State of the Unions

By Mubarak Dahir

Originally published on Advocate.com July 01 2010 11:25 AM ET

Late one night last summer Vermont resident Robert Dostis hurt his back, and his lover, Chuck Kletecka, hurried him to the local emergency room. When it appeared Dostis would need an overnight stay, Kletecka went to the admissions desk to fill out the necessary paperwork. But Kletecka was turned away. “You’re not the next of kin,” he was told.

In rushing to get Dostis to the hospital, it never occurred to Kletecka to grab the medical power of attorney sitting in an filing cabinet upstairs in their Waterbury Center home. Without the document, Kletecka was left powerless to advocate for his lover at the hospital.

“Fifteen years together,” Kletecka recalls, “and at that moment it meant nothing without a power of attorney in my back pocket.”

The memory of that night is just one reason Kletecka and Dostis plan to make their relationship official later this year when the newly passed Vermont law on gay and lesbian relationships kicks in this July. The “civil unions” law is the first of its kind in the nation to legally recognize gay and lesbian relationships and grant them every state-sanctioned privilege that married couples enjoy, with one notable exception: a marriage certificate.

The sweeping law will affect everything from inheritance to parenthood to state income tax returns—including the ability as the next of kin to make medical decisions, if necessary, for a hospitalized partner.

The new law “is something unprecedented from any court or legislature,” says Mary Bonauto of Gay and Lesbian Advocates and Defenders, a Boston-based legal group. “It changes everything.” Bonauto is the cocounsel in Baker v. State of Vermont, the case that led the state supreme court in December to order that same-sex couples be given the same rights and protections as married couples. Under the new law, a direct result of the Baker decision, registered gay and lesbian couples can take advantage of more than 300 Vermont statutes that previously bestowed benefits only on married couples.

“That’s the practical part of it,” says Stan Baker, one of the six plaintiffs in the case and the man whose name graces the landmark state supreme court ruling. As well as the material gains, Baker says, gays and lesbians win “public recognition that our relationships are valid and worth officially recognizing. So in addition to the tangible benefits are the social benefits.”

How tangible the results will be to gays and lesbians outside of Vermont is another question. Because the bill covers Vermont laws only, the effect of the legislation stops at the state border and carries no weight in other states. Because there is no residency requirement in the bill, gay and lesbian couples from other states can register their relationships in Vermont when they visit.

Still, gays and lesbians elsewhere will also reap many of the social benefits of the law. “When all the screaming, gnashing of teeth, and breast-beating is done, people across the country will come to see that only one thing has changed in Vermont: Life will be a little better for gay and lesbian citizens,” says Dick McCormack, vice chairman of the Vermont senate judiciary committee and the senate’s majority leader. When gay and lesbian advocates advance similar legislation in other states, they “will be able to point to Vermont as an example of how foolish all the hysteria [from the opposition] is.”

 Bill Lippert, the openly gay vice chairman of Vermont’s house judiciary committee, hopes the Vermont law offers the rest of gay and lesbian America “a renewed sense of inspiration and hopefulness, particularly in the face of the Knight initiative,” an anti–gay-marriage ballot measure passed by California voters in March, and similar state laws that define marriage as solely between a man and a woman.

Some legal experts say the long-term ramifications could add up to much more than feel-good psychology. In fact, Vermont might provide the blueprint that other states decide to copy. “Nationally, there can’t help but be legal influence,” asserts Greg Johnson, cocounsel in the Alaska same-sex marriage case Brause v. Alaska (currently on appeal to the state supreme court) and an assistant professor at Vermont Law School. “This sets an example for other states to follow.” He predicts “a lot of promise” for recognition of gay couples in all the New England states as well as Minnesota and California.

Evan Gerstmann, an assistant professor of political science at Loyola Marymount University in Los Angeles and author of The Constitutional Underclass: Gays, Lesbians and the Failure of Class-Based Equal Protection, agrees: “I would be very surprised if a number of states didn’t move along the Vermont model.” Gerstmann says many states have constitutional provisions similar to the “common benefits” and “equal protection” clauses that motivated the Vermont supreme court to mandate benefits for gay and lesbian couples. “What is unique about Vermont is the approach of judicial-legislative cooperation,” he says. “If you look at the political reality—extreme negative public reaction to courts trying to do this on their own—it’s clear that such a partnership is a more effective way to win results.”

Beth Robinson, cocounsel in the Baker case, even suggests the Vermont law might be used in the future to secure benefits for gays and lesbians outside the state. It’s possible that a couple who eventually leave Vermont might sue to have their union recognized elsewhere. “We’re plowing new legal ground, and how that plays itself out in other states remains to be seen,” she says.

Further litigation from gays and lesbians within Vermont, however, seems less likely in the near future. While the Vermont supreme court has retained jurisdiction in Baker and could thus be compelled to review whether or not the law fulfills the mandate to provide equal benefits, a majority of the plaintiffs do not appear eager to return to the courtroom.

Lois Farnham and Holly Puterbaugh, who have been together 27 years, were one of the three plaintiff couples in Baker. Puterbaugh admits her emotions sway between “the half-full, half-empty glass syndrome. Some days I am so excited at what we’ve accomplished. Other days I’m reminded it’s still not marriage.” Still, Farnham says the two “are most likely satisfied with things for now. I’m tired.”









Baker and his partner, Peter Harri-gan, feel the same way. “I’m looking forward to it being through,” Baker says with a sigh.

The victory in Vermont has not come easily. Gay and lesbian Vermonters and their supporters have sustained months of highly vocal, very public attacks from opponents. In drafting the law, both the house and senate judiciary committees held hearings in which gays and lesbians were called everything from perverts to child molesters. Right-wing activist Randall Terry, founder of the antiabortion group Operation Rescue, set up camp in the shadow of the statehouse and remained there for the duration. In the final weeks Republican presidential candidate Alan Keyes and Traditional Values Coalition head the Rev. Lou Sheldon visited the state to campaign against the impending legislation. And opponents took out full-page ads in local papers, denouncing the governor and listing home phone numbers of supportive legislators.

“The degree of ugliness and the volume of nastiness are things we’re not accustomed to here,” says Barbara Dozetos, editor of Out in the Mountains, Vermont’s statewide gay, lesbian, bisexual, and transgender newspaper. “It brought to the surface a lot of homophobia that previously lived silently in this state. The excitement has been mixed with equal parts pain.” As a result, she says, “the mood is not all celebration.”

And even the most ardent supporters of the new law cannot escape that it falls short of full equality. The law leaves unaddressed more than 1,000 federal benefits available to married couples but still denied gay and lesbian Vermonters. Dozetos and her girlfriend of three years afford just one example of how couples can still fall through the cracks. Dozetos’s girlfriend, a Canadian, is in the United States on a student visa. Even if the two register as a couple with the state of Vermont, the girlfriend still faces U.S. immigration rules that could force her to return home in August.

Some gays and lesbians are so skeptical of the law that they may not take advantage of it. “It codifies us as second-class citizens,” says Windham County resident Bari Shamas. Shamas and her partner of 15 years have not yet decided if they will register. She also expresses “reservations about registering with the government as queer.”

Defenders almost universally refer to the law with the same words as plaintiff Peter Harrigan: “A step in the right direction, toward marriage.”

Just how and when that next step might be taken, however, does not seem to be pressing on the minds of most gay and lesbian Vermonters. In fact, political insiders warn that in the near future the “next step” should not be pushing for gay marriage but protecting the new law from repeal.

In November every member of the Vermont legislature is up for reelection, as is the governor. Opponents have promised to make the gay issue paramount.

This law “will cost some people their political lives,” senate majority leader McCormack predicts—possibly even his own. “I’m from a county ready to lynch me,” he says.

Openly gay representative Lippert is adamant that continuing to push now for gay marriage could be a disastrous tactical error. “Legislators who supported this are vigorously and viciously being targeted for defeat. Our task right now is not to go for further relief,” he insists, “but to educate Vermonters to reelect legislators who showed courage.”

Even Vermont Freedom to Marry Task Force spokesman Chris Tebbetts concedes that “in the future, we can collect evidence of how this falls short of equality. But now is a time for healing.”

Tired of court battles and statehouse protests, many gay and lesbian Vermonters seem eager to put down their placards and finally capitalize on the hard-won benefits. Kletecka and Dostis are looking forward to turning their attention from the political to the personal as they begin planning a ceremony to accompany their union. “It’s been such a hard battle,” Kletecka declares. “Now I want a party.”