to mankind, namely marriage." (125) The trial court's opinion also stated that not only were the three reasons rationally related to a legitimate state interest, but that these reasons were sufficient to show a "compelling state interest" under the highest level of review, strict scrutiny.
Judge Ferren initially agreed that, if the rational basis test was the proper standard of review, then there existed a legitimate state interest to limit marriage to heterosexuals, i.e., to regulate and legitimate the procreation of children. Judge Ferren disagreed, however, that the lowest standard of review should be used in cases involving classifications based on sexual orientation or homosexuality. Instead, he believed the trial court should have investigated the possibility that homosexuals may form a suspect or quasi-suspect class, which would require the government to show a compelling state interest to exclude same-gender couples from marriage.
This investigation required a review of the United States Supreme Court decision of Bowers v. Hardwick, (126) to determine whether the decision in that case, which upheld a state anti-sodomy law, implied that homosexuals were not a suspect or quasi-suspect class. Judge Ferren first pointed out that the decision was based on a due process, fundamental right, analysis, and not on equal protection. The judge noted that under the due process analysis, the focus of the court's inquiry was looking at the past, protecting rights that have traditionally existed in the Anglo-American legal system. The equal protection analysis, however, "is forward-looking; it is intended to invalidate traditions, however long-standing, that become invidiously discriminatory as times change and disadvantaged groups call attention to their treatment." (127) Consequently, even though the Hardwick case allowed a state to outlaw consensual sodomy between homosexuals without violating the due process clause, it did not necessarily follow that a state could prohibit homosexual couples from marrying, while allowing heterosexual couples to do so, without violating equal protection principles. Judge Ferren pointed out that a state also could criminalize heterosexual consensual sodomy under a due process analysis because heterosexual sodomy, like homosexual sodomy, was not "deeply rooted in this Nation's history and tradition." But no one would suggest that by criminalizing heterosexual sodomy, *173 heterosexuals should not be allowed to marry because they might engage in illegal sexual practices within the marriage. And although there might be an argument that consensual heterosexual sodomy may be protected within the confines of marriage under a right to privacy analysis, this analysis only strengthened the denial of equal protection for homosexual couples, who were forbidden from getting married and having the right to privacy protection. (128)
Determining that the Hardwick case (129) did not foreclose an equal protection analysis, Judge Ferren proceeded to apply four factors that a court should examine to determine if homosexuality was a suspect class. The first factor was whether homosexuals as a group have suffered a history of purposeful discrimination. After reviewing past case law and law journal articles that detailed a long and sometimes violent history of discrimination against homosexuals, Judge Ferren stated that no judge could reasonably conclude "that homosexuals have not been the objects of purposeful discrimination." (130)
As to the second factor, whether deep-seated prejudice caused inaccurate stereotypes that did not reflect the class members' abilities, the judge cited one such stereotype-that gay men and lesbians were sexually promiscuous and did not want to "settle down" in long-term, committed relationships to raise families. There was, however, powerful evidence to the contrary because there were millions of gay and lesbian parents, raising children together. (131) Therefore, Judge Ferren could not say that, as a matter of law, gay men and lesbians were not victims of inaccurate stereotyping.
In analyzing the third factor, whether homosexuals were defined as a class by an immutable trait that was beyond a class member's control, Judge Ferren found *174 that there existed conflicting evidence on this factor. Much of the evidence fell along one of two propositions-that homosexuality was biologically determined or that it was learned behavior. Judge Ferren noted, however, that the studies showed sexual orientation was usually set at a very early age and was highly resistant to change. In addition, there was evidence that efforts to change one's sexual orientation could be traumatic and self-destructive. Consequently, sexual orientation appeared to be similar to race, gender, alienage, and national origin, because it was beyond the control of the individual. Since these classifications were protected under the equal protection analysis, the judge believed that sexual orientation also should be granted equivalent protection. (132)
The last factor that was important in determining whether homosexuality was a suspect or quasi-suspect classification was whether the members of the group were a politically powerless minority. In analyzing this factor, Judge Ferren noted that political powerlessness is measured "not only by the extent to which the minority group, for example, is represented in legislative bodies, but also, more subtly, by the extent to which 'deep-seated prejudice' prevents the group's full participation in the political process." (133) The judge pointed out that the trial court actually addressed this issue in its opinion stating that "homosexuals today are not so lacking in political power as to warrant enhanced constitutional protection. Witness, for instance, the recent passage by the City Council and signing by the Mayor of the Domestic Partnership Bill. Gays and lesbians are, in the 1990's, a political force that any elective officeholder may ignore only at his or her peril." (134) However, since the trial court decision, the United States House of Representatives essentially vetoed the domestic partnership legislation by preventing the District of Columbia from spending any money on the legislation. And contrary to what the district court stated, the District of Columbia Delegate said that there was no support for the domestic partnership legislation because members of Congress feared they would not be re-elected if they supported the bill. (135) In addition, the judge pointed out that voters in Colorado and Cincinnati had passed legislation in attempts to prevent the adoption of any legislation that would prohibit discrimination against homosexuals. *175 Finally, noting that gays can "pass" as straight and that many are "in the closet" because of prejudice against them, Judge Ferren recognized the particular powerlessness of homosexuals in this context, quoting from a recent law review article by John C. Hayes. "Prejudice effectively silences homosexuals and renders them unable to counter and remedy invidious government discrimination caused by that prejudice. Public officials sympathetic to the plight of homosexuals, or themselves [closeted] homosexuals, are also silenced by fear of damage to their political futures." (136) Consequently, Judge Ferren believed homosexuals also lacked political power, the fourth characteristic necessary for them to be considered a suspect or quasi-suspect class.
Given these conclusions about classifications based on homosexuality, Judge Ferren stated that the case should have been sent back to the trial court for the purpose of hearing evidence on whether the state could show a compelling or substantial interest in prohibiting marriages of same-gender couples. Judge Ferren pointed out, however, that the state would succeed in this showing only if it could prove by reliable evidence that prohibiting same- gender couples from marrying would actually deter persons from adopting homosexual conduct, assuming that conduct was deemed "anti-social" and the state had a compelling interest in deterring it.
That is to say, if the government cannot cite actual prejudice to the public majority from a change in the law to allow same-sex marriages, such as a predictable increase in antisocial homosexual behavior, then the public majority will not have a sound basis for claiming a compelling, or even substantial, state interest in withholding the marriage statute from same-sex couples; a mere feeling of distaste or even revulsion at what someone else is or does, simply because it offends majority values without causing concrete harm, cannot justify inherently discriminatory legislation against members of a constitutionally protected class-as the history of constitutional rulings against racially discriminatory legislation makes clear. (137)
Therefore, Judge Ferren dissented from the majority opinion concerning the equal protection analysis. Because he repeatedly saw the need for taking more facts in this case, he would have sent the case back to the trial court for a determination on *176 the issue of whether classifications based on homosexuality should be examined at a higher standard of review under the equal protection analysis.
Regardless of Judge Ferren's in-depth dissent, the end result of the D.C. case, as well as the New York trial court case of Storrs v. Holcomb (138) was that the refusal to issue marriage licenses to same-gender couples was not a violation of due process, equal protection nor a denial of a fundamental right.
Unlike the District of Columbia and New York cases, which ruled against the petitioners by applying federal constitutional analyses, the three cases that accepted the petitioners' discrimination arguments have a much different focus, relying on state constitutional analyses instead. In both the Hawaii and Alaska cases, the court interpreted the petitioners' rights of privacy and equal protection rights under the state constitution, and, in the recent Vermont case, the Vermont Supreme Court applied the Common Benefits Clause of the Vermont Constitution, a clause that does not exist within the federal constitution. Consequently, Hawaii and Alaska cases can be analyzed simultaneously, but the Vermont case needs separate consideration.
The Hawaii case of Baehr v. Lewin (139) (later known as Baehr v. Miike (140) ) and the Alaska case, Brause v. Bureau of Vital Statistics, (141) were the first United States cases to accept the petitioners' arguments that the denial of marriage licenses to same-gender couples may be impermissible discrimination. In both cases, the *177 petitioners alleged violations of state constitutional provisions guaranteeing the right to privacy and the equal protections of the laws based on gender classifications. What was significant about the state constitutions in both Hawaii and Alaska was that, unlike the United States Constitution which does not have a specific provision guaranteeing the right to privacy, (142) both the Hawaii and Alaska state constitutions have the right to privacy written specifically into their state constitutions. (143) In addition, both state constitutions have provisions that specifically prohibit unequal treatment based on gender. (144) Consequently, the issue before the Hawaii and Alaska courts was whether the right to privacy, and the equal protection of the laws based on gender classifications, would be interpreted more broadly under the state constitutional provisions than under a federal constitutional analysis.
The Hawaii case started in 1991 when the plaintiffs filed suit against the Director of the Hawaii Department of Health, claiming that "to deny same-sex couples access to marriage licenses violates the plaintiffs' right to privacy, as guaranteed by article I, section 6 of the Hawaii Constitution , as well as to the equal protection of the laws and due process of law, as guaranteed by article I, section 5 of the Hawaii Constitution ." (145) The trial court found that "the right to enter into a homosexual marriage is not a fundamental right" protected by the Hawaii Constitution under the right of privacy and because homosexuals were not members of a suspect class, there was no denial of equal protection rights under the Hawaii Constitution because the state had met its burden of showing a rational basis for limiting marriage to opposite-gender couples. (146) Consequently, the trial court granted judgment on the pleadings to the defendant. (147)
On appeal to the Hawaii Supreme Court the issue was a procedural one-whether, as a matter of law, the defendant was entitled to a judgment on the pleadings. In other words, the appellate court asked whether "it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim that would entitle them to relief under any alternative theory [of law]." (148) The five judges on the *178 Hawaii Supreme Court who handled this case did not form a majority in issuing a decision. Two judges formed the plurality decision (hereinafter referred to as the plurality), written by Judge Levinson, in which the case was remanded to the trial court for the purpose of taking evidence on the equal protection claim. A third judge concurred with this plurality, agreeing that issues of facts remained in the case. Therefore, the concurring judge joined the part of the plurality decision that held the trial court's judgment on the pleadings was reversible error and the case should be remanded for trial. Two other judges dissented, issuing an opinion that was similar to the opinions in the earlier cases in the 1970s.
Writing the plurality opinion, Judge Levinson first addressed the right to privacy issue, noting that, although the Hawaii Constitution has a specific right to privacy, this right had been interpreted as comparable to the right to privacy that emanated from the federal constitution. Consequently, the Hawaii courts would look to the federal cases to interpret whether the right to privacy's recognition of the fundamental right to marry applied in the situation involving same-gender couples seeking to marry one another. In deciding this issue, the Hawaii Supreme Court found that no fundamental right was involved because marriages of same-gender couples was not a right rooted in tradition and the collective conscience of the citizens. Therefore, a denial of this right would not violate principles of liberty and justice. (149)
In the Alaska case, however, the Alaska superior court disagreed with the way that the Hawaii court had stated the issue under the fundamental right analysis. The Alaska judge agreed that it was self-evident that permitting marriages of same-gender couples was not a traditional and deep-rooted right in the United States, however, "[t]he relevant question is not whether same-sex marriage is so rooted in our traditions that it is a fundamental right, but whether the freedom to choose one's life partner is so rooted in our traditions. Here the court finds that the choice of a life partner is personal, intimate, and subject to the protection of the right to privacy ...." (150) According to the Alaska judge, because a fundamental right was involved, the highest standard of review, strict scrutiny, would apply. Consequently, the state would be required to show a compelling state interest in order to restrict such an important and personal decision as choosing one's life partner. The judge also stated that, even if the marriage statutes had not infringed on a fundamental right, restricting marriage to opposite-gender couples also implicated the Alaska constitution's equal protection provision, which specifically prohibited unequal treatment based on gender. (151)
*179 The plurality judges in the Hawaii case also found that the refusal of marriage licenses may be discriminatory behavior under the equal protection analysis of the Hawaii Constitution. (152) The plurality opinion first noted that the benefits of marriage, which was a state conferred status, were significant and the opinion listed fourteen specific benefits that existed only within the marital relationship. (153) These benefits of marriage included preferred treatment under tax law, inheritance laws, child custody and support laws, spousal support laws, wrongful death laws, and social security and pension laws. The Hawaii Attorney-General, who represented the defendant, the Director of the Department of Health, relied on the 1970s cases to argue that same-gender partners were not being discriminated against because of their gender, but because it was not biologically possible for same-gender couples to marry. The plurality was not persuaded by this statement of the issue; the plurality judges found that it was a circular and unpersuasive argument to say that a same-gender couple cannot marry because the definition of marriage means a union of a man and a woman. As the judges aptly pointed out, before the United States Supreme Court decided the Loving v. Virginia case, marriage also was defined as a status that could not be acquired by persons of different races. (154) Just as the Virginia courts were incorrect in stating that the right to marry did not extend to interracial couples because "custom and God" did not intend for them to exist, the plurality judges believed that the same argument was unpersuasive in the case of same-gender couples. The plurality opinion stated that "we do not believe that trial judges are the ultimate authorities on the subject of Divine Will, and, as Loving amply demonstrates, constitutional law may mandate, like it or not, that customs change with an evolving social order." (155)
Because the plurality judges found that the marriage statute was a gender-based classification, the remaining issue was establishing the standard of review the trial court should apply in determining whether this gender-based classification violated the equal protection clause. The plurality opinion pointed out that the United States Supreme Court had not, as yet, found gender to be a suspect classification which would require the highest level of review, strict scrutiny. The federal constitution, however, did not have provisions that specifically prohibited *180 unequal treatment based on gender. The Hawaii Constitution, on the other hand, had two provisions that specifically mentioned discrimination based on gender. These provisions were the equal protection clause (156) and a provision known as the Equal Rights Amendment (ERA), which stated that "[e]quality of rights shall not be denied or abridged by the State on account of sex." (157) In addition, in one of the United States Supreme Court cases that dealt with gender discrimination, a majority of the justices intimated that the highest standard of review, strict scrutiny, would apply to gender classifications if the federal constitution contained an ERA. (158) Based on these two reasons, the plurality determined that the gender-based classifications in the marriage statute should be strictly scrutinized and, unless the defendant could show a compelling state interest justifying the unequal treatment, the statute should be struck down as unconstitutional.
The plurality also rejected the argument that the marriage statute was not discriminatory because both genders were treated equally; i.e., if all females were prevented from marrying females and all males were prevented from marrying males, then both genders were being treated equally. The plurality opinion pointed out that this argument was rejected in Loving v. Virginia, when applied to racial classifications. In that case, the Virginia Attorney General had argued there was no impermissible racial classification because both races were being treated the same, i.e. all whites could only marry whites and all "coloreds" could only marry "coloreds," therefore the races were being treated equally. The plurality quoted the decision in Loving, in which the U.S. Supreme Court held, "the fact of equal application does not immunize the statute from the heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race." (159) According to the plurality, by substituting the word gender for race and substituting the Hawaii Equal Protection Clause for the Fourteenth Amendment, one reaches exactly the same result in this case as the United States Supreme Court reached in Loving. Finally, as to the dissent's claim that this issue should be left to the legislature to determine, Judge Levinson responded that "[t]he result we reach today is in complete harmony with the [[United States Supreme] Court's observation that any state's powers to regulate marriage are subject to the constraints imposed by the constitutional right to the equal protection of the laws." (160) Consequently, a majority of the judges on the Hawaii Supreme Court ordered the *181 case back to the trial court, requiring the state to justify the marriage statute's classification based on gender. (161)
Three years later, (162) Judge Chang presided over the trial of this case, (163) noting that the Hawaii Supreme Court had directed that on "remand, in accordance with the 'strict scrutiny' standard, the burden will rest on [the defendant] to overcome the presumption that [the Hawaii marriage statute] is unconstitutional by demonstrating that it furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgements of constitutional rights." (164) Pursuant to this directive, the defendant argued in his pre-trial memorandum the following:
The State of Hawaii has a compelling interest to promote the optimal development of children .... It is the State of Hawaii's position that, all things being equal, it is best for a child that it be in a single home by its parents, or at least by a married male and female .... The marriage laws further the compelling state interest of securing or assuring recognition of Hawaii marriages in other jurisdictions .... The marriage law furthers the compelling state interest in protecting the public fisc from the reasonably foreseeable effects of approval of same-sex marriage. (165)
To support these statements of compelling state interests, the defendant presented testimony through four expert witnesses, three of whom the trial court found to be credible. (166) All three of these witnesses testified that the optimal development of children was in an intact family, being raised by their mother and father. However, the first two witness agreed that single parents, adoptive parents, lesbian mothers, gay fathers, and same-gender couples can, and do, create stable family environments and raise healthy and well-adjusted children and that gay and *182 lesbian couples can, and do, make excellent parents. Both witnesses also testified that same-gender couples should be allowed to adopt children and provide foster care. Although the first witness testified that same-gender relationships did not provide the same learning model or experience for children as a mother and father because there was little information about one of the genders, the witness also testified that same-gender parents raised children who have a clear gender identity.
The second witness also testified that persons married as a "gateway to becoming a parent" and that marriage was synonymous with having children; however, he admitted that persons married without intending to have children, that the inability to have children did not weaken the institution of marriage and that persons should not be prohibited from marrying because they could not have children. In addition, both the second and third witnesses (167) testified that children should not be denied benefits such as health care, education or housing because of the status of their parents. The second witness further stated that children of same-gender couples would be helped if their families had the benefits of marriage such as tax advantages, inheritance rights, payment of child support, the right to sue for wrongful death and welfare payments. He also agreed that it would be helpful for children of same- gender couples if their families received the social status that accompanied marriage.
Although the petitioners did not have the burden of proof at trial, they presented four expert witnesses as well. (168) All four expert witnesses supported the testimony of the defendant's witnesses that gay and lesbian parents and same-gender couples were fit parents and that sexual orientation was not an indicator of parental fitness. For example, the first witness, who was one of the leading experts on children raised in same-gender households, testified that she did not believe children should be denied benefits and protections because of the status of their parents. In addition, she testified that opening marriage to same-gender couples would not dishonor marriage, but would have a positive impact on marriage and society in general.
*183 The second witness had studied eighty families who conceived a child through the services of a sperm bank; fifty-five of the families were headed by lesbian mothers and the other twenty-five were headed by heterosexual couples. The research had reached three conclusions:
(1)[A]s a group, the children born as a result of donor insemination were developing normally;
(2) sexual orientation of the parents was not a good predictor of how well children do in terms of a child's well-being and adjustment; and
(3) irrespective of their parents' sexual orientation, children who live in a harmonious family environment had better reports from parents and teachers. (169)
The third witness testified that, because the current evidence was that lesbian and gay parents were providing warm and loving environments, same- gender parents should be allowed to adopt. This witness, who is an expert on adoptive families, was asked what his opinion was on the defendant's position "that we somehow need to identify a best family for children, or as between mothers and fathers, we have to pick a best parent." (170) The expert responded:
I find it offensive because it tends to suggest that there's only one way of being a parent. It excludes all nonbiological parenting which would be adoptive parenting, stepparenting, foster parenting, parenting by gay and lesbians. It suggests that there are some additional issues that come with some of these nontraditional families that should be reason for excluding rather than taking that information and using it not in a punitive way but in a proactive, kind of supportive way to help families deal with the inevitable issues that come up in life. And there are going to be some unique issues in varying forms of family. But to talk about one form of family that is best, I find that, you know, truthfully offensive and a distortion of the research literature. (171)
The witness concluded by stating that there was no reason related to the promotion of the development of children that would support a position of preventing same-gender couples from marrying.
*184 The petitioners' final witness was a pediatrician who treated adolescents, including a number of children who lived in households headed by homosexual parents. The doctor testified that these parents raised children who were just as healthy as children with heterosexual parents. The doctor admitted that some teenagers in these families have experienced embarrassment, distress or have had a difficult time because of their nontraditional family structure. He went on to say, however, that "they get through these periods. And, if anything, I think they grow stronger through that experience. They learn about life. They learn about diversity .... The research confirms that-that teenagers get through this period." (172) This last witness also testified that the health, development, and adjustment of children in same-gender relationships would be benefitted if the couple could marry.
After summarizing the testimony of the witnesses, Judge Chang's decision set out numerous findings of fact and conclusions of law. Many of the findings of fact addressed the defendant's assertion that there was a compelling state interest in prohibiting same-gender couples from marrying because the optimal development of children would be adversely affected. The court's findings, however, were that the sexual orientation of parents was not an indicator of the overall adjustment and development of children, that same-gender individuals were allowed to adopt children and provide foster care, and that these couples could provide children with a nurturing relationship and a nurturing environment that was conducive to the development of happy, healthy, and well-adjusted children.
Because of these findings, the trial court held that the defendant had failed to establish a causal link between allowing same-sex marriage and adverse effects upon the optimal development of children. In fact, the court found just the opposite. "Contrary to Defendant's assertions, if same-sex marriage is allowed, the children being raised by gay or lesbian parents and same-sex couples may be assisted, because they may obtain certain protections and benefits that come with or become available as a result of marriage." (173) Consequently, the trial court stated that the defendant had failed to show a compelling state interest that would overcome the presumption that the Hawaii marriage statute was unconstitutional because it discriminated against same-gender couples by using an impermissible classification based on gender. In addition, the court held that, even if the defendant had proved that limiting marriage to opposite-gender couples promoted a compelling state interest, the defendant failed to show that the marriage statute was narrowly written to avoid unnecessary violations of constitutional rights. (174)
*185 Although Judge Chang issued a ruling that enjoined the defendant from denying the plaintiffs an application for a marriage license, he stayed his ruling, pending the defendant's appeal of the judgment to the Hawaii Supreme Court. Pending the appeal, however, the Hawaii legislature passed a proposed amendment to the Hawaii Constitution which stated that "The legislature shall have the power to reserve marriage to opposite-sex couples." (175) In an election on this amendment in November of 1998, Hawaii citizens approved this amendment to the Constitution, by a margin of sixty-nine percent to twenty-nine percent. (176) Shortly thereafter, the Hawaii Supreme Court requested the parties in the Baehr case to file supplemental briefs explaining the effect of the marriage amendment on the disposition of the case. Thirteen months later, on December 9, 1999, the Hawaii Supreme Court unanimously reversed the trial court's holding that the marriage statute was unconstitutional and entered judgment for the defendant. In doing so the court held that:
[t]he marriage amendment validated [the Hawaii marriage statute] by taking the statute out of the ambit of the equal protection clause of the Hawai'i Constitution, at least insofar as the statute, both on its face and as applied, purported to limit access to the marital status to opposite-sex couples. Accordingly, whether or not in the past it was violative of the equal protection clause in the foregoing respect, [the marriage statute] no longer is. In light of the marriage amendment, [the Hawaii marriage statute] must be given full force and effect. (177)
Consequently, the Hawaii Supreme Court reversed the first American case to hold that it was discriminatory to deny same-gender couples a marriage license, and no marriage licenses were ever issued to the petitioners, who had filed the lawsuit nine years earlier. (178)
*186 In Alaska, the voters also enacted a similar constitutional amendment to prevent the lawsuit challenging the Alaska marriage statute from proceeding to the appellate level. The amendment provided that "To be recognized in this State, a marriage may exist only between one man and one woman." (179) In November of 1998, the amendment was enacted by the citizens of Alaska with sixty-eight percent of voters in favor of upholding traditional marriage, as opposed to thirty-two percent opposing the constitutional amendment. (180) The constitutional amendment effectively overrode the trial court's decision, thus ending the Alaska lawsuit.
The Vermont Supreme Court has been the most recent court to rule on the issue whether same-gender couples have a right to marry one another. This case carried particular interest because six years earlier the Vermont Supreme Court became the first appellate court in the United States to interpret its state's adoption code to allow a same-gender co-parent to adopt her lesbian partner's biological children without affecting the parental rights of the biological mother. (182) In other words, the Vermont Supreme Court held that its interpretation of the Vermont adoption code allowed a same-gender co-parent adoption, resulting in the children having two mothers and no father.
With this background, it is not surprising that the petitioners' first argument involved issues of statutory interpretation. Because the marriage statute did not contain gender-specific language, the petitioners alleged that the statutory language did not limit marriages to opposite-gender couples and same-gender couples could be issued a marriage license. The Vermont Supreme Court, similar to all the other *187 courts in which this argument was made, rejected this interpretation of the marriage statute. Applying the plain- meaning rule, the court found that the common understanding of the word marriage was limited to opposite-gender couples. The court also rejected the petitioners' invitation to interpret the marriage code in a similar fashion to the court's interpretation of the adoption code-that the code should be read broadly to include same-gender relationships. The court distinguished the adoption case, holding that the overriding concern of the adoption code, the best interests of the child, allowed the court to interpret the adoption code's language to effect that concern and grant the adoption.
We are not dealing in this case with a narrow statutory exception requiring a broader reading than its literal words would permit in order to avoid a result plainly at odds with the legislative purpose. Unlike [the adoption case], it is far from clear that limiting marriage to opposite-sex couples violates the Legislature's "intent and spirit." Rather, the evidence demonstrates a clear legislative assumption that marriage under our statutory scheme consists of a union between a man and a woman. (183)
Petitioners' next claim was that limiting marriage to opposite-gender couples violated the Common Benefits Clause of the Vermont Constitution. (184) The Vermont Supreme Court began its discussion of this claim by a detailed analysis distinguishing the Common Benefits Clause of the Vermont Constitution from the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. Although some of the Vermont Supreme Court decisions in the past had appeared to follow the Fourteenth Amendment analysis of applying differing standards of review to determine if a statute violated the equal protection clause, (185) the Vermont Supreme Court used this case as an opportunity to create a specific and distinct analysis under *188 the Common Benefits Clause, separate and apart from a Fourteenth Amendment equal protection analysis.
First, the court noted that the Fourteenth Amendment was enacted to prohibit the denial of equal rights. The Common Benefits Clause, however, was enacted to prevent favoritism and the conferring of advantages to privileged groups. Consequently, the Fourteenth Amendment's language was premised on preventing exclusion, but the Common Benefits Clause was based on the principle of inclusion. "Thus, at its core the Common Benefit Clause expressed a vision of government that afforded every Vermonter its benefit and protection and provided no Vermonter particular advantage." (186) In addition, although the Vermont Constitution of 1777 abolished slavery in another provision, the framers were principally concerned with equal access to public benefits and protections for the community as a whole, not granting specific civil rights to distinct minorities. "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." (187)
The Vermont Supreme Court then set out the standard that it would use under a Common Benefits Clause analysis. First, the court must define the group of Vermont citizens who were being excluded from the benefits and protections that the state provided to all other citizens. Next, the court must examine the government's purpose in making a classification that included some members of the community but excluded certain other citizens. Finally, the court must determine whether the exclusion of this group of citizens from the benefits of the challenged law "bears a reasonable and just relation to the governmental purpose." (188) In making this determination, the court may take into consideration three factors: "(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." (189)
The court then proceeded to apply this new standard to the exclusion of same-gender couples from the marriage statute. It first identified the excluded group under the marriage statutes as persons who wish to marry someone of the same gender. Then the court set out several of the governmental purposes advanced by the state-to further the link between procreation and child- rearing, and to promote a permanent commitment between couples who have children, ensuring their children were considered legitimate and were receiving continued parental support.
*189 As to the first governmental purpose, the state argued that the legislature could use the marriage statutes "to send a message that procreation and child-rearing are intertwined." In other words, the state claimed that by recognizing marriages of same-gender couples who cannot conceive children on their own, the state would separate "the connection between procreation and parental responsibility for raising children" and would "advance the notion that fathers or mothers are mere surplusage to the functions of procreation and child-rearing." (190)
In analyzing this stated governmental purpose, the court found that many opposite-gender couples marry without intending to have children and for numerous reasons unrelated to procreation. Therefore, the Vermont Supreme Court found the statute to be under-inclusive. The court also cited studies that found between 1.5 to 5 million children were residing with their lesbian mothers and that a significant number of gay men and lesbians were raising children in same-gender couple households. In addition, the Vermont legislature had amended the state's adoption statute to allow same-gender couples to adopt children together. Given these facts, the Vermont Supreme Court found that the marriage statute excluded same-gender couples who were no different from opposite-gender couples. In fact, "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 exclusion treats persons who are similarly situated for purposes of the law, differently." (191) Finally, the court noted that the highest percentage of persons using assisted reproduction were married heterosexual couples who "cannot conceive children on their own," yet the "State does not suggest that the use of these technologies undermined a married couple's sense of parental responsibility, or fosters the perception that they are 'mere surplusage' to the conception and parenting of the child so conceived." (192)
The court then turned to the nature of the benefits that were being denied to same-gender couples because they cannot marry. The court noted that marriage was a state-created institution that had significant public benefits and protections, listing fifteen of these significant benefits. Consequently, because of these significant benefits, coupled with "the extreme logical disjunction" between limiting marriage to opposite-gender couples and the stated purposes of the statute, the Vermont Supreme Court held that limiting marriage to opposite-gender couples failed to meet the burden of being "grounded on public concerns of sufficient weight, cogency, and authority that the justice of the deprivation cannot seriously be questioned." (193)
The state made several other arguments in opposition to opening civil marriage to same-gender couples. One argument was that the state had an interest in *190 maintaining heterosexual marriages so that child rearing was done in a setting that provided both male and female role modeling. Although the court conceded that it was conceivable that the legislature might "conclude that opposite-gender couples might offer some advantages in this area," the state's argument was fundamentally flawed. Because the Vermont legislature had recently enacted legislation to allow same-gender co-parent adoptions, it could be inferred that the Vermont legislature did not accept the argument that child rearing should take place in only opposite-gender households. As to the state's argument that the legislature had an interest in maintaining uniformity with other jurisdictions, the court noted that Vermont was one of the few states that allowed first-cousin marriages and the fact that it was the only state that had specific legislation authorizing same-gender co- parent adoptions refuted the state's argument that the legislature was acting with this interest in mind.
Finally, the state made the argument 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 protection to individuals who commit to a permanent domestic relationship." (194) The court rejected this claim for two reasons. First, the court noted that "to the extent that state action historically has been motivated by an animus against a class, that history cannot provide a legitimate basis for unequal application of the law." (195) Second, the recent history of legislative action concerning homosexuals contradicted the state's assertion. The Vermont legislature had enacted legislation decriminalizing same-gender sexual contact, providing anti-discrimination protections in employment, housing, and public services based on sexual orientation, establishing sexual orientation as a category protected against hate-motivated crimes, allowing same-gender co- parent adoptions and providing legal rights and protections for same-gender couples and their children if their domestic relationships broke down. (196) Consequently, the court found that the state failed to provide reasonable and just bases for continuing to exclude same-gender couples and their children from the benefits that come from marriage. (197)
*191 Having found that limiting the benefits of marriage to opposite- gender couples violated the Common Benefits Clause, the Vermont Supreme Court issued a ruling that the petitioners were entitled to obtain "the same benefits and protections afforded by Vermont law to married opposite-gender couples." As a result, the court instructed the Vermont legislature to enact legislation that achieved this goal, but the court left it to the legislators to determine how to accomplish this result-whether to open up civil marriage to same-gender couples or to create a parallel or equal institution, such as domestic partnerships or registered partnerships, which would provide the same benefits and protections as marriage. The court also retained jurisdiction over the case, to permit the legislature to consider and enact legislation consistent with the constitutional mandate issued in the case. If the legislature failed to provide the same benefits and protections to same-gender couples, however, the court stated that the petitioners could petition the court to order the remedy they had originally sought-a marriage license. The court concluded its decision with the following:
The extension of the Common Benefits Clause to acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity. (198)
One of the interesting features of the Vermont case was that the dissenting opinion (199) had quite a different focus than the dissent in the Hawaii Supreme Court case of Baehr v. Lewin six years earlier. The dissenting justices in the Hawaii case disagreed that the marriage statutes were discriminatory. In the Vermont case, however, Justice Johnson, who concurred and dissented, agreed that the marriage statute was discriminatory, but she argued the marriage statute engaged in gender *192 discrimination. Consequently, she would have used the "heightened scrutiny" analysis, which the Vermont Supreme Court applied to gender classifications. Not only would Justice Johnson have found that the state failed to meet its burden under this intermediate standard of review, but she also contended that the state's asserted interests in maintaining heterosexual marriage failed under an analysis of the most lenient standard of review, the rational basis test. (200) Most importantly, Justice Johnson became the first appellate judge in the United States who directly stated that the petitioners must be issued marriage licenses. She criticized the majority decision because it fell short of an appropriate remedy. According to Justice Johnson, the only acceptable remedy, once discrimination was present, was to order the issuance of the marriage license to the petitioners.
Based on the directive of the Vermont Supreme Court, in April of 2000, the Vermont legislature created the parallel institution of "civil unions" to provide same-gender couples equal benefits that are enjoyed by married heterosexual couples. (201) Consequently, even though the Vermont Supreme Court found the marriage statute unconstitutional, the end result was not the opening of marriage to same-gender couples, but the creation of a parallel institution, similar to registered partnerships in the Netherlands. Questions remain, however, whether any legislation, other than opening civil marriage to same-gender couples, can create a truly equivalent institution to heterosexual marriage, and whether a "separate but equal" system can withstand future constitutional challenges. (202) Arguments also have been made that because many rights and benefits are tied to the words "marriage," "married," or *193 "spouse," it is impossible to create a perfectly parallel institution that has a different name. (203)
There are several conclusions that can be drawn from an analysis of the United States cases in which petitioners challenge statutes that limit marriages to heterosexual couples. Initially, it appears that the outcome of the cases can be influenced by how the judges define the term marriage. If the judges define marriage as a legal institution into which only a man and a woman can enter, then the judges dismiss the petitioners' challenge "because what they propose is not a marriage" (204) and "[a]ppellants were not denied a marriage license because of their sex; they were denied a marriage license because of the nature of marriage itself." (205) However, other judges criticize this method of analysis, labeling the logic as tautological, circular, and unpersuasive. These judges argue that it is the very definition of marriage itself that is being challenged and define the marital relationship as a state-created and state-sanctioned status, contract, or legal institution, which confers benefits and rights to its parties. With this broad definition, it is more likely that the judges will find that denying marriage to same-gender couples is discriminatory.
This analysis can be repeated should the petitioners argue that they are being denied due process of the law, resulting from the violation of the right to privacy or a fundamental right. If the judges define that right narrowly by asking the question whether there is a fundamental right to a "same-gender marriage," then the argument fails. However, if the judges define the right to marry broadly, such as the right to *194 choose one's life partner or the right to receive the state-conferred benefits that flow from marriage, then it is more likely the judges will find a violation of this right.(206)
Another characteristic of these cases is that they are analyzed on differing theories of equal protection. Some of the judges view the claim as a gender discrimination claim, and, depending on the state constitution, determine whether gender is a suspect classification, requiring the highest level of review, strict scrutiny. Other judges view the claim as discrimination based on sexual orientation, which different judges have analyzed under each of the three levels of review-the lowest level of the rational basis test, the intermediate level of heightened scrutiny, or the highest level of strict scrutiny (by finding that homosexuality is an immutable characteristic). Even if some judges agree on the level of review, this does not mean there will be any agreement on whether the governments' stated interests in maintaining marriage as a heterosexual institution will be analyzed in the same fashion. For example, some judges state that even if the marriage statute is subjected to strict scrutiny, the state nonetheless has met its burden of proving a compelling state interest, justifying the exclusion of same-gender couples from marriage, because of the link between marriage and proc