Mission Impossible: On Baker, Equal Benefits, and the Imposition of Stigma

In Baker v. State, the Vermont Supreme Court held that the state constitution required same-sex couples be afforded the same benefits and protections that married couples receive. While the state did not need to recognize same-sex marriage, at the very least, it needed to create a parallel system providing equal benefits. Professor Mark Strasser argues that a civil union alternative ultimately would not meet the court's requirements because it cannot possibly provide this requisite equality. His central concern is the differing treatment that same-sex marriage and domestic partnerships receive from other states.

Additionally, Professor Strasser notes that such a system would fail to meet the requirement of equality due to the stigma attaching to civil union status. He concludes that such a parallel system would have all the legitimacy of "separate but equal."