The first real break-through case for those arguing in favor of same-sex marriage was Baker v. State, 744 A.2d 864 (1999). There, the Vermont Supreme Court decided that the “common benefits” clause of the Vermont Constitution required the state to offer same sex couples the same “statutory benefits, protections, and security” available to married couples. The court did not require the state to actually grant marriage licenses, however.
The point of interest in this case is the historical analysis of the “common benefits” clause. The court notes that it was not intended to serve the same purpose as the Equal Protection Clause of the Fourteenth Amendment, and thus required a different analysis.
The Common Benefits Clause of the Vermont Constitution provides:
That government is, or ought to be, instituted for the common benefit, protection, 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 a part only of that community.
This provision dates from the original 1777 state constitution and stands as an obvious statement against monarchy and class privilege. From this provision, the court derives a principal of inclusion and that statutory classifications that exclude groups from public benefits ”must be ‘premsied on an appropriate and overriding public interest.’” Id. at 873