University of Pittsburgh, Summer 2000

Philosophy 1390: Philosophy of Law

C.L. 226—Tuesdays, 6 p.m. to 8:55 p.m.

Ben Eggleston—egglestn@pitt.edu

Some notes on the oral arguments in the case of Baker v. State

The Supreme Court of Vermont heard oral arguments in the case of Stan Baker et al. v. State of Vermont on November 18, 1998. That session was videotaped, and although the arguing attorneys’ presentations are clearly audible, many of the questions asked by the justices are not, and the captioning on the videotape is not of much help. These notes are meant to remedy that deficiency to some extent, as well as to clarify certain legal concepts that the participants in the discussion employ, but whose meanings are neither self-evident nor explained in the reading that precedes this videotape (the appellants’ opening brief). These notes are not meant to summarize the arguing attorneys’ presentations.

1. The first presentation is made by Beth Robinson, an attorney for the appellants. The justices ask her questions along the following seven lines:

a. Putting aside whatever weaknesses there may be in the state’s arguments against same-sex marriage, what are the appellants’ affirmative “theories of relief”? The justice is asking Ms. Robinson for the arguments (i.e., “theories”) that she thinks are sufficient to show that the court should conclude that the three couples have the right to marry (i.e., give them “relief”). The justice asks, in particular, what Ms. Robinson thinks is the appellants’ strongest ground for relief.

b. Is it necessary to regard homosexuals as a suspect class in order for heightened scrutiny to be warranted in this case?

c. Given that the concept of heightened scrutiny is a federal one—“a federal construct”—why are the appellants’ attorneys invoking this concept in a Vermont court? That is, why aren’t the appellants’ attorneys arguing in front of a federal court, where their heightened-scrutiny arguments would presumably fall on more receptive ears?

d. Does the 1777 provision really provide any support for the appellants’ case? What the justice is referring to is the Common Benefits Clause. The justice suggests that it doesn’t help the appellants’ case because it’s basically an anti-royalty provision, not a provision against discrimination on the basis of race, sex, or sexual orientation.

e. Is the 1777 provision meant to prohibit “impermissibly motivated” discrimination? This question is designed to challenge Ms. Robinson’s analogy between the present case and cases of interracial marriage. The justice’s point is that whereas part of the problem with laws banning interracial marriage is that they are apparently motivated by a desire to put certain races at a disadvantage relative to others (which is surely an impermissible desire for a state to have), Vermont’s marriage laws may not have a similar malicious intent behind them.

f. How is Vermont’s ban on same-sex marriage an instance of gender discrimination? This question bears on Ms. Robinson’s claim that this is a heightened-scrutiny case, since one of the reasons for heightened scrutiny is the suspect-class consideration and that consideration may not come into play if no class is being discriminated against.

g. What if the legislature of Vermont decided to eliminate the institution of marriage altogether, simply allowing people (of the same sex or of different sexes) to enter into “domestic partnerships”—would that be in violation of Vermont’s constitution? This question also bears on Ms. Robinson’s heightened-scrutiny claim, since one of the reasons for heightened scrutiny is the claim that the right to marry is a fundamental right.

2. Eve Jacobs-Carnahan makes the first of the state’s two presentations and is asked questions along the following nine lines:

a. Why should Vermont shy away from being the first state to recognize same-sex marriage? Does the absence of such recognition elsewhere show anything other than pervasive (not to mention long-standing) discrimination?

b. Doesn’t the Common Benefits Clause trigger heightened scrutiny for this case?

c. Hasn’t the legislature, in enacting laws prohibiting certain forms of discrimination against homosexuals, indicated that homosexuals are a suspect class, thereby triggering heightened scrutiny for this case?

d. What is the rational basis relating Vermont’s ban on same-sex marriage to some legitimate state interest? Not only same-sex couples, but also the elderly and the naturally infertile, are incapable of having children. Since Vermont allows the elderly and the naturally infertile to marry, isn’t its ban on same-sex marriage so under-inclusive as to be unreasonable?

e. Would the state drop its opposition to same-sex marriage if it became possible for same-sex couples to have children of their own, whether by cloning or in some other way?

f. Why is the state is so concerned to protect the welfare of children through its marriage laws, when it already does so through countless other laws not having anything to do with marriage at all?

g. Isn’t the state making a value-laden decision in restricting marriage to people of different sexes? (It’s not entirely clear what the justice who asks this question has in mind.)

h. Isn’t it time to stop regarding procreation as essentially related to marriage?

i. Is there a fundamental right to marry?

3. Timothy Tomasi, who speaks second for the state, is confronted with five lines of questioning:

a. Is there a fundamental right to marry?

b. Doesn’t the state’s ban on same-sex marriage constitute gender discrimination, and so isn’t this a heightened-scrutiny case for this reason, too?

c. Doesn’t the state’s emphasis on the procreative purpose of marriage imply that it would not regard as unconstitutional a law prohibiting prohibit infertile couples from marrying? (This question is, apparently, meant to see whether Mr. Tomasi can be made to admit that the right to marry is a fundamental one.)

d. Isn’t the status of homosexuals as a suspect class implicit in the decision of the Vermont legislature to protect homosexuals from certain kinds of discrimination?

e. If this court were to find that this is a heightened-scrutiny case and send it back to a lower court to ascertain whether the heightened-scrutiny test were passed, what state interests would be asserted as important enough to deny same-sex couples the right to marry?

4. No questions are asked of Ms. Robinson in her closing presentation.