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36 Conn. L. Rev. 1439
Connecticut Law Review
Summer, 2004
Note
APPROACHING SAME-SEX MARRIAGE: HOW SECOND PARENT ADOPTION CASES CAN HELP COURTS
ACHIEVE THE “BEST INTERESTS OF THE SAME-SEX FAMILY”
Eleanor Michaela1
Copyright © 2004 by the Connecticut Law Review; Eleanor Michael
I. INTRODUCTION
The public perception of gay men and lesbians in the United States has changed dramatically in recent times. As one
commentator observed:
I was born the year after the Stonewall riots, in 1970. That was also the year of “The Boys in the Band,” a
movie that depicted gays as lisping, suicidal freaks. It all seems very far away from 2003, which even
without the gay-marriage ruling might fairly have been called the Year of the Queer—as in, “... Eye for
the Straight Guy.”1
Not only has the public perception of gay men and lesbians changed considerably, but so too has their access to legal rights
and recognition. In the nineties, gay rights activists primarily pursued second-parent adoption rights through the courts.2 Now
the focus of the movement has shifted to attaining the right to marry.
Vermont and Massachusetts are two of the most progressive states in this effort to attain legal rights for same-sex families.
Vermont has been the primary battleground for gay rights issues during the last decade, 3 and its decisions on gay rights issues
often serve as a precursor to Massachusetts’s decisions on similar issues. Same-sex couples recently brought actions in both
Vermont and Massachusetts each seeking a declaratory judgment that the states’ refusals to issue them marriage licenses
violated their respective state Constitutions. In Baker v. Vermont,4 the court reasoned that same-sex couples could not be
denied the benefits and protections of *1440 marriage.5 In response to this decision, the Vermont legislature created civil
unions to grant gay men and lesbians the functional rights of marriage instead of granting them the right to marriage itself. 6 In
the Massachusetts decision, Goodridge v. Department of Public Health,7 the court drafted a more comprehensive opinion that
looks at not only the functional benefits and protections of marriage, but also at the social benefits that flow from a marital
relationship.8 Although the Massachusetts court’s opinion is seemingly more thorough than its Vermont predecessor and the
State is scheduled to begin issuing marriage licenses on May 17, 2004, the fate of same-sex marriage in Massachusetts is still
unclear.9
In order to prevent legislative maneuvers that frustrate the effort to attain same-sex marriage, same-sex marriage advocates
should look to prior decisions that grant rights to gay men and lesbians to determine what types of strategies and legal
arguments are most effective.10 Adoption proceedings *1441 are one realm in which same-sex couples have had success
securing legal rights. Therefore, these decisions may be instructive as to how courts should strategically draft legal arguments
for the protection of gay and lesbian couples and families. Both Vermont and Massachusetts courts granted same-sex couples
the right to second-parent adoption in 1993.11 In these second-parent adoption decisions, the courts reasoned that the
adoptions should be granted because they provide both functional rights and social benefits for the families involved. The
courts’ recognition of both the functional rights and the less tangible social benefits of adoption is evident in the courts’
comprehensive “best interests of the child” standard that has been effective in attaining parental rights for lesbians and gay
men. In fact, courts deciding same-sex marriage decisions should draw strategic lessons from the use of both rights-based and
social-benefit arguments in the adoption context to draft more comprehensive same-sex marriage decisions.
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
Part II of this comment defines the two approaches used in second-parent adoption cases and describes how they should be
utilized in same-sex marriage decisions. A discussion of the status of rights for same-sex couples and families in the United
States follows in Part III, which gives a brief background on the institutions of adoption, civil unions and marriage. Part IV
sets forth the proposition that the second-parent adoption decisions in Vermont and Massachusetts were successful because of
the comprehensive approach the courts used in granting second-parent adoption rights to same-sex couples. An evaluation of
the potential harm flowing from Vermont’s “civil union” approach to granting marriage-like rights to gay men and lesbians is
contained in Part V. Part VI discusses how Massachusetts’s same-sex marriage approach is more successful than Vermont’s
approach because it is more like the adoption rulings, and is therefore more comprehensive. Finally, Part VII concludes that
legal recognition should be granted to same-sex families through a comprehensive same-sex marriage approach similar to
that found in the adoption rulings, rather than through a functional approach as done in Vermont, as creation of any
alternative status inherently implies that gay men and lesbians are second-class citizens. *1442
II. DEFINITION AND APPLICATION OF THE “RIGHTS-BASED” AND “SOCIAL-BENEFIT” APPROACHES
A. Definitions
Prior to substantive analysis, it is important to define the terms that will be employed in this argument. This section will
define what “rights-based” and “social-benefit” approaches are and how they may be combined to create a “comprehensive
approach” addressing the rights of same-sex couples. In addition, this section will discuss how these rationales may be
applied to adoption and marriage decisions, and why this type of analysis is important.
“Rights-based” and “social-benefit” rationales are terms that apply in both the adoption and marriage context 12 and are a
useful tool in analyzing how courts grant legal rights to same-sex couples. Rights-based rationales focus on the functional
rights gained from either marriage or adoption. Such functional rights are very often economic-based benefits and protections
derived from marriage and adoption, and for this reason, they may also be referred to as “functional” or “economic-benefit”
rationales. Examples of rights-based rationales for adoption are that adopted children are more financially secure because
they gain inheritance rights13 and they are entitled to child support if the couple separates. 14 Similarly, examples of
rights-based rationales for marriage are that married couples receive more tax and health benefits from both the federal and
state governments than non-married couples, and they also receive more private benefits, such as discounts at museums and
clubs.15
Social-benefit rationales, on the other hand, are reasons given by courts that are typically non-economic in character, and
instead emphasize less tangible social benefits that an individual derives from adoption or marriage. Examples of social
benefits that courts have noted that children derive from adoption are the positive effect that consistency and commitment
have on a child’s growth and development, and the unique filial tie that *1443 adoption preserves if a couple separates.16
Social-benefit rationales often used by the courts in the marriage context, on the other hand, include the social benefit couples
derive from the removal of the perceived second-class status of civil-unions and the comfort couples gain in having access to
a title for their relationship that is unambiguous and recognizable. 17
In addition to these two types of reasoning, I will use the term “comprehensive approach” to refer to opinions in which courts
use both rights-based and social-benefits rationales. The primary example of a comprehensive approach is the “best interests
of the child” standard used in the adoption context.18 When courts apply comprehensive approaches, they are more likely to
recognize that legal rights such as marriage and adoption consist of more than the sum of their legal protections, and thus
they are more likely to grant equal rights to gay men and lesbians.
B. Overview: Application of the Approaches
Vermont and Massachusetts both granted the right to second-parent adoption to gay men and lesbians using a comprehensive
“best interests of the child” approach before addressing whether to recognize the relationship between the child’s same-sex
adoptive parents.19 Second-parent adoption is a common way for same-sex couples to jointly adopt a child. Under this
adoption method, a gay or lesbian biological parent’s partner may adopt the child without the requirement that the biological
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parent give up any parental rights or responsibilities, as is usually the case under traditional adoption statutes.20 In the
Vermont and Massachusetts adoption cases, both courts use both rights-based and social-benefit rationales in applying the
“best interests of the child” standard, as will be described in Part IV.
Although the states both used a comprehensive standard in granting second-parent adoption, the states’ reasons for
recognizing same-sex couples’ rights to “marriage” differ greatly from one another. The Vermont court uses a much more
rights-based analysis than the Massachusetts court. When same-sex couples sued the State of Vermont demanding marriage
licenses, the state responded with a functional remedy: the creation of civil unions. 21 Civil unions are an alternative status
created by the Vermont legislature to give same-sex couples the same state benefits and protections *1444 that opposite-sex
couples receive through marriage.22 The Vermont court ignored the social benefits gained from granting marriage-like rights
to same-sex couples, and focused instead primarily on the more tangible rights and benefits gained by the decision, as will be
discussed later.
While civil unions were a huge step forward toward legal recognition of same-sex couples, they have been criticized heavily
as a weak alternative to marriage that inherently creates a second-class status for same-sex couples, for there is no such thing
as “separate but equal.”23 After the Vermont civil union decision, a Massachusetts court recognized “the inherent
contradiction ... [in] allow[ing] same-sex couples to establish legal relationships with their children but not with each other.” 24
When same-sex couples sued the Massachusetts Department of Public Health in order to obtain marriage licenses, the court
responded by using both rights-based and social-benefit rationales in calling for a more comprehensive remedy that grants
same-sex couples the same status as opposite-sex couples.25 The Massachusetts legislature has yet to determine what sort of
remedy it will create to meet the Supreme Judicial Court’s mandate. 26
Although marriage and adoption are very different issues, lessons may be drawn in trying to craft legal recognition for
same-sex couples from the success gained by using both rights-based and social-benefit arguments in the adoption context.
The adoption cases used both rights-based and social-benefit rationales to endorse a more amorphous “best interests of the
child” standard. This standard requires a determination as to what is in a child’s best interest based on the particular facts of
each adoption case.27 Courts should use a “best interests of the family” standard to craft marriage-like rights for same-sex
couples as well. Although the functional approach initially proved useful in gaining marital-like rights for gay men and
lesbians in Vermont, it is now clear that it may be more harmful than helpful because by granting same-sex couples an
alternative status, it inherently treats them as second-class citizens. A comprehensive standard is necessary in the marriage
cases because civil unions do not meet the complex needs and “best interests” of same-sex families.
*1445 III. LEGAL CONFIGURATIONS OF “FAMILY”
The application of rights-based and social-benefit approaches is useful because it helps illuminate how courts have granted
same-sex couples equal rights and whether they are likely to do so in the future. As legal definitions of “family” are
changing, it is important to track where and how these changes occurred in order to understand what types of analysis will be
most effective in the future.
The law traditionally recognizes two configurations of family based on two different relationships: (1) parent-child families
and (2) marriage. This section discusses traditional definitions of family and addresses how those definitions have changed
over the last decade. Historically, gay men and lesbians have been excluded from both types of relationships that create a
“family” as it is legally defined. In the early nineties, however, same-sex couples were granted the right to jointly adopt in
both Vermont and Massachusetts.28 In addition, the Vermont legislature granted same-sex couples the statutory rights and
benefits of marriage through the creation of civil unions in 2000, 29 and the Massachusetts Supreme Judicial Court held that
same-sex couples may not be denied the right to marry under the Massachusetts Constitution in 2003. 30 An examination of
adoption, marriage, and civil unions helps clarify both how the legal definition of “family” is changing to include gay men
and lesbians, and why these institutions still remain problematic.
A. Adoption
One traditional way that family is defined is through the parent-child relationship. Although this relationship is generally
created through a biological relationship, courts have also recognized a parent-child relationship created through adoption.
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Adoption has been defined as the legal equivalent of biological parenthood, 31 and has also been characterized as a status
created by the state acting as the “sovereign parent.”32 Although adoption serves numerous purposes, two of its principal
functions are to protect the rights of the parties involved 33 and to provide the child a stable and secure environment. 34
*1446 One form of adoption currently available in certain jurisdictions to gay men and lesbians is “second-parent adoption.”
Second-parent adoption is a judicially created adoption method derived primarily from the stepparent adoption model, where
a stepparent is allowed to adopt a biological child of his or her spouse. 35 Second-parent adoption was necessary because
stepparent adoption is not available to gay men and lesbians, as they do not have the legal right to marry. 36 In second-parent
adoption, a child may be adopted by his or her legal parent’s non-marital partner, without requiring the first partner, who is in
some cases the child’s biological parent, to give up any parental rights or responsibilities. 37 In jurisdictions that do not permit
gay couples to adopt, often one partner will either legally adopt or conceive a child through alternative methods and the other
partner will try to adopt the child through this second-parent adoption method.38
Although second-parent adoption is gaining acceptance, it is generally easier for a gay individual to adopt a child than it is for
a same-sex couple to adopt together.39 Adoption is considered a statutorily granted privilege rather than a fundamental right. 40
Therefore, couples or individuals wishing to adopt must meet both the procedural requirements for adoption, as dictated by
state statutes, and the adoption must be in the “best interests of the child,” as calculated by judges and social services
personnel.41
1. Procedural Requirements
State statutes governing adoption contain numerous procedural requirements, including statutory restrictions on who is
eligible to adopt. In second-parent adoption cases, the courts must first consider whether the adoption statute allows adoption
by two unmarried adults. Some statutes provide that any adult may adopt, regardless of marital status, while other states
provide that adoptive parents must be “reputable persons.” 42 Next, where one of the parties is a biological parent, the court
must consider whether such an adoption would terminate the biological parent’s parental status. 43 The highest state courts of
Vermont and Massachusetts, among *1447 others, have expressly permitted lesbians and gay men to adopt the children of
their partners without the legal parental rights of their partners being extinguished. 44 These rulings reflect the theory that such
a termination of rights would be contrary to both the intention of the petitioners and the best interests of the child. 45 At least
one state court, however, found that excluding gay men and lesbians from being adoptive parents does not violate the due
process clause, any substantive right to privacy, or any right of freedom of association provided by either the State or Federal
Constitution.46
2. “Best Interests of the Child” Standard
Once the procedural requirements of the applicable adoption statutes have been met, then a factual determination as to the
best interests and welfare of the child is usually undertaken. 47 Courts have permitted same-sex couples to adopt children in all
but a few states by using this “best interests of the child” standard. 48 What is in the child’s best interest is based on the
particular facts of each case.49 “The best interests standard is an elusive guideline that belies rigid definition”50 and the factors
that may be considered in making this determination are numerous. 51 Although it is unclear *1448 what weight should be
given to the different factors in determining the child’s best interest, it is clear that the test is much more than an assessment
of the social status and economic well-being of the parents.52 Among the most important criteria for determining the best
interests of a child are the social benefits the child may derive from stable, continuous and loving relationships. 53
Some jurisdictions hold that a child’s best interests are not determined by parental sexual orientation; however, other
jurisdictions have held that sexual orientation of the petitioner is appropriate to consider. 54 In general, cases involving a
homosexual parent “will be determined more than anything else by the state in which [the person] live[s] and the judge who
hears their case.”55 Where adoptions by gay men and lesbians are allowed, courts have sometimes held that the sexual
orientation of the petitioners was merely one factor to be considered and that it would only prevent an adoption if it were
shown to adversely affect the child.56 On the other hand, courts have also indicated that where the child is already living with
the petitioners, an adoption would not create a traumatic change in the child’s living situation, and therefore would be in the
child’s best interest.57 In sum, although sexual orientation may be considered by some states in determining whether to grant
an adoption petition, the parent-child definition of family in many areas has expanded to allow more equal rights for
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same-sex couples.
*1449 B. Marriage
While the law has expanded the parent-child definition of family to include adoption rights for gay men and lesbians,
changing the marital definition of family to include legal rights for same-sex couples has proven more problematic. The line
drawn between families created by parent-child relationships and those created by marriage is not always so bright. For
example, some claim that marriage originated in ancient Mesopotamia 5000 years ago as a way to anchor men into the
mother-child family.58 In other words, it provided a way to combine the “parent-child” family and the “marital” family.
Today, legal marriage is a basic right59 and is traditionally viewed as a state-defined contract60 that is distinct from other kinds
of contracts because the state regulates it61 and has an interest in it.62 For this reason, some courts have described marriage as a
state-conferred legal status rather than a contract.63
From providing a means to tie men to the mother-child family to becoming the state-conferred legal status we know today,
marriage has proven to be a resilient institution that has undergone much change over time. 64 Recent statistics indicate that
marriage continues to evolve. Since the 1960s, marriage rates have been on the decline, while divorce, cohabitation, and
unwed birth rates have been increasing.65 Although these statistics indicate that the definition of marriage is changing,
currently no states allow legal marriage for same sex partners, 66 as the term “marriage” ordinarily means a relationship
between a man and a woman, therefore excluding *1450 same-sex unions.67 Since several favorable rulings in Hawaii,68
Alaska,69 and Vermont,70 however, legislators have scrambled to enact laws to prevent legal recognition of same-sex
marriages.71 These legislators fear that a successful suit demanding legal marriage status for same-sex marriages would
require all other states to honor that marriage license under the Full Faith and Credit Clause of the Constitution. 72
In order to prevent such an outcome, state legislatures have enacted three different statutory requirements to prevent
same-sex marriage: definitional foreclosure, withholding validity, and explicit prohibition. 73 In states that use a definitional
foreclosure model, legislation is typically enacted with language that proclaims, “[m]arriage is a legal relationship between a
man and a woman.”74 Some states have adopted laws that explicitly refuse to recognize any marriage between same-sex
individuals.75 Finally, other states have embraced statutory language that declares, “[m]arriages between two individuals of
the same sex ... are prohibited.”76 A total of thirty-seven states have adopted such laws or constitutional provisions.77
In addition to actions taken by state legislatures, the federal government has made efforts to exclude gay men and lesbians
from legal marriage by enacting the Federal Defense of Marriage Act (“DOMA”), which “define[s] and protect[s] the
institution of marriage” by defining “marriage” as the legal union between one man and one woman as husband and wife. 78 If
states were to grant marriage licenses to same-sex couples, DOMA would allow other states to refuse recognition of these
relationships and the act also explains that the term “marriage” excludes same-sex marriage in the context of federal
enactments.79 There have not yet been any judicial decisions determining the constitutional validity of the federal DOMA or
its *1451 state counterparts.80
Although no states currently recognize the right of legal marriage between same-sex couples, the Massachusetts Supreme
Judicial Court recently handed down a decision that will require the Commonwealth to grant marriage licenses to same-sex
couples.81 In addition to Massachusetts, two Canadian provinces have granted same-sex couples the right to marry.82 While
statistics indicate that marriage has changed considerably over time, the movement to change the institution’s legal definition
to include same-sex couples has been met with much resistance, causing some states to create alternative forms of protection
for same-sex couples.
C. Civil Unions
Several states and countries have created alternatives to marriage for same-sex couples. One commentator refers to these
marriage-like arrangements as “Marriage Lite.”83 For example, European countries have been experimenting with different
forms of marriage for over ten years.84 Scandinavian countries such as Norway and Denmark started registered partnerships,
and France has “civil solidarity pacts,” which can be dissolved by either party on three months notice. 85 Similarly, several
states in the United States have also created marriage-like unions that provide benefits and protections to same-sex couples,
such as civil unions in Vermont.
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There are several examples of “Marriage Lite” currently functioning within the United States, including domestic partner
registration in California,86 reciprocal beneficiaries in Hawaii,87 and civil unions in Vermont.88 Civil unions were created by
the Vermont legislature after the Vermont Supreme Court ruled in Baker v. Vermont89 that the state must give same-sex
couples the same benefits and protections that opposite-sex couples receive through marriage.90 A civil union legally makes a
couple “next-of- *1452 kin” rather than “legal strangers,”91 and provides important benefits relating to abuse, adoption,
custody, discrimination, compensation, family leave, health care, insurance, lawsuits, property, probate, state tax, and
testimony.92
Although civil unions have conferred many rights on same-sex couples, they are limited in several ways. Civil unions do not
cover immigration rights, social security, federal taxes, tax-free situations, and more than 1042 federal laws that are triggered
by legal marriage.93 Civil unions are not portable,94 for they have not been recognized by any state other than Vermont. 95 In
addition, no other state may dissolve a Vermont union, and one must be a resident of Vermont for at least one year in order to
have a dissolution enacted.
Aside from the fact that civil unions lack certain economic rights, many argue that by creating an entity entirely separate from
marriage, the courts have effectively created a new form of apartheid, for as the Supreme Court held in Brown v. Board of
Education,96 there is no such thing as “separate but equal.”97 Perhaps due to the circumscribed benefits of civil unions, fewer
couples than expected have taken advantage of them.98 As of November 2002, 4979 unions had been issued in Vermont, 4203
of which were for out-of-state residents.99
Although courts have made much progress toward the goal of treating gay men and lesbians as equals under the law, many
decisions have been problematic, and have failed to rid same-sex couples and families of their second-class stigma. The
Massachusetts Supreme Judicial Court decision holding that same-sex couples may not be denied the right to marry under the
Massachusetts’s Constitution100 is the closest that a decision has ever come to treating same-sex couples as equal to their
opposite-sex counterparts. This decision was in part so effective because the court employed rationales that recognized both
the functional benefits and social benefits of marriage, and thus crafted a comprehensive opinion similar to those found in the
second-parent adoption cases that were decided a decade earlier.
*1453 IV. THE ADOPTION DECISIONS: A COMPREHENSIVE APPROACH
Same-sex families were legally recognized through their parent-child family relationships ten years earlier than their
marriage-like family relationships were ever acknowledged. That is not to say that these families came easily upon the right
to adoption. Gay men and lesbians were effectively excluded from becoming adoptive parents until 1973.101 However, since
then, the number of gay and lesbian parents has risen significantly. 102 This section first discusses the increase in gay and
lesbian parenting and how adoption rights have come to represent an indirect route to marriage equality for same-sex couples
in the United States.103 Next, this section examines court decisions in Vermont and Massachusetts that have been effective in
granting second-parent adoption to same-sex couples, concluding that they have been successful because they use both
rights-based and social-benefit reasoning to determine the best interests of the child.
A. Historic Exclusion of Gay Men and Lesbians from Adoption
State courts commonly barred gay and lesbian individuals from holding a parenting role through adoption until
homosexuality was removed from the American Psychological Association’s list of mental disorders in 1973.104 The first
cases allowing adoptions by openly gay and lesbian persons occurred in 1987, and since then, courts have been increasingly
willing to acknowledge that gay and lesbian households constitute families. 105 In the 1990s, gay rights activists focused their
legal strategy upon gaining the right to second-parent adoption for gay men and lesbians.
Since Vermont became the first state to approve same-sex co-parent adoptions in 1993, at least seven other jurisdictions have
approved second-parent adoptions by the same-sex partners of biological or adoptive parents.106 “Statutory obstacles have
been overcome either by ignoring them in the name of public policy, by reconceptualizing petitions as applications for joint
adoption by unmarried couples, or by creative statutory construction whereby coparent adoption is deemed functionally
equivalent to stepparent adoption.”107 The “surge of interest” by gay men and lesbians in having children has forced state
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courts to struggle with the reality of gay and lesbian adoption. 108
*1454 B. The “Gay Baby Boom”
It is difficult to know how many gay and lesbian parents there are in the United States. 109 It is evident, however, that gay
couples are increasingly producing families despite their inability to marry, creating what has become known as the “gay
baby boom.”110 There are innumerable public policy,111 social science,112 and legal reasons113 not to restrict gay adoption.
However, given that the number of gay parents is increasing, 114 adoption is particularly important to protect children in
families with same-sex parents from financial and social insecurity, as the protections of marriage that normally serve these
functions are not available. Amy Zimmerman, a gay parent, explains, “[w]e did not want to wait for gay marriage to happen
[to have children.]”115 The mainstreaming of gay life has made adoption less controversial, and the number of gay men and
lesbians pursuing adoption has put the issue at a turning point, as “[c]hildren are a far more visible part of gay culture.” 116 As
some gay parents point out, raising children is a bigger commitment than marriage, particularly considering the current
divorce rate.117
Although children of same-sex parents are increasingly protected through adoption laws, many contend that “one of the
driving forces behind the push for marriage has been the fact that so many [gay men and lesbians] are having kids.” 118 In this
sense, adoption rights may represent an indirect route to marriage equality in the United States. As courts that have permitted
second-parent adoption have noted, children of same-sex couples should be granted the same rights and responsibilities as the
children of married couples to prevent state policy from disadvantaging them based on their parents’ sexual orientation.119 In
other words, “the sex of the *1455 parents should not interfere with the child’s ability to receive the numerous legal and
emotional benefits enjoyed by a child of a married couple.” 120
C. The Second-Parent Adoption Decisions in Massachusetts and Vermont
1. Overview
Not surprisingly, two of the first states to recognize the importance of the right to adoption for gay men and lesbians were
Vermont and Massachusetts. Further, the Massachusetts and Vermont decisions granting a biological parent’s same-sex
partner the right to second-parent adoption are very similar because they both focus on the comprehensive “best interests of
the child” standard.121 In applying this standard, courts use both a rights-based approach and a social-benefit approach.122 A
“financial well-being” approach in the adoption context focuses on the practical benefits, as measured in dollars and cents,
which a child would experience from being raised by a same-sex couple versus an opposite-sex couple. The social-benefit
approach, on the other hand, looks at less easily quantifiable benefits that a child derives from being adopted by a particular
couple, such as the importance of consistency and commitment in a child’s life. Both the Vermont and Massachusetts
second-parent adoption cases employing this comprehensive approach were decided nearly a decade before the marriage
cases were brought, yet the comprehensive approach remains an effective strategy for gaining rights for same-sex families
today.
2. Vermont—Adoption of B.L.V.B.
The first Vermont opinion granting gay men and lesbians the right to second-parent adoption through use of the
comprehensive “best interests of the child” standard was handed down in 1993.123 In Adoption of B.L.V.B., the Vermont
Supreme Court granted the appellant, Deborah, the right to legally adopt her partner Jane’s children while leaving Jane’s
parental rights intact, thus legally recognizing their existing status as co-parents.124 The probate court read the “step-parent”
exception of the Vermont adoption statute to mean that if a couple adopted together, they must be married. 125 However, the
Vermont Supreme Court reversed its decision, holding *1456 that the legislature did not mean to limit the categories of
persons entitled to adopt.126
The court achieved a conclusion in favor of second-parent adoption by using both rights-based and social-benefit arguments
to meet the comprehensive best interests of the child standard. The court’s use of these approaches is demonstrated in an
excerpt it quoted from a similar New York second-parent adoption decision: “Social fragmentation and the myriad
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configurations of modern families have presented us with new problems and complexities that can not be solved by idealizing
the past. Today a child who receives proper nutrition, adequate schooling and supportive sustaining shelter is among the
fortunate, whatever the source.”127
The first segment of the quote is indicative of a rights-based analysis because it focuses on the functional benefits of granting
the adoption, such as the fact that the child receives food and shelter. The court placed additional emphasis on substantive
rights when it explained that the general purpose of the statute is not to forbid adoptions by certain combinations of people,
but rather to clarify and protect the legal rights of the child. The quote from the New York decision shifts focus as it
continues:
A child who also receives the love and nurture of even a single parent can be counted among the blessed.
Here this Court finds a child who has all of the above benefits and two adults dedicated to his welfare,
secure in their loving partnership, and determined to raise him to the very best of their considerable
abilities. There is no reason in law, logic or social philosophy to obstruct such a favorable situation.128
This portion of the quote demonstrates that the court was also making the social-benefit argument that in addition to the
tangible financial benefits of being part of this family, such as having food to eat and a roof over one’s head, it is also
important to have the less tangible social benefits of love, support and commitment.
Further, the court reasoned that the State’s primary concern is to promote the welfare of children, and that although same-sex
partners were probably not considered when the adoption statute was originally drafted, it cannot be said that they are either
prohibited or allowed.129 The court explained that the “best interests of the child” test has led courts in other contexts to allow
a mother’s partner to adopt the child without terminating the mother’s rights, again suggesting that the bond between a
mother and child *1457 provides a unique social benefit that should not be overlooked. 130
Finally, although the court declined to explicitly comment on the legitimacy of the same-sex couple’s relationship, asserting
that “we are not called upon to approve or disapprove of the relationship between the appellants,” 131 this decision inherently
legitimizes the relationship between the appellants. The court validated both the couple’s relationship and the family unit
through its holding that it is a positive atmosphere in which to rear children. In conclusion, the court used both
financial-benefit and social-benefit approaches in holding that to deny children of same-sex couples the security of a legally
recognized relationship with their second parent serves no legitimate state interest,132 and that the State’s primary concern
should be with the effect of laws on the quality of children’s lives. 133
3. Massachusetts—Adoption of Tammy
The Massachusetts Supreme Judicial Court similarly approved the right to second parent adoption in Adoption of Tammy134 by
using both rights-based and social-benefit arguments in order to determine the best interests of the child. In that case,
plaintiffs Susan and Helen filed a joint petition to adopt Tammy, Susan’s biological daughter. 135 The Massachusetts court,
similar to the Vermont court, held that there was nothing in the law of the Commonwealth that would prevent the adoption,
and determined that the primary purpose of the Massachusetts adoption statute is to establish, and act on, the best interests of
the child.136
The Massachusetts court placed a heavy emphasis on the financial well being of both Susan and Helen, and, consequently,
the financial well being of Tammy. This emphasis is particularly evident in the factual section of the court’s decision. The
court focused on the petitioners’ socio-economic status, finding relevant the fact that the couple bought a house together in
Cambridge, and that both women are physicians specializing in surgery and have held positions on the faculty of Harvard
Medical School.137 The court noted that one of the women has a private practice and the other is a national expert on breast
cancer, the director of the Faulkner Breast Center, and a surgical oncologist at the Dana Farber Cancer Institute. 138 The court
*1458 explained that both women are financially committed to Tammy,139 and that aside from “emotional security and current
practical ramifications which legal recognition” of the family would provide the child, adoption is also important so that
Tammy would be able to inherit from Helen.140 If Tammy was not adopted, Helen’s share of three irrevocable family trusts
might pass to others. Although Susan and Helen established a “substantial” trust fund for Tammy, it is small in relation to her
potential inheritance from family trusts.141
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The Massachusetts court elaborated that there is a social benefit both to the child and to society from having children in
committed adoptive families, regardless of the gender of the parents. 142 In determining that second-parent adoption provides a
social benefit, the court held that “[t]here is nothing on the face of the statute which precludes the joint adoption of a child by
two unmarried cohabitants....” 143 The court concluded that construing the statute in this way enhances, rather than defeats, the
purpose of the statute, which is to advance the best interests of the child. 144
The court also reasoned that adoption by Susan and Helen would benefit Tammy socially because while some adoptions
uproot children from their current living situations and schools, this adoption would promote consistency, and would not
result in any tangible changes in Tammy’s daily life.145 This portion of the Supreme Judicial Court’s decision is unique
because it acknowledges that same-sex families exist regardless of whether the state sanctions them or provides legal
protection, and admits that there are social benefits for children who are a part of these families. The court concluded that
adoption will provide Tammy with a significant legal relationship that may be important in her future, including allowing
Tammy to preserve her unique filial ties to Helen in the event that Helen and Susan separate, or Susan predeceases Helen. 146
The Massachusetts court, similar to the Vermont court, also held that Susan’s legal relationship to Tammy did not need to be
terminated if Tammy is adopted. The section of the adoption statute requiring that the natural parent relinquish the child for
adoption was not intended to terminate a natural parent’s legal relationship with her child when the natural parent is a party to
the adoption petition. Rather, the section was designed for the situation when the child’s natural parents have decided to
relinquish *1459 the child for adoption.147 It is not uncommon for a natural parent to join in the adoption petition of a spouse
who is not the child’s natural parent,148 and this portion of the ruling again acknowledges that that there is a social benefit
conferred in maintaining a child’s legal ties with his or her biological parent.
The use of both rights-based and social-benefit reasoning by the Massachusetts court proved effective in creating a
comprehensive analysis that helped same-sex couples gain equal rights in the realm of adoption law, as it did in neighboring
Vermont. Susan and Helen’s adoption of Tammy will provide her with both the functional and intangible benefits of
adoption. Despite this gain, however, she will still be deprived of the many benefits derived from having parents who are
legally married.
D. Second-Parent Adoption Is Not an Adequate Alternative to Legal Marriage
Although both the Massachusetts and Vermont courts effectively recognized parent-child relationships in same-sex families,
the decisions do not effectively address the exclusion of gay men and lesbians from the second type of legally defined
“family”: families created by marriage. The Vermont decision Adoption of B.L.V.B. and the Massachusetts decision Adoption
of Tammy have provided an effective means to protect and provide for the “best interests” of same-sex couples’ children.
However, there is an “inherent contradiction ... [in] allow[ing] same-sex couples to establish legal relationships with their
children but not with each other.”149
Although the second-parent adoption decisions recognized adoption rights for same-sex couples, these decisions are not an
adequate substitute for the recognition of a legal right to marriage. Many legal benefits that a child gains through marriage
may be attained through adoption and other types of contracts. Adopted children of non-married parents, however, are still
disadvantaged financially and socially relative to children of married parents. These children are financially hurt by the fact
that same-sex families must pay extra money to go through legal proceedings to gain rights that would automatically be
conferred through marriage.150 Time and money spent on these types of efforts means that there is inherently less time and
money spent on other important expenses and investments such as the child’s education, clothing, and recreation. 151 In
addition, adoptive *1460 children of same-sex couples are socially disadvantaged because they must bear the stigma of
having non-married parents.152
Despite the fact that the adoption decisions are not an adequate substitute for legal marriage, they provide a useful analytical
framework that incorporates both rights-based and social-benefit rationales upon which legal marriage decisions should be
modeled in order to provide comprehensive solutions that do not stop short of equality. When courts do not employ a
comprehensive approach in evaluating issues related to same-sex marriage, courts risk leaving too much room for legislatures
to craft alternative solutions like civil unions, which perpetuate the perceived second-class status of same-sex couples.
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V. CIVIL UNIONS: VERMONT’S RIGHTS-BASED APPROACH
The civil union decision of the Vermont Supreme Court is flawed because, unlike the adoption decisions, it focused entirely
on functional reasons for marriage to the exclusion of important intangible benefits. As a result, the court stopped short of
granting equal rights to same-sex couples. This section will explain how rights-based approaches are limited because
although they provide legal rights to gay men and lesbians, these approaches are arbitrary, subjective, and ultimately do not
often result in equal rights for same-sex couples.153 It will argue that the court’s opinion in Baker allowed the Vermont
legislature’s creation of civil unions because it used a rights-based analysis. Such an analysis suggested that the functional
rights conferred through marriage are more important than the social benefits it provides.
A. Limitations of the Rights-Based Approach
The rights-based approach abounds in U.S. courts, as “American courts have demonstrated a willingness to recognize
same-sex relationships tacitly without granting them official approval.” 154 Rights-based court decisions “recognize the
marriage-like qualities of same-sex relationships in all but name, and, in many cases, arise not just out of constitutional
principles of equal protection and fundamental notions of fairness, but also out of a pragmatic recognition that times have
changed ....”155 Courts have granted same-sex partners guardianship rights and worker’s compensation benefits, have allowed
partners to assume one another’s last names and to contest inheritance rights, and have granted same-sex partners parental
rights and responsibilities.156
*1461 The flexibility of the rights-based approach to gaining legal rights for same-sex couples and families presents an
opportunity for courts to provide legal recognition where they otherwise would not. However, this approach is insufficient as
a long-term solution to gaining legal recognition for same-sex couples because it is arbitrary and subjective.157 Functionalism
“per-petuates the second-class status of same-sex couples, leaving them uncertain as to their rights and responsibilities and
denying them the symbolic ‘recognition of shared humanity’ that accompanies the legalization of marriage.” 158
A decade ago, gay rights activists employed functional tactics with some success in the realm of second-parent adoption.
Activists attempted to leverage their success by using the same types of rights-based arguments that worked in the adoption
cases in the realm of same-sex marriage. However, in so doing, they neglected important social-benefits arguments. This
rights-based approach resulted in the functional solution of civil unions. The Vermont case indicated that on the issue of
same-sex marriage, courts will likely give to plaintiffs no more than exactly what they ask for.
B. The Vermont Legislature’s Rationale and its Shortcomings
In the landmark case of Baker v. Vermont,159 the Vermont Supreme Court held that under the Common Benefits Clause of the
Vermont Constitution, same-sex couples may not be deprived of the statutory benefits and protections afforded persons of the
opposite sex who choose to marry.160 The court found that the State is constitutionally required to extend common benefits
and protections that flow from marriage under Vermont law to same-sex couples.161 The court concluded that whether these
rights are granted through inclusion in the marriage laws or through a parallel “domestic partnership” system or some
equivalent statutory alternative is a decision for the Legislature. 162
When the Vermont Supreme Court announced its ruling in Baker, the plaintiffs’ lawyers at the Gay and Lesbian Advocates
and Defenders (“GLAD”) did not know whether they had won or lost. 163 As one lead attorney explained, “I had never heard
of segregating the word marriage from its rights and protections.” 164 In holding that plaintiffs may not be deprived of the
statutory benefits and protections afforded persons of the *1462 opposite sex who choose to marry, the court took a step
toward granting legal recognition for gay men and lesbians by giving the plaintiffs the functional protections and benefits of
marriage. In response to the court’s ruling, the Vermont legislature created “civil unions,” which offer a vastly improved
range of protections for same-sex couples who live in Vermont.165 This bill went into effect on July 1, 2000, and included
many protections never before available to same-sex couples in the United States.166 However, by allowing the legislature
room to create a “domestic partnership” system or some other statutory alternative, the court inherently conferred a
second-class status on same-sex couples by granting them something less than marriage.
The Baker decision epitomizes a rights-based approach to gaining legal recognition for same-sex couples. The fact that the
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court embraced this type of functional approach is evident from the beginning of the opinion. Although originally the
plaintiffs sought a declaratory judgment that the refusal to issue them a marriage license violated the marriage statutes and the
Vermont Constitution, the court construed their claim very narrowly to read, “May the State of Vermont exclude same-sex
couples from the benefits and protections that its laws provide to opposite-sex married couples?”167
The court focused on the plaintiffs’ claim to secular benefits and protections and did not comment on the “symbolic or
spiritual significance of the marital relation” or other such intangibles. 168 For example, the court emphasized functional rights
by stating that “access to a civil marriage license and the multitude of legal benefits, protections, and obligations that flow
from it significantly enhance the quality of life in our society.” 169 The court suggested that it is the rights and obligations of
marriage, rather than the intangible social benefits derived from being in a committed relationship, that improve one’s quality
of life.
The court continued to focus on rights while providing the historical background for this decision, stating that “[e]arly
decisions recognized that a marriage contract ... represents much more [than other civil agreements] because once formed, the
law imposes a variety of obligations, protections, and benefits.” 170 After asserting that “marriage laws transform a private
agreement into a source of significant public benefits and protections,” 171 the court listed the benefits and protections that
come with a marriage license *1463 under Vermont law.
The court also highlighted the legal rights and protections that children derive from having married parents. The court
acknowledged that a significant number of children are being raised by same-sex parents,172 and reasoned that “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.”173 In conclusion, the court found “a constitutional obligation to
extend to plaintiffs the common benefit, protection, and security that Vermont law provides opposite-sex married couples. It
remains only to determine the appropriate means and scope of relief compelled by this constitutional mandate.” 174
In terms of a remedy, the court stated that this case would not deal with whether the denial of a marriage license is per se the
denial of a constitutional right because the plaintiffs’ claims and arguments focused on the consequences of official exclusion
from statutory benefits, protections, and security incident to marriage. 175 Although the court explicitly stated that the holding
is not that plaintiffs are entitled to a marriage license, the court suggested as a remedy for the state to create a “registered
partnership act” that would establish an alternative legal status to marriage. 176 The Vermont court took a functional approach
to granting legal recognition to the same-sex couple.
The Baker decision is flawed because it focuses too much on functional reasons for marriage and ignores marriage’s
important intangible benefits. Rights-based approaches are imperfect because they “leav[e] [gay men and lesbians] uncertain
as to their rights and responsibilities and deny[] them the symbolic ‘recognition of shared humanity’ that accompanies the
legalization of marriage.”177 The Baker opinion allowed the creation of civil unions because its exclusive use of rights-based
rationales implied that the functional benefits and protections of marriage are more important than the social benefits it
provides. In broadening its opinion to include rationales that recognize the social benefits of marriage, the Vermont court
would have written a more comprehensive opinion similar to the adoption decisions drafted years earlier. Such an opinion, as
exemplified by the Massachusetts Goodridge decision, would have prevented the legislature from creating an alternative
status for gay and lesbian couples that perpetuates their perceived second-class status.
*1464 VI. SAME-SEX MARRIAGE: MASSACHUSETTS’S COMPREHENSIVE APPROACH
The Massachusetts court’s approach in Goodridge is more effective than the Vermont court’s approach in Baker because it is
more comprehensive, examining both rights-based rationales for granting same-sex marriage and the social benefits of
marriage. This section will discuss why same-sex couples are interested in attaining the right to marriage, how gay rights
advocates decided to bring their claim in Massachusetts, and why the Goodridge decision differs so substantially from Baker.
This section will conclude that, in drafting a comprehensive decision, the Massachusetts Supreme Judicial Court has warned
the legislature against granting a remedy other than that which the plaintiffs requested: the right to legal marriage.
A. Rights-Based and Social Benefit Arguments for Same-Sex Marriage
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1. Marriage Is in the Best Interests of the Children of Same-Sex Couples
Although debate exists within the gay community about whether same-sex marriage is desirable, there is substantial evidence
that, given a choice, a majority of gay couples would choose the marriage-centered family model.178 One argument in favor of
same-sex marriage is that it is in the best interests of the children of same-sex couples because it grants them both social
benefits and financial well being.179 The social benefit approach is based on evidence that raising a child within a marriage is
more beneficial than raising the child in any other situation, such as in a single parent household or in a household where the
child’s parents are not married. *1465 180 There are three central benefits that children of married couples have in relation to
“illegitimate children.”181 First, marriage establishes a connection between the families of the two parents, binding the
families formally and morally to help the children of that marriage. 182 Next, marriage eliminates the stigma of being an
illegitimate child183 and reduces the fear of being teased about having gay or lesbian parents. 184 For both of these reasons,
children of married parents have “increased social capital” that both expands the children’s opportunities in life and provides
them some protection in times of trouble.185 Finally, children of married couples have increased cognitive ability and
educational achievement, increased financial and emotional security and stability, and are less likely to suffer from abuse or
neglect.186
The financial well-being approach, on the other hand, is premised on the fact that the inability of same-sex couples to marry
is a financial burden to both parents and the children, as they are denied certain financial benefits. 187 Some examples of the
financial benefits same-sex couples lack are tax benefits, government benefits like Social Security, the ability to sue for
wrongful death, and the inability to take advantage of community property laws. 188 The financial well-being approach may be
beneficial because it allows same-sex couples the ability to accumulate benefits gradually. 189 For example, gay rights
advocates can use the rights-based approach to reach the goal of equality one benefit at a time. 190 Such an approach provides
the opportunity to establish precedents,191 and the slow accrual of rights may ultimately be more readily accepted and
supported by the general public. Conversely, the gradual gain of benefits may be harmful in that same-sex couples might not
achieve parity with opposite-sex couples.
2. Marriage Is in the Best Interests of the Same-Sex Couples Themselves
Same-sex marriage is not only in the best interest of the children, it is also in the best interest of the couple—regardless of
whether the couple are parents—for both rights-based and social-benefit reasons. Some gay men *1466 and lesbians
interested in same-sex marriage are interested in the functional benefits and protections of marriage because they have
pressing concerns about health or mortality.192 Functional benefits of marriage include economic rights and benefits at federal,
state and private levels (such as family discounts at museums or parks). For example, every state has anywhere from 160 to
250 laws affecting legal marriage, and the U.S. federal system has more than 1040 laws triggered by legal marriage. 193
However, of those couples that are interested in getting married, very few want to wed solely for practical concerns such as
tax and health benefits.194 Most couples are interested in marriage because of the social benefits it provides. For example,
younger couples sometimes see marriage as a way to remove their perceived second-class status195 and hope it will eliminate
the awkwardness of having the functional equivalent of marriage without the title, as is often the case with civil unions and
other forms of “marriage lite.”196 Others desire marriage because it is a clearly-defined relationship. Terms commonly used by
same-sex couples, like “partner,” have many definitions, whereas the institution of marriage is less ambiguous. 197 For most of
its proponents, same-sex marriage is important because marriage is so symbolic, and is recognized as “the single most
significant communal ceremony of belonging” that is not easily replicable by any alternative. 198
In sum, marriage is in the best interest of both same-sex couples and their children. It benefits same-sex couples and their
children functionally because it provides economic rights and benefits at federal, state and private levels. Although children
can receive many benefits through adoption by their same-sex parents, the best interests of the child are also affected by the
financial state of the family unit, which is directly affected by the parents’ access to marriage. If the parents are not
financially secure, the child *1467 will be adversely affected.199 Marriage further benefits children socially because it
provides children with increased social capital and leads to increased educational achievement and security. Marriage
benefits adults socially by symbolically binding the two adults together in a way that is easily recognizable by all of society
and by eliminating the awkwardness of having the functional equivalent of marriage without the title. The majority of gay
couples most likely favor the marriage-centered family model because there quite simply is no functional equivalent.
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B. Background to Goodridge: Timing Is Everything
The fact that many gay and lesbian couples favor a marriage-centered family model is apparent in the dockets of many state
courts. For example, in a case recently decided by the Massachusetts Supreme Judicial Court, seven same sex couples sued
the Department of Public Health for the right to marry. 200 On November 18, 2003, the court ruled in a landmark decision that
same-sex couples may not be denied the right to civil marriage under the Massachusetts Constitution.201 The court’s holding
was much broader than the holding in Baker, which primarily rested on the Vermont Constitution’s Common Benefits Clause
and was narrowly tailored for near exclusive applicability in Vermont. 202
Although the Massachusetts court has left to the legislature the decision about what remedy should be given to the plaintiffs,
the wording of *1468 the Goodridge opinion indicates that nothing less than marriage licenses for the seven couples would
satisfy the court’s mandate. Massachusetts Governor Mitt Romney and Attorney General Thomas F. Reilly have argued that
the ruling was vague enough to allow lawmakers to enact something short of full-fledged marriage.203 Three bar associations,
a former state attorney general, and several gay rights groups, however, disagreed with the Governor and the Attorney
General, and attacked them for making such statements.204 In light of the debate, the Massachusetts Senate voted to ask the
state supreme court to clarify whether Vermont-style civil unions would satisfy the court’s decision legalizing gay
marriage.205 The supreme court responded to the Senate’s request on February 3, 2004, explaining that civil unions are not an
appropriate remedy because they are unconstitutional, and they maintain an inferior and discriminatory status for same-sex
couples.206
There were several important precursors to the Goodridge decision that made it possible. First, the Goodridge decision came
only months after the United States Supreme Court’s historic decision in Lawrence v. Texas.207 Although Lawrence did not
give any formal recognition to homosexual relationships, it stated that gay men and lesbians were entitled to freedom, dignity
and respect for their private lives, and in so doing, it anchored gay-rights claims in the tradition of human rights. 208 As
Professor Laurence H. Tribe of Harvard Law School explained, “You’d have to be tone deaf not to get the message from
Lawrence that anything that invites people to give same-sex couples less than full respect is constitutionally suspect.”209
In addition, the Goodridge case was brought by the same team of GLAD attorneys who won the right to civil unions in
Baker.210 The Goodridge case was first suggested in the summer of 2000 by attorney Mary Bonauto. 211 From the beginning,
Bonauto and the GLAD legal team knew that the case required careful planning, as “[t]he timing had to be right; the plaintiffs
had to look like friendly next-door-neighbors; the strategy had to be tailored to avoid a decision like Vermont’s, which
stopped short of marriage.”212 In Baker, the plaintiffs’ case focused on the rights and protections *1469 given to married
couples, allowing the legislature room to avoid granting marriage itself by giving gay and lesbian couples some of the rights
and protections of marriage.213 As a direct result of this outcome, the lawyers in Goodridge knew they had to convince the
court that marriage is more than the sum of its functional benefits and protections. 214 “We spent more time in Massachusetts
talking about how marriage is a basic civil and human right ... [i]t cannot be splintered into state and federal protections.”215
Finally, at the time of the Goodridge case, opponents of same-sex marriage in Massachusetts were pressing for a
constitutional amendment stating that marriage is between a man and a woman, but the then Senate President, Thomas F.
Birmingham, used a procedural maneuver to kill the amendment for at least two years.216 In so doing, Birmingham created a
situation where the earliest that opponents could put another amendment on the ballot would be in 2006. This means that
same-sex couples can receive marriage licenses for up to three years before the public would be able to vote on reversing the
marriages.217 Many activists believe this period of three years will be crucial in winning public acceptance for married
same-sex couples.218
C. Massachusetts’s Comprehensive Approach: The Goodridge Decision
Not only was the Goodridge case well timed, but it was also more effective than Baker because the plaintiffs carefully framed
their claim so that it was not as limited as the plaintiffs’ claim in Baker, thus leading the court to consider both the financial
and social benefits of same-sex marriage. The plaintiffs sought a judgment that “the exclusion of the plaintiff couples ... from
access to marriage licenses, and the legal and social status of civil marriage, as well as the protections, benefits and
obligations of marriage, violates Massachusetts law.”219 The court stated at the beginning of the opinion that, “Marriage is a
vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual *1470 support; it
brings stability to our society.”220 These first two sentences of the Goodridge decision are telling because the court placed
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greater emphasis on the social benefits of same-sex marriage than the rights and protections that marriage provides.
The court continued to focus on the social benefits of marriage rather than exclusively focusing on its rights and protections
in explaining that the Lawrence decision “reaffirmed the central role that decisions whether to marry or have children bear in
shaping one’s identity.”221 In describing the nature of civil marriage, the court discussed its social functions, explaining that it
“enhances the welfare of the community”222 and it “bestows enormous private and social advantages on those who choose to
marry.”223 Further, the court allowed that “tangible as well as intangible benefits flow from marriage” 224 including “the
presumptions of legitimacy and parentage of children born to a married couple.” 225
The heart of the Goodridge decision is the court’s rejection of the State’s three legislative rationales for denying same-sex
marriage. The state argued that limiting marriage to opposite-sex couples is rational because: (1) it creates a favorable setting
for procreation, (2) it ensures an “optimal setting for child-rearing, which the department defines as a two-parent family with
one parent of each sex,” and (3) it preserves sparse state and private financial resources. 226
In debunking the State’s arguments, the court again focused primarily on the social benefits of same-sex marriage. In
response to the State’s first argument, the court denied that the primary purpose of marriage is procreation and instead
focused on a non-functional aspect of marriage, asserting that “the exclusive and permanent commitment of the marriage
partners to one another ... is the sine qua non of civil marriage.”227 The court further argued that, “[t]he ‘marriage is
procreation’ argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and
transforms that difference into the essence of legal marriage.” 228 The court asserted that the State’s argument supports the
damaging stereotype that same-sex couples are “inherently unstable and inferior to opposite-sex relationships and are not
worthy of respect.”229
The court continued to focus on the social benefits of same-sex marriage *1471 in dismissing the State’s second “optimal
childrearing” argument, asserting that restricting marriage to same-sex couples is not in furtherance of the state’s policy of
protecting children’s welfare.230 The court cited how the Commonwealth has supported the changing American family,
including the State’s decision to accept co-parent adoption based on the comprehensive “best interests of the child” standard,
which does not turn on a parent’s sexual orientation or marital status. 231
The court concluded not only that same-sex couples may be excellent parents, but also that excluding same-sex couples from
civil marriage may negatively affect their children socially, as they are prevented from enjoying numerous intangible
advantages that come from a stable family structure. 232 As the legislature concluded, marriage “is the foremost setting for the
education and socialization of children because it encourages parents to remain committed to each other and to their children
as they grow.”233 The court explained that it is not permissible for the state to penalize children by depriving them of benefits
because the State disapproves of the sexual orientation of their parents. 234
The court held that offering marriage to same-sex couples provides a social benefit by strengthening the importance of
marriage to both individuals and communities.235 The court analogized the struggle for same-sex marriage to the fight for
marriage between races. “Recognizing the right of an individual to marry a person of the same sex will not diminish the
validity or dignity of opposite-sex marriage, any more than ... the right ... to marry a person of a different race devalues the
marriage of a person who marries someone of her own race.” 236 The court reasoned that marriage has survived a lot of
transformations, including “the demise of anti-miscegenation laws, the expansion of the rights of married women, and the
introduction of ‘no-fault divorce,”’ and will continue to be a respected institution after this decision. 237
Although the court primarily used a social-benefits approach, it also considered the practical benefits and protections of
marriage. The court rejected the State’s financial argument for limiting marriage to opposite-sex couples, holding that a ban
on same-sex marriage bears no rational relationship to the goal of economy. 238 The court reasoned that the Department’s
*1472 generalization that same-sex couples are less financially dependent on one another than heterosexual couples ignores
the fact that many gay couples have children and other dependents. 239 Further, the court found that Massachusetts’s marriage
laws do not make the public and private benefits that flow from marriage contingent upon a couple’s financial dependence on
one another.240
In addition, analysts have argued that the Goodridge decision is in the financial interest of the state. Legalizing same-sex
marriage would be in the financial interest of the state tourist industry, as business is up about fifteen percent in Ontario and
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British Columbia since same-sex marriage was made legal there this summer.241 Experts expect that Massachusetts’s tourist
industry could get a huge boost after the Goodridge ruling, even before the legislature acts.242
In sum, the court held, “we construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of
all others. This reformulation redresses the plaintiffs’ constitutional injury and furthers the aim of marriage to promote stable,
exclusive relationships.”243 The court’s emphasis on promoting the social benefit of stable and exclusive relationships, rather
than exclusively granting functional and financial rights and obligations, led to a more comprehensive holding and demanded
a more comprehensive solution than an alternative status that creates a second-class status for same-sex couples.
In order to avoid a limited holding such as occurred in Baker, the Goodridge complaint emphasized not only the rights and
protections that flow from marriage, but also the social benefits that marriage confers. Appropriately, the court’s opinion
reflected this deliberate choice, as the court acknowledged both functional and less-tangible benefits of marriage, and held
that the Commonwealth may not deny same-sex couples the right to civil marriage. In drafting such a comprehensive
decision, the court has carefully instructed that legal marriage is the only appropriate remedy available to confer equal rights
to same-sex couples.
VII. CONCLUSION: COURTS SHOULD EMPLOY A COMPREHENSIVE APPROACH IN ORDER TO GRANT
LEGAL RECOGNITION OF SAME-SEX COUPLES AND FAMILIES
Courts should grant legal recognition to same-sex couples and their families using a comprehensive approach similar to that
found in the second-parent adoption decisions. Opinions that focus exclusively on functional *1473 rights and ignore the
social benefits of marriage do not lead to equality for gay men and lesbians.
In the adoption cases, the Vermont and Massachusetts courts achieved the best interests of the child by looking at both the
financial or functional benefits of adoption in addition to the social benefits conferred through adoption. The courts examined
the financial status of the potential adoptive parents, considering their ability to provide food and shelter for the child, as well
as the social benefit the child would derive from the adoption. In order to determine the social benefit, the courts looked at
several factors, including what type of changes would occur in the child’s daily life were the adoption to proceed, and the
level of love, support and commitment the petitioners have demonstrated to the child.
In contrast to the adoption decisions, the respective approaches of the Vermont and Massachusetts courts in granting marital
rights to same-sex couples and families differed greatly. Although the plaintiffs in Baker and Goodridge brought virtually
identical claims, the court in Baker looked primarily at the benefits and protections that adhere to marriage, whereas the
Goodridge court also considered the more intangible social benefits that flow from marriage, and, in so doing, is forcing the
legislature to craft a more comprehensive solution.
The Vermont court’s decision was flawed because it focused on the functional benefits and protections that flow from
marriage rather than its social benefits, thus suggesting that an alternative status to marriage is sufficient for same-sex
couples. Civil unions are problematic because they create a second-class status for same-sex couples that is inherently
unequal. The Vermont court’s decision is also insufficient because it allows the legislature the flexibility to create a more
incremental approach to granting legal rights for same-sex couples. The gradual expansion of marital rights for same-sex
couples is particularly dangerous because reform efforts often continue without ever achieving equality for same-sex couples,
as has been the case in some Western European countries that have enacted registered-partnership laws but not full-fledged
rights to marriage or adoption.244 As one author states, there is no adequate alternative to same-sex marriage:
It is hard to imagine any action more likely to lift the sexual outlaw onus than the legalization of
same-sex marriage. In one step, society would confer, perforce, the symbolic legitimization of intimacy
that is always implicit in the celebration of a marriage. It would be a civic recognition of shared humanity
like no other that gay people have ever experienced. But it could only come with marriage. There is
*1474 no simulacrum that would do the same.245
The Massachusetts court better achieved the “best interests of the family” by using a more comprehensive approach. The
court acknowledged the substantive rights that flow from marriage and then focused on the social benefits that come from the
institution, such as exclusive and permanent commitment between two people, the best interests of the children of that
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
partnership, and the social stability for both the individuals and the community that comes from the marital relationship.
It is unclear what direction the fight for legal recognition of gay and lesbian couples and families will take next. Tony
Kushner, a Pulitzer Prize winning playwright, opines that “a real movement for a[] [constitutional] amendment [defining
marriage as a union between a man and a woman] will electrify this community and bring about an entire new generation of
dissent and civil disobedience.”246 For this reason, some believe that “same-sex couples with Massachusetts marriage licenses
may soon find themselves with the next Supreme Court case in the making.” 247
Regardless of what direction the battle takes, it is clear that in order to achieve legal marriage for same-sex couples in the
United States, courts need to take their cue from the success of the adoption cases in creating more comprehensive opinions.
In so doing, court decisions that include both rights-based and social-benefit reasoning are more likely to be effective in
securing the legal right to same-sex marriage. If these types of lessons are ignored, same-sex couples will be perpetually
caught by the gradual approach which fails to recognize that true equality can never be met when couples are deprived of the
social benefits conferred from the symbolic title of “marriage.”
Footnotes
a1
B.A. Wesleyan University, 2001; J.D. Candidate, University of Connecticut School of Law, 2005. I would like to thank Professor
Lewis Kurlantzick for his comments and edits, Professor Carolyn Grose for the inspiration to write this paper and the
encouragement that made it possible, and my family for their continuing support.
1
Adam Goodheart, Small-Town Gay America, N.Y. TIMES, Nov. 23, 2003, at All.
2
See, e.g., Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993) (holding that a same-sex couple may jointly adopt the subject child);
Adoption of B.L.V.B., 628 A.2d 1271 (Vt. 1993) (holding that a same-sex couple may jointly adopt the two subject children).
3
See Yvonne Abraham, 10 Years’ Work Led to Historic Win in Court, BOSTON GLOBE, Nov. 22, 2003, at A1, LEXIS, News
Library, Bglobe File (discussing Vermont’s pioneering role on the issue of legal rights for same sex families).
4
744 A.2d 864 (Vt. 1999).
5
Id. at 867.
6
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
7
Id.
8
See discussion infra Part VI.
9
The Massachusetts Senate requested an advisory opinion from the Massachusetts Supreme Judicial Court as to whether a “civil
unions” bill would satisfy the Court’s mandate in Goodridge. Gay & Lesbian Advocates & Defenders, Back to Court: Civil Unions
are Separate and Unequal to Marriage, at http://www.glad.org (no longer available) (on file with the Connecticut Law Review).
This advisory opinion was handed down on February 3, 2004, when the Justices of the Massachusetts Supreme Judicial Court
found the Senate’s proposal unconstitutional because it violated the equal protection and due process requirements of the
Constitution of the Commonwealth by maintaining an inferior and discriminatory status for same-sex couples. Opinions of the
Justices to the Senate, 440 Mass. 1201, 1209-10 (2004). This decision essentially ordered that the state start granting marriage
licenses to gay and lesbian couples by May 17, 2004. Pam Belluck, Massachusetts Weighs a Deal of Marriages Between Gays,
N.Y. TIMES, Feb. 11, 2004, at A1. Despite this result, lawmakers attempted to fashion a “compromise” by proposing an
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
“amendment to the state’s Constitution that would define marriage as a heterosexual institution but would allow same-sex couples
to join in civil unions.” Id. At a two-day constitutional convention, lawmakers rejected three proposed constitutional amendments
banning same-sex marriage. Frank Phillips, Majority in Mass. Poll Oppose Gay Marriage Survey Also Finds Civil Union Support,
BOSTON GLOBE, Feb. 22, 2004, at A1, LEXIS, News Library, Bglobe File.
Lawmakers reconvened in March, and on March 29, 2004, the Massachusetts Legislature approved a proposed constitutional
amendment which would ban same-sex marriage and establish civil unions, reversing the Supreme Judicial Court’s Goodridge
decision that legalized same-sex marriage. Rick Klein, Vote Ties Civil Unions to Gay-Marriage Ban Romney to Seek Stay of SJC
Order, BOSTON GLOBE, Mar. 30, 2004, LEXIS, News Library, Bglobe File. This amendment will next appear for consideration
next during the 2005-06 legislative session. Id. If the measure is approved by lawmakers then, the issue would be placed on
statewide ballots for final approval. Id.
10
This argument is based on the premise that gay men and lesbians are being deprived of equal rights as guaranteed by the United
States Constitution, and that such deprivation is unconstitutional. This principle was established by the United States Supreme
Court in Lawrence v. Texas. 123 S. Ct. 2472 (2003). In that case, the court opined that “[m]oral disapproval of a group cannot be a
legitimate governmental interest under the Equal Protection Clause because legal classifications must not be ‘drawn for the
purpose of disadvantaging the group burdened by the law.”’ Id. at 2486 (O’Connor, J. concurring). In other words, the denial of
equal rights for gay men and lesbians is unconstitutional because it denies them equal protection of the law and could not be
justified by any legitimate state interest. This principle was further reinforced by the Massachusetts Supreme Judicial Court in
Goodridge v. Department of Public Health when the court cited Lawrence and Planned Parenthood of Southeastern Pa. v. Casey,
noting that, “[o]ur obligation is to define the liberty of all, not to mandate our own moral code.” Goodridge v. Dep’t of Pub.
Health, 798 N.E.2d 941, 973 (Mass. 2003) (Greaney, J., concurring) (quoting Planned Parenthood of Southeastern PA v. Casey,
505 U.S. 833, 850 (1992)). The majority concluded that “whether and whom to marry, how to express sexual intimacy, and
whether and how to establish a family— these are among the most basic of every individual’s liberty and due process rights.”
Goodridge, 798 N.E.2d at 959. It is therefore not my purpose to make the argument that gay men and lesbians are entitled to equal
rights here. Instead, I am using that premise as a jumping-off point to describe what I believe to be the most effective means to
achieve the goal articulated in Lawrence and Goodridge: that of granting equal rights for same-sex couples.
11
See discussion infra Part IV.
12
These two approaches were outlined by Vincent C. Green for the purpose of arguing that courts’ decisions on the marital rights of
same-sex couples will have an impact on the children of these couples. See Vincent C. Green, Same-Sex Adoption: An Alternative
Approach to Gay Marriage in New York, 62 BROOK. L. REV. 399, 403 (1996). Although the approaches were originally used in
the context of same-sex marriage, this type of analysis is useful in adoption cases as well.
13
See, e.g., Adoption of Tammy, 619 N.E.2d 315, 317 (Mass. 1993) (discussing the importance of inheritance rights for the adoptive
child).
14
ERIC FERRERO, ET AL., TOO HIGH A PRICE: THE CASE AGAINST RESTRICTING GAY PARENTING 28 (ACLU
Lesbian & Gay Rights Project ed., 2002).
15
See infra text accompanying note 175.
16
Green, supra note 12, at 426.
17
Pam Belluck, Gays Respond: ‘I Do,’ ‘I Might’ and ‘I Won’t.’ N.Y. TIMES, Nov. 26, 2003, at Al.
18
See infra Part IV.C.
19
See infra Part IV.
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20
Karla J. Starr, Adoption by Homosexuals: A Look at Differing State Court Opinions, 40 ARIZ. L. REV. 1497, 1506 (1998).
21
See 15 VT. STAT. ANN. tit. 15 § 1201-1207 (Supp. 2003) (granting same-sex couples the statutory rights and benefits of marriage
through the creation of civil unions); Baker v. Vermont, 744 A.2d 864 (1999) (holding that same-sex couples are entitled to the
benefits and protections of marriage).
22
Partners Task Force for Gay & Lesbian Couples, Civil Unions: The Vermont Approach, at http://buddybuddy.com/d-p-verm.html
(last visited Oct. 18, 2003) (on file with the Connecticut Law Review) [hereinafter Civil Unions].
23
Id. (referring to Vermont civil unions as a form of apartheid or “marriage light”).
24
Goodridge v. Dep’t of Pub. Health, No. 20011647A, 2002 WL 1299135, (Mass. Super. Ct. May 7, 2002).
25
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 941 (2003).
26
See supra note 9 and Part VI.B.
27
In re G.E.T., 529 So. 2d 524, 526 (La. Ct. App. 1988); In re L.W.F., 818 S.W.2d 727, 734 (Mo. Ct. App. 1991).
28
See, e.g., Adoption of B.L.V.B., 628 A.2d 1271 (Vt. 1993); Adoption of Tammy, 619 N.E.2d 315, 315 (Mass. 1993).
29
15 VT. STAT. ANN. tit. 15 §§ 1201-1207 (Supp. 2003).
30
Goodridge, 798 N.E.2d at 941.
31
Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816 (1977).
32
Douglas v. Harrelson, 454 So. 2d 984, 986 (Ala. Civ. App. 1984), writ. quashed by Ex parte Harrelson, 454 So. 2d 988 (Ala.
1984).
33
See generally In re Lynn M., 540 A.2d 799 (Md. 1988) (discussing the rights of biological and adoptive parents in adoption
proceedings).
34
Maertz v. Maertz, 827 P.2d 259, 261 (Utah Ct. App. 1992).
35
Starr, supra note 20, at 1506.
36
Id.
37
Id. Jurisdictions that have granted second-parent adoptions include Alaska, the District of Columbia, Massachusetts, New Jersey,
New York, Pennsylvania, and Vermont. Id. at 1507.
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
38
See Michael T. Morley et al., Developments in Law and Policy: Emerging Issues in Family Law, 21 YALE L. & POL’Y REV.
169, 201 (2003) (discussing efforts by courts to provide both partners with a legal relationship to the child even if second-parent
adoption is not an option).
39
FERRERO, supra note 14, at 17.
40
Lindley v. Sullivan, 889 F.2d 124, 130-31 (7th Cir. 1989); Crim v. Harrison, 552 F. Supp. 37, 41 (N.D. Miss. 1982).
41
Craig W. Christensen, If Not Marriage? On Securing Gay & Lesbian Values By A “Simulacrum of Marriage,” 66 FORDHAM L.
REV. 1699, 1764 (1998).
42
See, e.g., Nees v. Doan, 540 N.E.2d 1046, 1049 (Ill. App. Ct. 1989).
43
Sonja Larsen, Annotation, Adoption of Child by Same-Sex Partners, 27 A.L.R. 5th 54 (2003).
44
See generally LAMBDA LEGAL DEF. & EDUC. FUND, ADOPTIONS BY LESBIANS AND GAY MEN: AN OVERVIEW OF
THE LAW IN THE 50 STATES 1 (1996), available at http://www.lambdalegal.org/library/adoption.pdf (last visited Mar. 20,
2004) (on file with the Connecticut Law Review).
45
Larsen, supra note 43.
46
Opinion of the Justices, 530 A.2d 21, 22, 26-27 (N.H. 1987).
47
See Adoption of AMD, 766 P.2d 550, 553 (Wyo. 1988) (emphasizing that if procedural requirements are not satisfied the court will
not inquire as to the best interests of the child).
48
Note, Inching Down the Aisle: Differing Paths Toward the Legalization of Same-Sex Marriage in the United States and Europe,
116 HARV. L. REV. 2004, 2020 (2003) [hereinafter Inching].
49
In re G.E.T., 529 So. 2d 524, 526 (La. Ct. App. 1st Cir. 1988); In re L.W.F., 818 S.W.2d. 727, 734 (Mo. Ct. App. 1991).
50
2 AM. JUR. 2D Adoption § 137 (2003).
51
Id.
Among factors that have been considered in ascertaining the best interests of a child are: the desires of the child; the present or
future effects of the adoption, including the detrimental effects of termination of parental rights; the emotional and physical needs
of the child now and in the future; the child’s emotional ties to and interaction with the prospective adopting parents or contestants
to the adoption; the emotional and physical danger to the child now and in the future; the parental abilities of the individuals
seeking custody; the programs available to assist these individuals to promote the best interests of the child; the plans for the child
by these individuals; the living arrangements of the adopters; the stability of the environment or of the family; the adjustment of
the child to the living situation; the behavior of the adopters; the acts or omissions of the parents which may indicate that the
existing parent-child relationship is not a proper one; any excuse for the acts or omissions of the parent; the child’s age, home,
school, and community record; the adopter’s age; the moral fitness of the prospective adopting parents; the religious beliefs of the
adopters and adoptee; the mental and physical health of the parties or of all individuals involved; and the background, race, ethnic
heritage of the adopters.
Id.
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
52
In re Steve B.D., 723 P.2d 829, 835 (Idaho 1986).
53
Adoption of Matthew B., 284 Cal. Rptr 18, 30 (Ct. App. 1991).
54
In re Appeal in Pima County Juvenile Action B-10489, 727 P.2d 830, 834 (Ariz. Ct. App. 1986). When state courts are analyzing a
plaintiff’s sexual orientation in order to determine his or her fitness for becoming an adoptive parent and whether his or her status
as an adoptive parent would be in the best interests of the child, courts generally employ either the nexus test or the per se rule.
Starr, supra note 20, at 1502. The per se rule prevents the trial court from granting custody to particular individuals so that the
outcome is always the same in that any openly gay person will automatically be disqualified as a potential parent. Id. at 1502-03.
This rule is increasingly rare. Id. at 1503. The nexus test, on the other hand, requires that a causal connection between an individual
parent’s homosexuality and harm to the particular child in question be demonstrated before the parent’s homosexuality is
considered relevant to the adoption proceeding. Id. at 1502. This test, conversely, dictates an individualized determination of
parental fitness on a case-by-case basis, and does not require any particular result. Id.
55
Morley et al., supra note 38, at 169, 199.
56
See, e.g., S.N.E. v. R.L.B., 699 P.2d 875, 879 (Alaska 1985) (holding that a mother’s lesbian relationship does not adversely affect
her child therefore she was allowed to retain custody); Fox v. Fox, 904 P.2d 66, 69 (Okla. 1995) (holding that there was no
evidence that a lesbian mother’s behavior adversely affected her children); Van Driel v. Van Driel, 525 N.W.2d 37, 39 (S.D. 1994)
(holding that sexual orientation is not a factor where it does not adversely affect the child involved). In addition, where gay people
are legally permitted to adopt, they sometimes find that they only have access either to difficult-to-place children or that there are
no children available for them to adopt. Christensen, supra note 41, at 1764.
57
Larsen, supra note 43, at 60.
58
Tamar Lewin, For Better or Worse: Marriage’s Stormy Future, N.Y. TIMES, Nov. 23, 2003, § 4, at 1.
59
See Zablocki v. Redhail, 434 U.S. 374, 383 (1978) (signifying that the right to marry is part of the fundamental “right of privacy”
derived from the Fourteenth Amendment’s Due Process Clause).
60
Partners Task Force for Gay & Lesbian Couples, Quick Facts on Legal Marriage for Same-Sex Couples (Sept. 2003), at
http://www.buddybuddy.com/mar-quik.html (last visited Feb. 27, 2004) (on file with the Connecticut Law Review) [hereinafter
Quick Facts].
61
Detroit Diesel Corp. v. Lane-Smith, 39 F. Supp. 2d 852, 857 (E.D. Mich. 1999).
62
Randolph v. Randolph, 937 S.W.2d 815, 821 (Tenn. 1996).
63
Baehr v. Lewin, 852 P.2d 44, 58 (Haw. 1993).
64
Baker v. Vermont, 744 A.2d 864, 884 (Vt. 1999).
65
Lewin, supra note 58, at 1.
66
Partners Task Force for Gay & Lesbian Couples, State Legislative Reactions on Suits for Same-Sex Marriage (Feb. 2004), at http://
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
www.buddybuddy.com/t-line-2.html (last visited Feb. 27, 2004) (on file with the Connecticut Law Review) [hereinafter State
Legislative Reactions]. Gay-rights activists in favor of same-sex marriage argue that it is very important to clarify that they are
fighting for “legal marriage” or “legal marriage for same-sex couples,” and not “gay marriage.” Quick Facts, supra note 60.
“Marriage is more than a bundle of rights and privileges.... [i]t’s a word that’s sacred to many people, and because of its symbolic
value, its customs and history, it has superior status.” Lewin, supra note 58. “The marriage discrimination faced by same-sex
couples is discrimination based on their sex, not on their orientation.” Quick Facts, supra note 60. “Lesbian or gay people can get
legally married—as long as they marry an opposite-sex partner. The fight is for the same access to legal marriage as all other
citizens have. To call it ‘gay marriage’ suggests a different status.” Id.
67
Adams v. Howerton, 673 F.2d 1036, 1040 (9th Cir. 1982), cert. denied, 458 U.S. 1111 (1982).
68
Baehr, 852 P.2d at 68 (holding the State must show a “compelling state interest” to continue denying same-sex couples marriage
licenses).
69
Brause v. Alaska, No. 3AN-95-6562 Cl, 1998 WL 88743, at *1 (Alaska Super. Ct. Feb. 27, 1998) (holding that choosing a partner
is a fundamental right). Brause was later dismissed by the Alaska Supreme court on procedural grounds. Brause v. Alaska, 21 P.3d
357 (Alaska 2001).
70
Baker v. Vermont, 744 A.2d 864, 867 (Vt. 1999) (holding that courts may not deny same-sex couples the benefits and protections
of marriage).
71
State Legislative Reactions, supra note 66.
72
Id.
73
Morley et al., supra note 38, at 188.
74
Id.
75
Id.
76
Id. at 189.
77
Linda Greenhouse, Supreme Court Paved Way for Marriage Ruling With Sodomy Law Decision, N.Y. TIMES, Nov. 19, 2003, at
A24.
78
Morley et al., supra note 38, at 193.
79
Id.
80
Id. at 194.
81
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969-70 (Mass. 2003).
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
82
Partners Task Force for Gay & Lesbian Couples, B.C. and Ontario Offer Legal Marriage,
http://www.buddybuddy.com/mar-cana.html (last visited Oct. 18, 2003) (on file with the Connecticut Law Review).
83
Lewin, supra note 58.
84
Id.
85
Id.
86
Partners Task Force for Gay & Lesbian Couples, Domestic Partner Registration: The California Approach, at
http://buddybuddy.com/d-p-cali.html (last visited Oct. 18, 2003) (on file with the Connecticut Law Review).
87
Partners Task Force for Gay & Lesbian Couples, Reciprocal Beneficiaries: The Hawaiian Approach,
http://www.buddybuddy.com/d-p-hawa.html (last visited Oct. 18, 2003) (on file with the Connecticut Law Review).
88
Civil Unions, supra note 22.
89
744 A.2d 864, 867 (Vt. 1999).
90
Civil Unions, supra note 22.
91
Id.
92
Id.
93
Id.
94
Id.
95
Partners Task Force for Gay & Lesbian Couples, Marrying Apartheid: The Failure of Domestic Partnership Status, at
http://www.buddybuddy.com/mar-apar.html (last visited Jan. 13, 2004) (on file with the Connecticut Law Review).
96
Brown v. Bd. of Educ., 347 U.S. 483 (1954).
97
Id. at 495.
98
See Belluck, supra note 17 (discussing varying attitudes toward marriage among gay and lesbian couples).
99
Civil Unions, supra note 22.
100
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 941 (Mass. 2003).
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at
at
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
101
Starr, supra note 20, at 1499.
102
David Usborne, Gay Baby Boom: How Kids are Shaking Up Gay Life in the City, N.Y. MAGAZINE, Nov. 3, 2003, at 30.
103
Inching, supra note 48, at 2021.
104
Starr, supra note 20, at 1499.
105
Id. at 1500-01.
106
Christensen, supra note 41, at 1767.
107
Id.
108
Starr, supra note 20, at 1497.
109
FERRERO, supra note 14, at 13-14.
110
Usborne, supra note 102, at 31.
111
Public policy reasons not to restrict gay adoption include the fact that there are over one hundred thousand children in the foster
care system who are ready for adoption, but are waiting for homes because “nobody wants them.” FERRERO, supra note 14, at 23.
112
Social science reasons not to restrict gay adoption include studies in child development and psychology indicating that gay parents
and kids are just as happy and healthy as their opposite-sex counterparts. See generally id. at 42-96 (summarizing and discussing
twenty-two studies on gay parenting).
113
Legal reasons not to restrict gay adoption include that restricting gay men and lesbians from adoption denies them equal protection
of the laws, due process, and the right of intimate association, under the United States Constitution. Id. at 97-103.
114
See generally Usborne, supra note 102, at 28-33, 44 (discussing the rise of gay parenting in New York City).
115
Id. at 30.
116
Id.
117
Id.
118
Id.
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
119
Inching, supra note 48, at 2021.
120
Danielle Epstein & Lena Mukherjee, Note, Constitutional Analysis of the Barriers Same-Sex Couples Face in their Quest to
Become a Family Unit, 12 ST. JOHN’S J. LEGAL COMMENT. 782, 809 (1997).
121
See supra Part II.B.
122
See supra Part II.A.-B.
123
Adoption of B.L.V.B, 628 A.2d 1271, 1271 (Vt. 1993).
124
Id at 1276.
125
Id. at 1272-73. The stepparent exception states, “[W]hen the adoption is made by a spouse of a natural parent, obligations of
obedience to, and rights of inheritance by and through the natural parent who has intermarried with the adoption parent shall not be
affected.” Id. at 1273.
126
Id.
127
Id. at 1275 (quoting In re Evan, 583 N.Y.S.2d 997, 1002 (N.Y. Sup. Ct. 1992)).
128
Id. (quoting In re Evan, 583 N.Y.S.2d at 1002).
129
Id. at 1274.
130
Id. at 1275. For example, where the child’s biological parents refused to marry for political reasons.
131
Id. at 1276.
132
Id. at 1275.
133
Id. at 1276.
134
Adoption of Tammy, 619 N.E.2d 315, 315 (Mass. 1993).
135
Id.
136
Id. at 321.
137
Id. at 316.
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
138
Id.
139
Id.
140
Id. at 317.
141
Id.
142
Id. at 319-21.
143
Id. at 318.
144
Id. at 319.
145
Id. at 320.
146
Id.
147
Id. at 319 n.2.
148
See, e.g., In re Adoption of a Minor (No. 1), 327 N.E.2d 735 (Mass. 1975) (holding a stepfather may adopt where the biological
father has been absent and the adoption is in the best interests of the child).
149
Goodridge v. Dep’t of Pub. Health, No. 20011647A, 2002 WL 1299135, at *14 (Mass. Super. Ct. May 7, 2002).
150
Green, supra note 12, at 426.
151
Id.
152
Id.
153
Inching, supra note 48, at 2024.
154
Id. at 2021.
155
Id. at 2022.
156
Id. at 2022-23 & nn. 131, 133-36.
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
157
Id. at 2024.
158
Id.
159
744 A.2d 864 (Vt. 1999).
160
Id. at 867.
161
Id.
162
Id.
163
Abraham, supra note 3.
164
Id.
165
Civil Unions, supra note 22; State Legislative Reactions, supra note 66.
166
Civil Unions, supra note 22.
167
Baker, 744 A.2d at 867 (emphasis added).
168
Id. at 888-89 (italics omitted).
169
Id. at 883 (emphasis added).
170
Id.
171
Id.
172
Id. at 881.
173
Id. at 882 (italics omitted, emphasis added).
174
Id. at 886.
175
Id.
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176
Id.
177
Inching, supra note 48, at 2024.
178
Christensen, supra note 41, at 1726. Gay and lesbian couples’ support of legal marriage for same-sex marriage is varied. Couples
who grew up in the 60s and 70s are more likely than younger gay men and lesbians not to want any part of the institution of
marriage. Belluck, supra note 17. These couples commonly feel marriage is a heterosexual, patriarchal institution, and thus an
“instrument of an oppressive system.” Id. Some older couples feel same-sex marriage is unnecessary and a little insulting
considering how long they have been together. Id.
Some of the strongest attacks on same-sex marriage have come from gay-rights supporters, Christensen, supra note 41, at 1709.
Nancy Polikoff, one of the strongest opponents of same-sex marriage among gay-rights activists, argues that “the desire to marry in
the lesbian and gay community is an attempt to mimic the worst of mainstream society.” Id. Others argue that society should be
moving toward recognizing families in the way that they are self-defined and that the state should have “no authority to sanction, to
reward, or even to approve one set of family relations over another.” Id. at 1712. Another opponent, Vivian Hamilton, suggests that
marriage’s primary functions are expressive, companionate, sexual/procreative, care taking, and economic support/redistribution.
Vivian Hamilton, Mistaking Marriage for Social Policy, 11 VA. J. SOC. POL’Y & L. (forthcoming 2004) (manuscript on file with
the Connecticut Law Review). She argues that the only place the state has a real interest is in marriage’s care taking and economic
support functions, and these functions can be addressed by more narrowly tailored state policy, rather than by the “marital
monolith.” Id.
179
Green, supra note 12, at 424.
180
Id.
181
Id. at 426.
182
Id.
183
See id. at 424 (describing the benefits of legitimacy).
184
Belluck, supra note 17.
185
Green, supra note 12, at 427.
186
Id.
187
Id. at 424-26.
188
Id. at 425.
189
Id. at 426.
190
Id.
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
191
Id.
192
Belluck, supra note 17.
193
Quick Facts, supra note 60. A sample of state laws triggered by legal marriage includes: assumption of spouse’s pension,
automatic inheritance, automatic housing lease transfer, bereavement leave, burial determination, certain property rights, child
custody, crime victim’s recovery benefits, divorce protections, domestic violence protection, exemption from property tax on
partner’s death, immunity from testifying against spouse, insurance breaks, joint adoption and foster care, joint bankruptcy, joint
parenting (insurance coverage, school records), medical decisions on behalf of partner, name change if desired, reduced rate
memberships, sick leave to care for partner, visitation of partner’s children, visitation of partner in hospital or prison, and wrongful
death (loss of consortium) benefits. Id. A sample of federal laws triggered by legal marriage includes access to military stores,
assumption of spouse’s pension, bereavement leave, immigration, insurance breaks, medical decisions on behalf of partner, sick
leave to care for partner, Social Security survivor benefits, tax breaks for married couples, veteran’s discounts, and visitation of
partner in hospital or prison. Id.
194
Belluck, supra note 17.
195
Id.
196
Id.
197
Id.
198
Christensen, supra note 41, at 1733; Belluck, supra note 17.
199
Green, supra note 12, at 425.
200
Goodridge v. Dep’t of Pub. Health, No. 20011647A, 2002 WL 1299135, at *1 (Mass. Super. Ct. May 7, 2002).
201
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 969 (Mass. 2003).
202
Baker v. Vermont, 744 A.2d 864, 870, 877-78 (Vt. 1999). The Vermont court made great efforts to distinguish the Vermont
Constitution from the Federal Constitution. Id. at 878. The court explained that the Vermont Constitution has a Common Benefits
Clause that is quite different from in its language, historical origins, historical development, and purpose from its federal
counterpart, the Equal Protection Clause. Id. at 875-76. In discussing historical development, the court noted that judicial review
under the Common Benefits Clause does not consistently use the federal three-tiered judicial review analysis traditionally applied
to Equal Protection Clause questions. Id. at 878. Instead, Vermont prefers to employ a balancing approach that demands statutory
exclusions from publicly conferred benefits and protections must be based on appropriate countervailing public interests. Id. at
873. The court argued not only is the analysis different, but also that the Common Benefits Clause was written to provide a
government that gave every citizen its benefit and protection, giving no Vermonter an advantage over another. Id. at 875. The court
explained that the Vermont Constitution has an “inclusionary principle at its textual core,” and that Vermont’s first constitution
was the “most democratic ... produced by any of the American states.” Id. at 876.
The court also gave other states an “out” by reasoning that there is no connection between its decision to grant second-parent
adoption rights to same-sex couples and this decision to grant same-sex couples benefits and protections. Id. at 869. In stating that
there is no connection between the adoption and the civil union decisions, the court denied that a trend is emerging, or that there is
a logical progression toward granting legal rights to same-sex couples in several realms. By doing this, the court allowed other
states, such as Massachusetts, NOT to grant rights and protections to same-sex couples through civil unions even though they had
granted second-parent adoption, and to make it easier to find these two results consistent with one another.
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
203
Raphael Lewis, Romney, AG Take Heat on Marriage Issue Gay-Rights Ruling is Clear, Law Groups Say, BOSTON GLOBE, Nov.
22, 2003, at B1, LEXIS, News Library, Bglobe File.
204
Id.
205
Raphael Lewis, Delay Eyed on Marriage Amendment Senate Leader Awaits SJC View on Civil Unions, BOSTON GLOBE, Jan.
13, 2004, at A1, LEXIS, News Library, Bglobe file.
206
See supra note 4.
207
Lawrence v. Texas, 123 S. Ct. 2472, 2472 (2003).
208
Greenhouse, supra note 77.
209
Id.
210
Abraham, supra note 3.
211
Id.
212
Id.
The plaintiffs, who would serve as the public face of the lawsuit, were chosen carefully. They had to be varied in age, ethnicity,
and profession. They had to be well spoken, but not too political. They had to be longtime couples who had been faithful to one
another. They had to stand up to rigorous criminal background checks, and to convince the lawyers that there were no skeletons in
their closets.
Id.
213
Id.
214
Id.
215
Id.
216
Id.
217
Id.; see supra note 9.
218
Abraham, supra note 3.
219
Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 950 (Mass. 2003) (emphasis added).
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APPROACHING SAME-SEX MARRIAGE: HOW SECOND..., 36 Conn. L. Rev. 1439
220
Id. at 948.
221
Id.
222
Id. at 954 (citations omitted).
223
Id.
224
Id. at 955.
225
Id. at 956.
226
Id. at 961.
227
Id.
228
Id. at 962.
229
Id.
230
Id. at 962-63.
231
Id. at 963.
232
Id. at 963-64.
233
Id. at 964.
234
Id.
235
Id. at 965.
236
Id.
237
Id. at 967.
238
Id. at 964.
239
Id.
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240
Id.
241
Sarah Robertson, Mining the Gold in Gay Nuptials, N.Y. TIMES, Dec. 19, 2003, at F1.
242
Id.
243
Goodridge, 798 N.E.2d at 969.
244
Inching, supra note 48, at 2004-05.
245
Christensen, supra note 41, at 1783-84.
246
Elizabeth Bumiller, What Partisans Embrace, Politicians Fear, N.Y. TIMES, Nov. 23, 2003, at § 4.
247
Greenhouse, supra note 77.
36 CTLR 1439
End of Document
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© 2013 Thomson Reuters. No claim to original U.S. Government Works.
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