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Vermont gay couples tell court why they should be allowed to marry

Vermont Supreme Court
Vermont Supreme Court
CNN's Bill Delaney reports from Montpelier, Vermont
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In this story:

November 18, 1998
Web posted at: 8:27 p.m. EST (0127 GMT)

MONTPELIER, Vermont (CNN) -- Vermont's prohibition on marriage for gay and lesbian couples is an unlawful form of discrimination, akin to bans on interracial marriages earlier in the century, lawyers for three same-sex couples told the state's highest court Wednesday.

Before a packed courtroom, Vermont's five Supreme Court justices heard arguments seeking to overturn a 1975 opinion by Vermont's attorney general defining marriage as a union between a "bride and a groom."

Should the suit succeed, Vermont could become the first U.S. state to open civil marriage to gay men and lesbians. The suit is the latest legal maneuver by gay rights groups trying to win the right to marry in the United States.

Liberal-leaning Vermont is seen as fertile ground by gay marriage advocates because it is one of a handful of states outlawing housing or employment discrimination based on sexual orientation. Vermont also allows gay and lesbian couples to adopt children.

Spectators lined up before dawn on the snow-covered steps of the courthouse, hoping to get one of 80 gallery seats. An overflow crowd of people from as far away as Mississippi watched the proceedings via closed-circuit television in the second-floor lobby.

State: Marriage decisions best left to legislature

While Vermont's justices normally set aside only 15 to 30 minutes for each side's arguments, they allowed both proponents and opponents of gay marriage to argue for a full hour Wednesday.

Beth Robinson, an attorney for the plaintiffs, compared the Vermont case to a 1948 decision by the California Supreme Court overturning a law barring interracial marriage. At the time, 40 states prohibited such marriages.

"The notion of a black person and a white person marrying was as antithetical to many people's conceptions of what a marriage was as the notion of a man marrying a man or a woman marrying a woman," Robinson said. "That California decision was controversial, courageous and correct."

But Vermont Assistant Attorney General Eve Jacobs-Carnahan, defending the ban, said the couples were making "a request for something that's never been done before." She said the state legislature, not the Supreme Court, should settle the issue.

While conceding that Vermont citizens had a "fundamental right" to marry, Jacobs-Carnahan also said that right is limited to marriages between one man and one woman, adding that the purpose of marriage is biological procreation.

That prompted one justice to ask that if at some point in the future "same-sex couples can biologically have children, what will happen to the foundation for the law then?"

"I would have to say we will have to wait until that happens," Jacobs-Carnahan replied.

Case comes on heels of anti-gay marriage votes

Just two weeks ago, residents in Alaska and Hawaii voted to reverse court decisions in those states that could have legalized gay and lesbian marriages.

In Hawaii, voters passed a constitutional amendment authorizing the legislature to outlaw gay marriage, undoing an earlier Hawaii Supreme Court ruling that the constitution prohibited the state from outlawing same-sex marriages unless it could provide a compelling justification for doing so.

While that Hawaii court ruling didn't specifically authorize same-sex marriages, proponents were confident that the state would never be able to meet the legal burden set down by the court. And because states generally recognize marriages performed in any other state, the ruling could have opened up marriage to gay and lesbian couples across the country.

Fearful of that possibility, Congress and legislatures in about half the states passed "defense of marriage" laws specifically to deny legal recognition to gay and lesbian couples.

In Alaska on November 3, voters wrote a ban on same-sex marriages into their state constitution, reversing a lower court ruling favorable to gay unions.

Puterbaugh and Farnham
Puterbaugh, right front, and Farnham watch the court proceedings  
Harrigan and Baker
Peter Harrigan and Stan Baker talk with reporters outside the courtroom  

Plaintiff: 'We're in love'

Among the plaintiffs in the Vermont case are Peter Harrigan and his partner, Stan Baker.

"We have a mortgage together. We have a cat together," Harrigan said. "I think our life looks very similar to the lives of our neighbors, our family members, our co-workers."

Another plaintiff, Holly Puterbaugh, said she and her partner of 26 years, Lois Farnham, "want to get married for the same reason other people do. We're in love."

But Mary Schroyer, who heads a Vermont group opposed to same-sex marriages, sees danger in redefining who can marry.

"If you start to redefine, what about somebody who says, 'I'm in love with both a man and a woman'? Are we going to redefine them?" she said. "Or 'I'm in love with more than one person.' Do we redefine them?"

However, Mary Benauto, of the Boston-based group Gay and Lesbian Advocates and Defenders, which is working on the Vermont case, argues that allowing gay men and lesbians to marry won't affect non-gay couples.

"This is not a zero-sum gain for Vermont. This case is not going to take away anything from anyone else's marriage. The state doesn't have a limited supply of marriage licenses," she said.

Vermont's high court is expected to issue its decision sometime next year.

Correspondent Bill Delaney and Reuters contributed to this report.

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