Baker v. State

Johnson, J.,

concurring in part and dissenting in part. Forty years ago, in reversing a decision that had denied injunctive relief for the immediate desegregation of publicly owned parks and recreational facilities in Memphis, Tennessee, a unanimous United States Supreme Court stated:

The basic guarantees of our Constitution are warrants for the here and now and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled.

Watson v. City of Memphis, 373 U.S. 526, 533 (1963).

Plaintiffs come before this Court claiming that the State has unconstitutionally deprived them of the benefits of marriage based solely upon a discriminatory classification that violates their civil rights. They ask the Court to remedy the unlawful discrimination by enjoining the State and its municipalities from denying them the license that serves to identify the persons entitled to those benefits. The majority agrees that the Common Benefits Clause of the Vermont Constitution entitles plaintiffs to obtain the same benefits and protections as those bestowed upon married opposite-sex couples, yet it declines to give them any relief other than an exhortation *242 to the Legislature to deal with the problem. I concur with the majority’s holding, but I respectfully dissent from its novel and truncated remedy, which in my view abdicates this Court’s constitutional duty to redress violations of constitutional rights. I would grant the requested relief and enjoin defendants from denying plaintiffs a marriage license based solely on the sex of the applicants.

The majority declares that the issue before this Court does not turn on the heated moral debate over intimate same-sex relationships, and further, that this Court has a constitutional responsibility to consider the legal merits of even controversial cases. See 170 Vt. at 197, 744 A.2d at 867. Yet, notwithstanding these pronouncements, the majority elects to send plaintiffs to an uncertain fate in the political caldron of that very same moral debate. 1 And to what end? Passing this case on to the Legislature will not alleviate the instability and uncertainty that the majority seeks to avoid, and will unnecessarily entangle this Court in the Legislature’s efforts to accommodate the majority’s mandate within a “reasonable period of time.” Id. at 226, 744 A.2d at 887.

In 1948, when the California Supreme Court struck down a state law prohibiting the issuance of a license authorizing interracial marriages, the court did not suspend its judgment to allow the legislature an opportunity to enact a separate licensing scheme for interracial marriages. See Perez v. Lippold, 198 P.2d 17, 29 (Cal. 1948) (granting writ of mandamus compelling county clerk to issue certificate of registry). Indeed, such a mandate in that context would be unfathomable to us today. Here, as in Perez , we have held that the State has unconstitutionally discriminated against plaintiffs, thereby depriving them of civil rights to which they are entitled. Like the Hawaii Circuit Court in Baehr v. Miike, No. Civ.91-1394, 1996 WL 694235 , at *22 (Haw. Cir. Ct., Dec. 3, 1996), which rejected the State’s reasons for excluding same-sex couples from marriage, we should simply enjoin the State from denying marriage licenses to plaintiffs based on sex or sexual orientation. That remedy would provide prompt and complete relief to plaintiffs and create reliable expectations that would stabilize the legal rights and duties of all couples.

*243 I.

My dissent from the majority’s mandate is grounded on the government’s limited interest in dictating public morals outside the scope of its police power, and the differing roles of the judicial and legislative branches in our tripartite system of government. I first examine the State’s narrow interest in licensing marriages, then contrast that interest with the judiciary’s fundamental duty to remedy civil rights violations, and lastly emphasize the majority’s failure to adequately explain why it is taking the unusual step of suspending its judgment to allow the Legislature an opportunity to redress the unconstitutional discrimination that we have found.

This case concerns the secular licensing of marriage. The State’s interest in licensing marriages is regulatory in nature. See Southview Coop. Housing v. Rent Control Bd., 486 N.E.2d 700, 704 (Mass. 1985) (“Licensing is simply a means of regulating.”). The regulatory purpose of the licensing scheme is to create public records for the orderly allocation of benefits, imposition of obligations, and distribution of property through inheritance. Thus, a marriage license merely acts as a trigger for state-conferred benefits. See Priddy v. City of Tulsa, 882 P.2d 81, 83 (Okla. Crim. App. 1994) (license gives to licensee special privilege not accorded to others, which licensee otherwise would not enjoy). In granting a marriage license, the State is not espousing certain morals, lifestyles, or relationships, but only identifying those persons entitled to the benefits of the marital status. 2 See People ex rel. Deukmejian v. County of Mendocino, 683 *244 P.2d 1150, 1155 (Cal. 1984) (licensing regulates activity based on determination of qualification of licensee).

Apart from establishing restrictions on age and consanguinity related to public health and safety, see 18 V.S.A. § 5142 (minors and incompetent persons); 15 V.S.A. §§ 1,2 (consanguinity), the statutory scheme at issue here makes no qualitative judgment about which persons may obtain a marriage license. See Leduc v. Commonwealth, 657 N.E.2d 755, 756-57 (Mass. 1995) (historical aim of licensure is generally to preserve public health, safety and welfare). Hence, the State’s interest concerning the challenged licensing statute is a narrow one, and plaintiffs have prevailed on their constitutional claim because the State has failed to raise any legitimate reasons related to public health or safety for denying marital benefits to same-sex couples. See Commonwealth v. Bonadio, 415 A.2d 47, 50 (Pa. 1980) (“With respect to regulation of morals, the police power should properly be exercised to protect each individual’s right to be free from interference in defining and pursuing his own morality but not to enforce a majority morality on persons whose conduct does not harm others”). In my view, the State’s interest in licensing marriages would be undisturbed by this Court enjoining defendants from denying plaintiffs a license.

While the State’s interest in licensing marriages is narrow, the judiciary’s obligation to remedy constitutional violations is central to our form of government. Indeed, one of the fundamental principles of our tripartite system of government is that the judiciary interprets and gives effect to the constitution in cases and controversies concerning individual rights. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 177-78 (1803); see also Shields v. Gerhart, 163 Vt. 219, 223 , 658 A.2d 924, 927-28 (1995) (emphasizing “the preeminence of the Vermont Constitution in our governmental scheme,” which *245 includes right of citizens under Chapter I, Article 4 to find a certain remedy promptly and without delay). 3

This power is “not merely to rule on cases, but to decide them.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218-19 (1995) (emphasis in original); see Records of the Council of Censors of the State of Vermont 431 (E Gillies and D. Sanford eds., 1991) (supreme judicial tribunals are to regard constitution as fundamental law superior to legislative enactment; consequently, if enactment is repugnant to constitution, judges are bound to pronounce it inoperative and void). As this Court has stated on numerous occasions, when measures enacted pursuant to the State’s police powers have no real or substantial relation to any legitimate purpose of those powers and invade individual ‘“rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.’” State v. Morse, 84 Vt. 387, 394 , 80 A. 189, 191-92 (1911) (quoting Mugler v. Kansas, 123 U.S. 623 (1887)); see Beecham v. Leahy, 130 Vt. 164, 172 , 287 A.2d 836, 841 (1972) (“It is the function of the judicial branch to pass upon the appropriateness and reasonableness of the legislative exercise of police power.”). This Court emphasized in Morse that “in its last analysis, the question of the validity of such measures [enacted under the police powers] is one for the court.” 84 Vt. at 394 , 80 A. at 191 .

The power of courts to fashion remedies for constitutional violations is well established in both this Court’s and the United States Supreme Court’s jurisprudence concerning individual rights and equal protection. See MacCallum v. Seymour’s Adm’r, 165 Vt. 452, 462 , 686 A.2d 935, 941 (1996) (holding that statute denying adopted children right to inherit from collateral heirs violated Common Benefits Clause, and declaring plaintiff to be lawful heir of estate of collateral relative); Medical Ctr. Hosp. v. Lorrain, 165 Vt. 12, 14-15 , *246 675 A.2d 1326, 1329 (1996) (determining that doctrine making husbands hable to creditors for necessary items provided to wives violated principle of equal protection when applied only to men, and choosing to abolish doctrine rather than to extend it to both men and women); see also Heckler v. Mathews, 465 U.S. 728, 740 (1984) (when right invoked is that to equal treatment, “the appropriate remedy is a mandate of equal treatment”); Davis v. Passman, 442 U.S. 228, 241-42 (1979) (within “great outlines” of Constitution, “judiciary is clearly discernible as the primary means through which these rights may be enforced”; unless Constitution commits issue to coordinate branch, “we presume that justiciable constitutional rights are to be enforced through the courts”). Particularly in civil rights cases involving discrimination against a disfavored group, “courts do not need specific [legislative] authorization to employ a remedy, at law or in equity, that is tailored to correct a constitutional wrong.” Aguayo v. Christopher, 865 F. Supp. 479, 487-88 (N.D. Ill. 1994) (finding unconstitutional on its face statute making citizenship available to foreign-born children of citizen fathers, but not citizen mothers, and issuing judgment declaring plaintiff to be citizen).

Accordingly, absent “compelling” reasons that dictate otherwise, it is not only the prerogative but the duty of courts to provide prompt relief for violations of individual civil rights. See Watson, 373 U.S. at 532-33 (defendants have heavy burden of showing that delay in desegregating public parks and recreational facilities is “manifestly compelled by constitutionally cognizable circumstances”). This basic principle is designed to assure that laws enacted through the will of the majority do not unconstitutionally infringe upon the rights of a disfavored minority.

There may be situations, of course, when legislative action is required before a court-ordered remedy can be fulfilled. For example, in Brigham v. State, 166 Vt. 246, 249, 269 , 692 A.2d 384, 386, 398 (1997), this Court declared that Vermont’s system for funding public education unconstitutionally deprived Vermont schoolchildren of a right to an equal educational opportunity, and then retained jurisdiction until the Legislature enacted legislation that satisfied the Court’s holding. Plainly, it was not within the province of this Court to create a new funding system to replace the one that we had declared unconstitutional. The Legislature needed to enact legislation that addressed issues such as the level of state funding for public schools, the sources of additional revenue, and the framework for distributing state funds. See Act 60, 16 V.S.A. §§ 4000-4029. In finding a funding *247 source, the Legislature had to consider whether to apply a flat or progressive tax on persons, property, entities, activities or income. These considerations, in turn, required the Legislature to consider what state programs would have to be curtailed to make up for the projected additional school funding. All of these complex political decisions entailed core legislative functions that were a necessary predicate to fulfillment of our holding. See Brigham, 166 Vt. at 249 , 692 A.2d at 386 (devising system for funding public education lies within prerogative of Legislature).

A completely different situation exists here. We have held that the Vermont Constitution entitles plaintiffs “to obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples.” 170 Vt. at 224, 744 A.2d at 886. Given this holding, the most straightforward and effective remedy is simply to enjoin the State from denying plaintiffs a marriage license, which would designate them as persons entitled to those benefits and protections. 4 No legislation is required to redress the constitutional violation that the Court has found. Cf. Watson, 373 U.S. at 532 (desegregation of recreational facilities does not present same kind of cognizable difficulties inherent in desegregating schools). Nor does our paramount interest in vindicating plaintiffs’ constitutional rights interfere in any way with the State’s interest in licensing marriages. Far from intruding upon the State’s narrow interest in its licensing statute, allowing plaintiffs to obtain a license would further the overall goals of marriage, as defined by the majority — to provide stability to individuals, their families, and the broader community by clarifying and protecting the rights of married persons. See 170 Vt. at 222, 744 A.2d at 884. Cf. In re B.L.V.B., 160 Vt. 368, 372, 375 , 628 A.2d 1271, 1274-75 (1993) (purpose of adoption statute read in its entirety is to clarify and protect legal rights of adopted persons, not to proscribe adoptions by certain combinations of individuals; denying children of same-sex partners security of legally recognized relationship with second parent serves no legitimate state interest).

The majority declines to provide plaintiffs with a marriage license, however, because a sudden change in the marriage laws “may have *248 disruptive and unforeseen consequences,” and “uncertainty and confusion could result.” 170 Vt. at 225, 744 A.2d at 887. Thus, within a few pages of rejecting the State’s doomsday speculations as a basis for upholding the unconstitutionally discriminatory classification, the majority relies upon those same speculations to deny plaintiffs the relief to which they are entitled as the result of the discrimination. See id. at 224, 225-26, 744 A.2d at 885-86.

During the civil rights movement of the 1960’s, state and local governments defended segregation or gradual desegregation on the grounds that mixing the races would lead to interracial disturbances. The Supreme Court’s “compelling answer” to that contention was “that constitutional rights may not be denied simply because of hostility to their assertion or exercise.” See Watson, 373 U.S. at 535 . Here, too, we should not relinquish our duty to redress the unconstitutional discrimination that we have found merely because of “personal speculations” or “vague disquietudes.” Id. at 536 . While the laudatory goals of preserving institutional credibility and public confidence in our government may require elected bodies to wait for changing attitudes concerning public morals, those same goals require courts to act independently and decisively to protect civil rights guaranteed by our Constitution. 5

*249 None of the cases cited by the majority support its mandate suspending the Court’s judgment to allow the Legislature to provide a remedy. In Linkletter v. Walker, 381 U.S. 618, 622 (1965), the issue was whether the decision in Mapp v. Ohio, 367 U.S. 643 (1961), extending the exclusionary rule 6 to the states through the federal due process clause applied to all state court convictions that had become final before Mapp . The Court declined to apply Mapp retroactively, stating that both defendants and the states had relied upon the decision that Mapp had overruled, that the fairness of the underlying trials had not been placed at issue, and that applying Mapp retroactively would severely tax the administration of justice in state courts. See Linkletter, 381 U.S. at 637-39 . After noting that it was not concerned with “pure” prospectivity because the exclusionary rule had been applied in Mapp itself, the Court held that new rules may be applied prospectively “where the exigencies of the situation require such an application.” See id. at 622, 628.

Unlike Linkletter , the issue here is not whether the majority’s holding should be applied retroactively or prospectively, but rather whether the relief it has promised should be provided promptly by this Court or at some uncertain future time by the Legislature. Neither these plaintiffs, nor any same-sex couples seeking the benefits and protections of marriage, obtain any relief until the Legislature acts, or failing that, this Court acts again. Thus, the majority is not applying its holding on even a purely prospective basis. In any event, assuming that Linkletter continues to have vitality in cases involving civil rights violations, see Fairfax Covenant Church v. Fairfax County Sch. Bd., 17 F.3d 703, 709, 710 (4th Cir. 1994) (stating that Supreme Court has recently cast serious doubt upon practice of departing from traditional rule of retroactive application, which is “the rule inherent in the judicial function” of applying and interpreting law in real controversies), the “unforeseen consequences” alluded to by the majority cannot be considered “exigencies” warranting relief only at some unspecified future time.

The other two cases cited by the majority also concern whether court rulings should be applied prospectively or retroactively. In *250 those cases, the courts weighed the potential consequences of a decision to abrogate common-law sovereign immunity — the doctrine declaring that the government is immune from lawsuits. See Smith v. State, 473 P.2d 937, 950 (Idaho 1970) (applying decision to abrogate doctrine of sovereign immunity to cases before court but otherwise staying decision until adjournment of following legislative session to prevent undue hardship to government agencies that relied on doctrine); Spanel v. Mounds View Sch. Dist. No. 621, 118 N.W.2d 795, 803-04 (Minn. 1962) (staying decision to abrogate sovereign immunity until following legislative session to prevent hardship to government agencies that relied on doctrine); cf. Presley v. Mississippi State Highway Comm’n, 608 So. 2d 1288, 1298 (Miss. 1992) (giving retroactive application to decision finding sovereign immunity act unconstitutional would pose fiscally disastrous consequences to state agencies). These courts simply acknowledged that retroactively applying their holding abrogating sovereign immunity, without affording the legislature an opportunity either to alter insurance coverage or enact an immunity statute, would have potentially disastrous fiscal consequences for the state. See Hillerby v. Town of Colchester, 167 Vt. 270, 293 , 706 A.2d 446, 459 (1997) (Johnson, J., dissenting) (favoring quasi-prospective approach that would afford Legislature time to react to holding abrogating general municipal immunity). That is not the situation here, where no disastrous consequences, fiscal or otherwise, have been identified.

I recognize that the Legislature is, and has been, free to pass legislation that would provide same-sex couples with marital benefits. But the majority does not explain why it is necessary for the Legislature to act before we remedy the constitutional violation that we have found. In our system of government, civil rights violations are remedied by courts, not because we issue “Holy Writ” or because we are “the only repository of wisdom.” 170 Vt. at 228, 744 A.2d at 888. It is because the courts “must ultimately define and defend individual rights against government in terms independent of consensus or majority will.” L. Tribe, American Constitutional Law § 15.3, at 896 (1978). 7

*251 “‘[G]roups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time.’” Rosenberg v. Canada, Docket No. C22807 (Ontario Court of Appeals, April 23, 1998, at 17-18 (quoting Vriend v. Alberta, [1998] S.C.J. No. 29 (Q.L.), at para. 122). Once a court has determined that a discriminatory classification has deprived plaintiffs of a constitutionally ripe entitlement, the court must decide if the classification “is demonstrably justifiable in a free and democratic society, not whether there might be a more propitious time to remedy it.” Id. at 18.

Today’s decision, which is little more than a declaration of rights, abdicates that responsibility. The majority declares that plaintiffs have been unconstitutionally deprived of the benefits of marriage, but does not hold that the marriage laws are unconstitutional, does not hold that plaintiffs are entitled to the license that triggers those benefits, and does not provide plaintiffs with any other specific or direct remedy for the constitutional violation that the Court has found to exist. By suspending its judgment and allowing the Legislature to choose a remedy, the majority, in effect, issues an advisory opinion that leaves plaintiffs without redress and sends the matter to an uncertain fate in the Legislature. Cf. In re Williams, 154 Vt. 318, 318-19, 321 , 577 A.2d 686, 686-87 (1990) (statute requiring district court to hold hearings, issue findings, and advise local legislative bodies concerning alleged police misconduct violated separation of powers between judicial and legislative branches by requiring courts to give advisory opinions, upon which municipalities might or might not act). Ironically, today’s mandate will only increase “the uncertainty and confusion” that the majority states it is designed to avoid. 170 Vt. at 225, 744 A.2d at 887.

No decision of this Court will abate the moral and political debate over same-sex marriage. My view as to the appropriateness of granting plaintiffs the license they seek is not based on any overestimate (or any estimate) of its effectiveness, nor on a miscalculation (or any calculation) as to its likely permanence, were it to have received the support of a majority of this Court. Rather, it is based on what I believe are the commands of our Constitution.

II.

Although I concur with the majority’s conclusion that Vermont law unconstitutionally excludes same-sex couples from the benefits of *252 marriage, I write separately to state my belief that this is a straightforward case of sex discrimination.

As I argue below, the marriage statutes establish a classification based on sex. Whether such classification is legally justifiable should be analyzed under our common-benefits jurisprudence, which until today, has been closely akin to the federal equal-protection analysis under the Fourteenth Amendment. Therefore, the State must show that the classification is narrowly tailored to further important, if not compelling, interests. Not only do the rationalizations advanced by the State fail to pass constitutional muster under this or any other form of heightened scrutiny, 8 they fail to satisfy the rational-basis test as articulated under the Common Benefits Clause. 9

“We have held that the Common Benefits Clause in the Vermont Constitution, see ch. I, art. 7, is generally coextensive with the equivalent guarantee in the United States Constitution, and imports similar methods of analysis.” Brigham, 166 Vt. at 265 , 692 A.2d at 395 ; see also Lorrain, 160 Vt. at 212 , 628 A.2d at 550 (test under Common Benefits Clause is same as test under federal Equal Protection Clause). Where the statutory scheme affects a fundamental constitutional right or involves a suspect classification, “the State must demonstrate that any discrimination occasioned by the law serves a compelling governmental interest, and is narrowly tailored to serve that objective.” Brigham, 166 Vt. at 265 , 692 A.2d at 396 . Otherwise, classifications are constitutional if they are “reasonably related to the promotion of a valid public purpose.” MacCallum, 165 Vt. at 457 , 686 A.2d at 937-38 .

*253 As the majority states, the marriage “statutes, read as a whole, reflect the common understanding that marriage under Vermont law consists of a union between a man and a woman.” 170 Vt. at 200, 744 A.2d at 869. Thus, the statutes impose a sex-based classification. See, e.g., Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, *6, 1998 WL 88743 (Alaska Super. Feb. 27, 1998) (prohibition on same-sex marriage is sex-based classification); Baehr v. Lewin, 852 P.2d 44, 64 (Haw. 1993) (Levinson, J., plurality opinion) (same). A woman is denied the right to marry another woman because her would-be partner is a woman, not because one or both are lesbians. Similarly, a man is denied the right to marry another man because his would-be partner is a man, not because one or both are gay. Thus, an individual’s right to marry a person of the same sex is prohibited solely on the basis of sex, not on the basis of sexual orientation. Indeed, sexual orientation does not appear as a qualification for marriage under the marriage statutes. The State makes no inquiry into the sexual practices or identities of a couple seeking a license.

The State advances two arguments in support of its position that Vermont’s marriage laws do not establish a sex-based classification. The State first contends that the marriage statutes merely acknowledge that marriage, by its very nature, cannot be comprised of two persons of the same sex. Thus, in the State’s view, it is the definition of marriage, not the statutes, that restricts marriage to two people of the opposite sex. This argument is circular. It is the State that defines civil marriage under its statute. The issue before us today is whether the State may continue to deprive same-sex couples of the benefits of marriage. This question is not resolved by resorting to a historical definition of marriage; it is that very definition that is being challenged in this case.

The State’s second argument, also propounded by the majority, see 170 Vt. at 215-16 n.13, 744 A.2d at 880 n.13, is that the marriage statutes do not discriminate on the basis of sex because they treat similarly situated males the same as similarly situated females. Under this argument, • there can be no sex discrimination here because “[i]f a man wants to marry a man, he is barred; a woman seeking to marry a woman is barred in precisely the same way. For this reason, women and men are not treated differently.” C. Sunstein, Homosexuality and the Constitution, 70 Ind. L.J. 1 , 19 (1994). But consider the following example. Dr. A and Dr. B both want to marry Ms. C, an X-ray technician. Dr. A may do so because Dr. A is a man. Dr. B may not because Dr. B is a woman. Dr. A and Dr. B are people *254 of opposite sexes who are similarly situated in the sense that they both want to marry a person of their choice. The statute disqualifies Dr. B from marriage solely on the basis of her sex and treats her differently from Dr. A, a man. This is sex discrimination. 10

I recognize, of course, that although the classification here is sex-based on its face, its most direct impact is on lesbians and gay men, the class of individuals most likely to seek same-sex marriage. Viewing the discrimination as sex-based, however, is important. Although the original purpose of the marriage statutes was not to exclude same-sex couples, for the simple reason that same-sex marriage was very likely not on the minds of the Legislature when it passed the licensing statute, the preservation of the sex-based classification deprives lesbians and gay men of the right to marry the life partner of their choice. If, as I argue below, the sex-based classification contained in the marriage laws is unrelated to any valid purpose, but rather is a vestige of sex-role stereotyping that applies to both men and women, the classification is still unlawful sex discrimination even if it applies equally to men and women. See MacCallum, 165 Vt. at 459 , 686 A.2d at 939 (Constitution does not permit law to give effect, either directly or indirectly, to private biases; when government itself makes the classification, it is obliged to afford all persons equal protection of the law); Loving v. Virginia, 388 U.S. 1, 8-9, 11 (1967) (statute prohibiting racial intermarriage violates Equal Protection Clause although it applies equally to Whites and Blacks because classification was designed to maintain White Supremacy.) 11

*255 Although Vermont has not had occasion to consider the question, most, if not all, courts have held that the denial of rights or benefits on the basis of sex subject the state’s action to some level of heightened scrutiny. 12 This is so because the sex of an individual “frequently bears no relation to ability to perform or contribute to society.” Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (plurality opinion). Moreover, in some cases, such as here, sex-based classifications “very likely reflect outmoded notions of the relative capabilities of men and women.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 441 (1985).

I do not believe that it is necessary to reach the question in this case, however, because in my view, the justifications asserted by the State do not satisfy even our rational-basis standard under the Common Benefits Clause, which requires that the classification be “reasonably related to the promotion of a valid public purpose.” MacCallum, 165 Vt. at 457 n.1, 686 A.2d at 938 n.1 (because statute failed to pass constitutional muster under rational-basis test, no need to determine whether adopted persons are suspect class). 13 In MacCallum , we invalidated, under the Common Benefits Clause, a *256 statute denying an adopted person’s right of inheritance from collateral kin, stating that the statute was grounded on outdated prejudices instead of a valid public purpose. See id. at 460-62 , 686 A.2d at 939 -41: Rather than blindly accept any conceivable justification proffered by the State in that case, we carefully considered the State’s rationales to determine whether the discriminatory classification rested upon a reasonable consideration of legislative policy. See id. at 457, 459-61 , *257 696 A.2d at 938, 939-40; see also Romer v. Evans, 517 U.S. 620, 635-36 (1996) (state constitutional amendment prohibiting all legislative, executive, or judicial action designed to protect homosexuals from discrimination violated Equal Protection Clause under rational-basis test because it was discriminatory and had no proper legislative end); Cleburne, 473 U.S. at 450 (ordinance requiring special use permit for operation of home for mentally retarded violated Equal Protection Clause under rational basis test because it rested on irrational prejudice rather than legitimate government purpose).

Before applying the rational-basis standard to the State’s justifications, it is helpful to examine the history of the marriage laws in Vermont. There is no doubt that, historically, the marriage laws imposed sex-based roles for the partners to a marriage — male provider and female dependent — that bore no relation to their inherent abilities to contribute to society. Under the common law, husband and wife were one person. See R. & E. Builders, Inc. v. Chandler, 144 Vt. 302, 303-04 , 476 A.2d 540, 541 (1984). The legal existence of a woman was suspended by marriage; she merged with her husband and held no separate rights to enter into a contract or execute a deed. See id. She could not sue without her husband’s consent or be sued without joining her husband as a defendant. See id. Moreover, if a woman did not hold property for her “sole and separate use” prior to marriage, the husband received a freehold interest in all her property, entitling him to all the rents and profits from the property. See id.

Starting in the late nineteenth century, Vermont, like other states, began to enact statutes, such as the Rights of Married Women Act, see 15 V.S.A. §§ 61-69, to grant married women property and contractual rights independent of their husbands. See Medical Ctr. Hosp. v. Lorrain, 165 Vt. 12, 14 , 675 A.2d 1326, 1328 (1996). The Legislature’s intent in enacting the Rights of Married Women Act was to “rejectG the archaic principle that husband and wife are ‘one person,”’ and “to set a married woman free ‘from the thraldom of the common law.’” Richard v. Richard, 131 Vt. 98, 102, 106 , 300 A.2d 637, 639, 641 (1973). Thus, we recognized that the legal existence of married women was no longer merged into that of their husbands, see Lorrain, 165 Vt. at 15 , 675 A.2d at 1329 , and that “a married woman is a ‘person’ under the Constitution of Vermont.” Richard, 131 Vt. at 106 , 300 A.2d at 641 .

Today, the partners to a marriage are equal before the law. See R. & E. Builders, 144 Vt. at 304 , 476 A.2d at 541 (modern statutes *258 attempt to accord wives legal rights equal to husbands). A married woman may now enter contracts, sue and be sued without joining her husband, purchase and convey property separate from her husband, own property, and collect rents and profits from it. See Lorrain, 165 Vt. at 15 , 675 A.2d at 1329 (women have property and contractual rights equal to men regardless of their marital status). As the Legislature enacted statutes to confer rights upon married women, this Court abolished common-law doctrines arising from the common law theory that husband and wife were one person and that the wife had no independent legal existence. See, e.g., Richard, 131 Vt. at 106 , 300 A.2d at 641 (abolishing interspousal immunity, which was based on “archaic principle” that husband and wife are one person, to allow passenger wife to sue husband for personal injuries arising from husband’s negligence in operating automobile).

The question now is whether the sex-based classification in the marriage law is simply a vestige of the common-law unequal marriage relationship or whether there is some valid governmental purpose for the classification today. See MacCallum, 165 Vt. at 460-62 , 686 A.2d at 939-41 (State’s rationales proffered to validate statutory classification cannot rest on outdated presumptions not reasonable today when vast cultural and social changes have occurred). In support of the marriage statutes, the State advances public purposes that fall into three general categories.

In the first category, the State asserts public purposes — uniting men and women to celebrate the “complementarity” (sic) of the sexes and providing male and female role models for children — based on broad and vague generalizations about the roles of men and women that reflect outdated sex-role stereotyping. The State contends that (1) marriage unites the rich physical and psychological differences between the sexes; (2) sex differences strengthen and stabilize a marriage; (3) each sex contributes differently to a family unit and to society; and (4) uniting the different male and female qualities and contributions in the same institution instructs the young of the value of such a union. The State relies on social science literature, such as Carol Gilligan’s In a Different Voice: Psychological Theory and Women’s Development (1982), to support its contention that there are sex differences that justify the State requiring two people to be of opposite sex to marry.

The State attempts to analogize this case to the changes in law brought about by women’s participation in the legal profession starting in the 1970s, arguing that women have brought a different *259 voice to legal theory and practice. The State also points to United States v. Virginia, 518 U.S. 515, 538 (1996) (hereinafter VMI), arguing that an institution or community made up exclusively of one sex is different from a community composed of both. The goal of diversity has been recognized to justify affirmative action programs in public broadcasting and education. See, e.g., Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 567-68 (1990) (holding that state interest in racial diversity in broadcasting justified affirmative-action racial classification); Regents of Univ. of Calif. v. Bakke, 438 U.S. 265, 311-19 (1978) (opinion of Powell, J.) (endorsing race classification in university admission as legitimate means of achieving diversity). Similarly, the recognition that women may contribute differently from men is a valid argument for women’s full participation in all aspects of public life. The goal of community diversity has no place, however, as a requirement of marriage.

To begin with, carried to its logical conclusion, the State’s rationale could require all marriages to be between people, not just of the opposite sex, but of different races, religions, national origins, and so forth, to promote diversity. Moreover, while it may be true that the female voice or point of view is sometimes different from the male, such differences are not necessarily found in comparing any given man and any given woman. The State’s implicit assertion otherwise is sex stereotyping of the most retrograde sort. Nor could the State show that the undoubted differences between any given man and woman who wish to marry are more related to their sex than to other characteristics and life experiences. In short, the “diversity” argument is based on illogical conclusions from stereotypical imaginings that would be condemned by the very case cited for its support. See VMI, 518 U.S. at 533 (justifications for sex-based classifications “must not rely on overbroad generalizations about the different talents, capabilities, or preferences of males and females.”).

In the second category, the State asserts, under several different guises, the public purpose of maintaining the sex-based classification. First, the State claims an interest in “preserving the existing marital structure.” Second, the State claims an interest in “instructing the young of the value of uniting male and female qualities.” This is mere tautology. The State’s objective is to preserve the status quo, but that does not address the question of whether the classification can be justified. Perpetuating the classification, in and of itself, is not a valid purpose for the classification. See id. at 545 (rejecting as circular governmental justification that sex-based classification is essential to governmental objective of single-sex education).

*260 Many of the State’s remaining justifications, which I place into a third category, assume highly questionable public purposes. But because none of these justifications are even remotely, much less reasonably, related to the challenged classification, I accept, for the sake of argument, the premise that each of them concerns a legitimate state interest.

The State contends, for example, that prohibiting individuals from marrying a person of the same sex promotes the public purpose of minimizing custody and visitation disputes arising from surrogacy contracts because the prohibition may deter use of technologically assisted reproduction by same-sex couples. Further, the State argues that increased use of technologically assisted reproduction “may lead men who conceive children by sexual union to perceive themselves as sperm donors, without any responsibility for their offspring.” Both of these reasons suffer from the same constitutional deficiency. If the state purpose is to discourage technologically assisted reproduction, I agree with the majority that the classification is significantly underinclusive. The State does nothing to discourage technologically assisted reproduction by individuals or opposite-sex couples. Moreover, opposite-sex couples may obtain marriage licenses without regard to whether or not they will use technologically assisted reproduction. 14 The public purpose provides no rationale for the different treatment.

The State also asserts that it has an interest in furthering the link between procreation and child rearing “to ensure that couples who engage in sexual intercourse accept[] responsibility for the potential children they might create.” But the State cannot explain how the failure of opposite-sex couples to accept responsibility for the children they create relates at all to the exclusion of same-sex couples from the benefits of marriage. To the extent that couples, same-sex or opposite-sex, will fail to take responsibility for the children they create, the risk is greater where the couples are not married. Therefore, denying same-sex couples the benefits of marriage on this ground is not only arbitrary but completely at odds with the stated government purpose.

The State further contends that prohibiting individuals from marrying same-sex partners will deter marriages of convenience *261 entered into solely to obtain tax benefits or government assistance. Two persons of the opposite sex are completely free to enter into a marriage of convenience, however, without the State examining their motives. Indeed, the pool of opposite-sex couples who may choose to enter into such marriages is much greater than the pool of same-sex couples. Once again, the public purpose provides no rationale for treating individuals who choose same-sex partners differently from those who choose opposite-sex partners.

Although “[a] statute need not regulate the whole of a field to pass constitutional muster,” Benning v. State, 161 Vt. 472, 486 , 641 A.2d 757, 764 (1994), there still must be some rational basis for an underinclusive classification. Here, none of the alleged governmental purposes within the third category of State justifications provides a rational basis for treating similarly situated people differently, or for applying the classification in an underinclusive manner. See Cleburne, 473 U.S. at 446 (State may not impose classification where relationship to asserted goal is so attenuated as to render distinction arbitrary or irrational). The State’s justifications are nothing more than post-hoc rationalizations completely unrelated to any rational reason for excluding same-sex couples from obtaining the benefits of marriage.

Finally, the State claims a valid public purpose in adopting a classification to align itself with the other states. The Vermont Constitution is freestanding authority, however, and may protect rights not protected under the federal constitution or other state constitutions. Brigham, 166 Vt. at 257, 268 , 692 A.2d at 391, 397 (recognizing right to equal education under Vermont Constitution, while acknowledging that this right is not recognized under federal constitution and is recognized under only some state constitutions). This Court does not limit the protections the Vermont Constitution confers on Vermonters solely to make Vermont law consistent with that of other states. See id. at 257 , 692 A.2d at 391 (decisions in other states are of limited precedential value because each state’s constitutional evolution is unique). Indeed, as the majority notes, Vermont’s marriage laws are already distinct in several ways from the laws of other states.

In sum, the State treats similarly situated people — those who wish to marry — differently, on the basis of the sex of the person they wish to marry. The State provides no legally valid rationale for the different treatment. The justifications asserted by the State for the classification are tautological, wholly arbitrary, or based on impermis *262 sible assumptions about the roles of men and women. None of the State’s justifications meets the rational-basis test under the Common Benefits Clause. Finding no legally valid justification for the sex-based classification, I conclude that the classification is a vestige of the historical unequal marriage relationship that more recent legislative enactments and our own jurisprudence have unequivocally rejected. The protections conferred on Vermonters by the Common Benefits Clause cannot be restricted by the outmoded conception that marriage requires one man and one woman, creating one person — the husband. As this Court recently stated, “equal protection of the laws cannot be limited by eighteenth-century standards.” See Brigham, 166 Vt. at 267 , 692 A.2d at 396 .

III.

This case is undoubtedly one of the most controversial ever to come before this Court. Newspaper, radio and television media have disclosed widespread public interest in its outcome, as well as the full spectrum of opinion as to what that outcome should be and what its ramifications may be for our society as a whole. One line of opinion contends that this is an issue that ought to be decided only by the most broadly democratic of our governmental institutions, the Legislature, and that the small group of men and women comprising this Court has no business deciding an issue of such enormous moment. For better or for worse, however, this is simply not so. This case came before us because citizens of the state invoked their constitutional right to seek redress through the judicial process of a perceived deprivation under state law. The Vermont Constitution does not permit the courts to decline to adjudicate a matter because its subject is controversial, or because the outcome may be deeply offensive to the strongly held beliefs of many of our citizens. We do not have, as does the Supreme Court of the United States, certiorari jurisdiction, which allows that Court, in its sole discretion, to decline to hear almost any case. To the contrary, if a case has been brought before us, and if the established procedures have been followed, as they were here, we must hear and decide it.

Moreover, we must decide the case on legal grounds. However much history, sociology, religious belief, personal experience or other considerations may inform our individual or collective deliberations, we must decide this case, and all cases, on the basis of our understanding of the law, and the law alone. This must be the true and constant effort of every member of the judiciary. That effort, needless *263 to say, is not a guarantee of infallibility, nor even an assurance of wisdom. It is, however, the fulfillment of our pledge of office.

In the 1999 legislative session, while the instant case was pending before this Court, fifty-seven representatives signed H. 479, which sought to amend the marriage statutes by providing that a man shall not marry another man, and a woman shall not marry another woman.

Although the State’s licensing procedures do not signal official approval or recognition of any particular lifestyles or relationships, commentators have noted that denying same-sex couples a marriage license is viewed by many as indicating that same-sex relationships are not entitled to the same status as opposite-sex relationships. See, e.g., C. Christensen, If Not Marriage? On Securing Gay and Lesbian Family Values by a “Similacrum of Marriage”, 66 Fordham L. Rev. 1699 , 1783-84 (1998) (most far reaching consequence of legalizing same-sex marriage would be symbolic shedding of sexual outlaw image and civil recognition of shared humanity); D. Chambers, What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L. Rev. 447 , 450 (1996) (allowing same-sex couples to marry would signify acknowledgement of same-sex couples as equal citizens). This Court has recognized that singling out a particular group for special treatment may have a stigmatizing effect more significant than any economic consequences. See MacCallum v. Seymour’s Administrator, 165 Vt. 452, 460 , 686 A.2d 935, 939 (1996) (noting that symbolic and psychological damage resulting from unconstitutional classification depriving adopted children of right to inherit from collateral kin may be more significant than any concern over material values). The United States Supreme Court has also recognized this phenomenon. See Romer v. Evans, 517 U.S. 620, 634 (1996) (laws singling out gays and lesbians for special treatment “raise the inevital *244 inference that the disadvantage imposed is born of animosity toward the class of persons affected”); Heckler v. Mathews, 465 U.S. 728, 739-40 (1984) (stigmatizing members of disfavored group as less worthy participants in community “can cause serious noneconomic injuries . . . solely because of their membership in a disfavored group”). Because enjoining defendants from denying plaintiffs a marriage license is the most effective and complete way to remedy the constitutional violation we have found, it is not necessary to reach the issue of whether depriving plaintiffs of the “status” of being able to obtain the same state-conferred marriage license provided to opposite-sex couples violates their civil rights.

Unlike the Vermont Constitution, see Vt. Const. ch. II, § 5 (“The Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others.”), the United States Constitution does not contain an explicit separation-of-powers provision; however, the United States Supreme Court has derived a separation-of-powers requirement from the federal constitution’s statement of the powers of each of the branches of government. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721-22 (1986). Because we have relied upon federal separation-of-powers jurisprudence in interpreting Chapter II, § 5, see Trybulski v. Bellows Falls Hydro-Elec. Corp., 112 Vt. 1, 7 , 20 A.2d 117 , 120 (1941), I draw upon federal case law for analysis and support in discussing separation-of-powers principles. See In re D.L., 164 Vt. 223 , 228 n.3, 669 A.2d 1172 , 1176 n.3 (1995); see also In re Constitutionality of House Bill 88, 115 Vt. 524, 529 , 64 A.2d 169, 172 (1949) (noting that judicial power of Vermont Supreme Court and United States Supreme Court is same).

I do not misinterpret the majority’s holding. See 170 Vt. at 226, 744 A.2d at 887. I am aware that the Legislature is not obligated to give plaintiffs a marriage license, or any other remedy for that matter. It is this Court, not the Legislature, that has the duty to remedy the constitutional violation we have found. We are left to speculate why the majority is not enjoining defendants from denying plaintiffs the regulatory license that they seek and that would entitle them to the same benefits and protections to which they are entitled under the majority’s holding.

The majority states that my analogy to the circumstances in Watson is “flawed” because (1) we are not confronting the evil of institutionalized racism; and (2) our ruling, today is “decidedly new doctrine.” 170 Vt. at 226-27, 744 A.2d at 888. The majority’s first point implies that our duty to remedy unconstitutional discrimination is somehow limited when that discrimination is based on sex or sexual orientation rather than race. I would not prioritize among types of civil rights violations; our duty to remedy them is the same, once a constitutional violation is found.

Regarding the second point, the Court in Watson enunciated “the usual principle that any deprivation of constitutional rights calls for prompt rectification,” stating further that the unavoidable delay in implementing the desegregation of schools ordered in Brown v. Board of Education, 347 U.S. 483 (1954), was “a narrowly drawn, and carefully limited, qualification upon usual precepts of constitutional adjudication and is not to be unnecessarily expanded in application.” 373 U.S. at 532-33 . The majority has not explained why it is diverging from that basic principle in this case. Further, as both the majority and concurrence acknowledge, see 170 Vt. at 222-24, 744 A.2d at 884-86; id. at 232, 744 A.2d at 891 (Dooley, J., concurring), allowing same-sex couples to obtain the benefits and protections of marriage is a logical extension of Vermont’s legislatively enacted public policy prohibiting discrimination on the basis of sex and sexual orientation, see 1991, No. 135 (Adj. Sess.), decriminalizing consensual homosexual conduct between adults, see 1977, No. 51, § 22, and permitting same-sex partners to adopt children, see 15A VS.A. § l-102(b) (codifying holding in B.L.V.B., 160 Vt. at 369 , 628 A.2d at 1272 , which allowed same-sex partner of natural parent to adopt parent’s child without terminating parent’s rights); 15A V.S.A. § 1-112 (giving family court jurisdiction to adjudicate issues pertaining to parental rights and responsibilities *249 and child support with respect to adopted children of domestic partners). Yet, the majority suggests that there is “wisdom” in delaying relief for plaintiffs until the Legislature has had a chance to act, 170 Vt. at 227-28, 744 A.2d at 888, much as the City of Memphis urged the “wisdom of proceeding slowly and gradually in its desegregation efforts.” Watson, 373 U.S. at 528 .

This rule requires the exclusion of evidence obtained as the result of unconstitutional searches and seizures.

Judicial authority is not, however, the ultimate source of constitutional authority. Within our constitutional framework, the people are the final arbiters of what law governs us; they retain the power to amend our fundamental law. If the people of Vermont wish to overturn a constitutionally based decision, as happened in Alaska and Hawaii, they may do so. The possibility that they may do so, however, should not, in my view, deprive these plaintiffs of the remedy to which they are entitled.

The majority misconstrues my opinion. See 170 Vt. at 215-16 n.13, 744 A.2d at 880 n.13. I do not reach the issue of whether heightened scrutiny is appropriate for sex-based classifications under the Common Benefits Clause. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347 (1936) (Brandéis, J., concurring) (courts should not formulate rules of constitutional law broader than is required by precise facts to which they are to be applied). I mention federal law and that of other states merely to acknowledge the approach of other jurisdictions on an issue that we have not yet decided. I analyze the sex-based classification under our current test for rational-basis review.

In its brief, the State notes that if the Court declares that heightened scrutiny is applicable, it might offer additional arguments and justifications to demonstrate a compelling State interest in the marriage statutes. Obviously, in its extensive filings both in the trial court and here, which included a one-hundred-page appellate brief, the State made every conceivable argument in support of the marriage laws, including what it perceived to be its best arguments. For the reasons stated by the majority, see 170 Vt. at 198 n.1, 223 n.14, 744 A.2d at 868 n.1, 885 n.14, I agree that it would be pointless to remand this matter for further proceedings in the trial court.

Under the State’s analysis, a statute that required courts to give custody of male children to fathers and female children to mothers would not be sex discrimination. Although such a law would not treat men and women differently, I believe it would discriminate on the basis of sex. Apparently, the Legislature agrees. By prohibiting consideration of the sex of the chüd or parent in custody decisions, see 15 VS.A. § 665(c), the Legislature undoubtedly intended to prohibit sex discrimination, even if the rules applied equally to men and women. See Harris v. Harris, 162 Vt. 174, 182 , 647 A.2d 309, 314 (1994) (stating the family court’s custody decision would have to be reversed if it had been based on preference that child remain with his father because of his gender).

I do not contend, as the majority suggests, that the real purpose of the exclusion of same-sex partners from the marriage laws was to maintain certain male and female stereotypes. See 170 Vt. at 216 n.13, 744 A.2d at 880 n.13. As noted above, I agree that the original purpose was very likely not intentionally discriminatory toward same-sex couples. The question is whether the State may maintain a classification today only by giving credence to generally discredited sex-role stereotyping. I believe our decision in MacCallum says no. See Sunstein, supra, at 23, 27 (exclusion of same-sex couples from marriage is, in reality, impermissible sex-role stereotyping, and therefore, is discrim *255 ination on basis of sex); J. Cuihane, Uprooting the Arguments Against Same-Sex Marriage, 20 Cardozo L. Rev. 1119 , 1171-75 (1999) (accord).

See, e.g., United States v. Virginia, 518 U.S. 515, 533 (1996) (concluding that sex-based classifications are subject to heightened standard of review less rigorous than that imposed for race or national origin classifications); Frontiero, 411 U.S. at 684, 686 (plurality opinion) (concluding that sex is suspect classification under two-part test inquiring whether class is defined by immutable characteristic and whether there is history of invidious discrimination against class); Sail’er Inn, Inc. v. Kirby, 485 P.2d 529, 540 (Cal. 1971) (applying federal two-part test and concluding that sex is immutable trait and women have historically labored under severe legal and social disabilities); Hewitt v. State Accident Ins. Fund Corp., 653 P.2d 970, 977 (Or. 1982) (applying federal two-part test and concluding that sex is immutable personal characteristic and purposeful unequal treatment of women is well known).

The question remains why I feel it is necessary to identify the class of persons being discriminated against in this case if the majority and I reach the same conclusion. It is important because I have concerns about the test that the majority devises to review equal-protection challenges under the Common Benefits Clause. The majority rejects the notion that the Court should accord some measure of heightened scrutiny for classifications denying benefits to historically disadvantaged groups. It argues that the history of the Common Benefits Clause supports the Court’s adoption of a uniform standard that is reflective of the broad inclusionary principle at its core. Therefore, rather than accord any particular group heightened scrutiny, it will balance all the factors in the case and reach a just result. While this notion is superficially attractive in its attempt to achieve fundamental fairness for all Vermonters, it is flawed with respect to an equal-protection analysis. The guarantee of equal protection is about fundamental fairness in a large sense, but its most important purpose is to secure the rights of historically disadvantaged groups whose exclusion from full participation in all facets of society has resulted from hatred and prejudice.

*256 I share Justice Dooley’s concern that the new standard enunciated by the majority may not give sufficient deference to the Legislature’s judgment in economic and commercial legislation. See 170 Vt. at 239-40, 744 A.2d at 896-97 (Dooley, J., concurring). It is the Legislature’s prerogative to decide whether, for example, to give “optometrists” more protection than “opticians.” See Cleburne, 473 U.S. at 471 (Marshall, J., concurring in part and dissenting in part). Such classifications ought not to become a matter of serious constitutional review, even though optometrists and opticians comprise “a part of the community” and may have vital economic interests in the manner in which they are regulated. I am certain the majority would agree with that proposition and argue that its balancing of all the relevant factors in that kind of a case would not result in striking down a classification that treated those two groups differently. But therein lies my concern with the majority’s approach. Although we might agree on the optometrists/opticians classification, a balancing of all relevant factors in all equal-protection cases puts the rule of law at “excessive risk.” C. Sunstein, Foreward: Leaving Things Undecided, 110 Harv. L. Rev. 4 , 78 (1996). As Professor Sunstein explains:

The use of “tiers” has two important goals. The first is to ensure that courts are most skeptical in cases in which it is highly predictable that illegitimate motives are at work. . . . The second goal of a tiered system is to discipline judicial discretion while promoting planning and predictability for future eases. Without tiers, it would be difficult to predict judicial judgments under the Equal Protection Clause, and judges would make decisions based on ad hoc assessments of the equities. The Chancellor’s foot[*] is not a promising basis for antidiscrimination law.

Id. The majority argues that subjective judgment is required to make choices about classes who are entitled to heightened review and, therefore, that a tiered approach is not more precise than the balancing-of-factors approach. See 170 Vt. at 213 n.10, 744 A.2d at 878 n.10. But, in choosing the suspect class, it would be incumbent upon the Court to articulate its rationale, thereby providing predictive value in future cases of discrimination rather than depending on the perspicacity of judges to see it. Cleburne, 473 U.S. at 466 (Marshall, J., concurring in part and dissenting in part).

[*The reference to the Chancellor’s foot in the Sunstein quote is from John Seldon’s (1584-1654) critique of equity, which is relevant here:]

Equity is a roguish thing. For Law we have a measure, know what to trust to; Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. ’Tis all one as if they should make the standard for the measure we call a “foot” a Chancellor’s foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot. ’Tis the same thing in the Chancellor’s conscience.

J. Bartlett, Familiar Quotations 263 (15th ed. 1980).

The State does not address the apparent conflict between the public purposes it asserts and the legislative policy of this State. Vermont does not prohibit the donation of sperm or the use of technologically assisted methods of reproduction. Thus, same-sex partners and single individuals may use technologically assisted reproduction, all without the benefit of marriage. It is impossible to accept that the classification in the marriage statutes serves as a reasonable deterrent to such methods.