Following their initial success in Hawaii in 1996 that was later undone by a popular referendum in 1998, advocates for same-sex marriage selected Vermont for their lawsuit on the basis of the state's record of establishing rights for gays and lesbians as well as the difficulty of amending its constitution.
Most of the testimony and statistics that supported the legislation related to the gay and lesbian community and one incident of anti-gay violence helped secure its passage.
[7] On July 22, 1997, three same-sex couples, who had been denied marriage licenses in the towns of Milton and Shelburne and the city of South Burlington, sued those jurisdictions and the state.
On December 19 at the trial court in Chittenden County, Superior Court Judge Linda Levitt granted the defendants' motion, ruling that the marriage statutes could not be construed to allow same-sex marriages and that the statutes were constitutional because they served the public interest by promoting "the link between procreation and child rearing".
They questioned how the state could explicitly allow same-sex partners to parent, but deny them and their adopted children the benefits and security of marriage.
The justices questioned whether the state's position constituted gender discrimination and whether modern science was undermining the idea that only male-female couples could procreate.
"[13] On December 20, 1999, the Vermont Supreme Court ruled that the denial of marriage benefits to same-sex partners was a violation of the state constitution.
In the majority opinion authored by Chief Justice Jeffrey Amestoy and joined by two other judges, the court held that the state must guarantee the same protections and benefits to same-sex couples that it does to male-female spouses, and added that the legislature should, in a "reasonable period of time", find a way to provide same-sex couples with those benefits.
[15] Justices John Dooley and Denise R. Johnson each wrote separate opinions concurring that the exclusion of same-sex couples to the state's marriage rights was unconstitutional, but with different rationales.
The court also noted the state's endorsement of parenting by gays and lesbians in a series of actions, including 1996 legislation promoting same-sex adoption.
She wrote, "I would grant the requested relief and enjoin defendants from denying plaintiffs a marriage license based solely on the sex of the applicants."
In 2000, the Legislature responded to the Baker decision by instituting civil unions for same-sex couples[16] after an acrimonious and deeply polarizing debate.
"[20] New Jersey's highest court ruled unanimously in Lewis v. Harris on October 25, 2006, that excluding same-sex couples from marriage violated the state constitution's guarantee of equal protection.
When the justices determined 4 to 3 that the appropriate remedy should be left to the legislature because "such change must come from the crucible of the democratic process", the New York Times said New Jersey "could be considered the new Vermont".