A court victory in Alaska was also squelched by voters at the polls. In February 1998, a trial court in Anchorage ruled in favor of two gay men who brought suit seeking a marriage license. The court based its decision on equal protection grounds, as the Hawaii court had, but in a judicial first, the Alaska court also held that denying plaintiffs a marriage license violated their right to privacy. The court held that the right to privacy, enshrined in Alaska's Constitution, included the right "to choose one's life partner."

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As in Hawaii, the court ordered the state to show a compelling reason for intruding on this right. The state never had to meet this challenge, however, since the Alaska legislature rushed through a proposed amendment to the constitution limiting marriage to opposite-sex couples. The amendment was ratified by the people of Alaska on the same day as the Hawaii amendment.

Vermont Civil Union

The biggest lasting victory so far in the struggle for marriage rights and responsibilities came in December 1999, with the Vermont Supreme Court's decision in Baker v. State. Two lesbian couples and one gay couple sued for marriage licenses, basing their claim on the Common Benefits Clause of the Vermont Constitution, a clause which states in part that "government is . . . instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons who are only a part of that community . . . ." The court saw this clause as expressing the founders' belief in "inclusion," and said that "at its core the Common Benefits Clause expressed a vision of government that afforded every Vermonter its benefit and protection and provided no Vermonter particular advantage."

The court unanimously declared the marriage laws unconstitutional since they advantaged opposite-sex couples and denied same-sex couples a host of benefits and protections. In ringing terms the court concluded, "The extension of the Common Benefits Clause to acknowledge plaintiffs as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity."

Alas, the court was nowhere near as forceful in its choice of remedy. One justice would have ordered the state to issue the plaintiffs marriage licenses immediately. However, the majority stopped short of this since it felt that a "sudden change in the marriage laws . . . might have disruptive and unforeseen consequences," although it did not elaborate on what these consequences might be. The court instead directed the legislature to craft a constitutionally permissible solution.

In a rancorous and extremely high profile debate, the Vermont legislature eventually passed the civil union law, which took effect on July 1, 2000. The civil union law entitles same-sex couples to "all the same benefits, protections and responsibilities" offered to opposite-sex couples who marry (Vt. Stat. Ann. tit. 15, § 1204(a)).

The registration process for civil union is the same as for marriage, and those seeking to dissolve a civil union must use the family court and follow the same law governing the dissolution of marriage, "including annulment, separation and divorce, child custody and support, and property division and maintenance" (Vt. Stat. Ann. tit. 15, § 1204(b)). Following passage of the civil union law the plaintiffs in Baker moved to withdraw their suit, and in December 2000, the Vermont Supreme Court dismissed the case.

Massachusetts

Same-sex marriage advocates may finally have achieved their breakthrough with the historic decision of the Massachusetts Supreme Judicial Court in Goodridge v. Dep't of Public Health (2003). In that case seven same-sex couples brought suit seeking the right to marry under the Massachusetts Constitution. The court found for the plaintiffs. It concluded, "a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law."

The court's opinion is filled with affirming language about the worth of same-sex relationships and the importance of marriage. The court rejected the argument that allowing same-sex marriage would somehow "trivialize or destroy the institution of marriage." To that it said, "the plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. . . . 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 recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race."

Unlike Baker, which was unanimous, the plaintiffs prevailed in Goodridge by a slim 4-3 majority. Justice Sosman in dissent argued "[t]he Legislature can rationally view the state of the scientific study as unsettled on the critical question it now faces: are families headed by same-sex parents equally successful in rearing children from infancy to adulthood as families headed by parents of opposite sexes?" Justice Cordy added, "the Legislature could conclude that redefining the institution of marriage to permit same-sex couples to marry would impair the State's interest in promoting and supporting heterosexual marriage as the social institution that it has determined best normalizes, stabilizes, and links the acts of procreation and child rearing."