Last month I posted about the bill just passed in Virginia that would outlaw private contracts between same-sex partners that would “bestow the privileges or obligations of marriage,” a bill that many legal scholars believe would make illegal such standard contracts as wills, powers of attorney and custody agreements between same-sex partners.
IN THE GATHERING debate over gay marriage, some state legislatures have moved to ban it, others to create civil unions or domestic partnerships. Then there’s the Virginia General Assembly, which last month — brushing aside proposed amendments from Gov. Mark R. Warner (D) — passed with veto-proof majorities a jaw-dropping bill that bans not only civil unions but any “partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage.” And it declares “void in all respects” and “unenforceable” in the commonwealth any such arrangement made in another state.
In other words, not only is any public affirmation of gay relationships banned but even private legal arrangements between two people who love each other are prohibited. The bill’s broad language would preclude contracts to share assets or provide for medical powers of attorney, and though its sponsors deny they intend to do so, it would seem to ban even certain contractual business relationships undertaken by people who happen to be of the same gender.
The bill’s only saving grace is that it so flagrantly violates norms of basic fairness and decency that federal courts are likely to balk. The Constitution, after all, declares that “No state shall, without the consent of Congress . . . pass any . . . law impairing the obligation of contracts” — and this bill unambiguously voids existing contracts. The Constitution also guarantees the equal protection of law — a promise that would surely be violated by a statute that forbids gays and lesbians to enter into the same private arrangements that opposite-sex couples are permitted to undertake.
Mr. Warner pointed out these problems in attempting to amend the law. The governor, himself an opponent of gay marriage, pointed out as well that Virginia law already prohibits same-sex marriages and nowhere recognizes civil unions of any kind.
But legislators were less interested in making policy than in sending a message: Gays and lesbians aren’t welcome in Virginia. That message goes into effect July 1; the courts must make certain that it doesn’t stay in effect for long.
That same day, the Post also printed a letter to the editor from attorney Tracy Thorne, vice chair of Equality Virginia, on the same topic and entitled “Virginia Is for (Straight) Lovers,” a play on Virginia’s long-standing tourism slogan “Virginia Is for Lovers.”
With the passage of the Marriage Affirmation Act last month, the General Assembly has called on Virginians to rally at the parapets for another round of massive resistance to social progress. Like segregationists of decades past, legislators have drawn a pink line in the sand relegating gay Virginians to second-class citizenship. This isn’t just a return to one of Virginia’s most sacred institutions — “separate but equal” — this is 21st-century apartheid, Virginia style.
Despite last year’s U.S. Supreme Court decision invalidating sodomy laws, Virginia’s legislature refused to repeal its ban on sodomy. Del. David Albo (R-Fairfax) suggested doing so would lead to an unabated rash of sodomy in the streets. Albo’s cries echo the admonitions of his predecessors, who warned against the integration of schools and interracial marriage.
Although Virginia has been home to some of the most horrific examples of gay-related assaults and murders, the Senate committee considering legislation has refused to include hate-based crimes against gays. Likewise, the General Assembly has prevented local governments and school boards in Arlington and Fairfax from making it illegal to fire someone for being gay or to harass a gay student. Perhaps our legislators should talk with some of the students who have been beaten or spit on for being different before they next consider this issue.
With the Marriage Affirmation Act, legislators enacted far-reaching legislation that Virginia’s legal scholars call “recklessly overbroad.” The name of the act itself is misleading. It does nothing to affirm marriage. Gay marriage has been illegal in the commonwealth since 2000, and civil unions have never been recognized in Virginia. Even so, the act goes further than outlawing civil unions: It prohibits members of the same sex from entering into any “arrangement” that “purport[s] to bestow the privileges or obligations of marriage.”
It is precisely because Virginia does not recognize civil unions that gay Virginians enter into these “arrangements.” They take the form of wills, medical directives and custody agreements, just to name a few. For gay Virginians, contracting for all of these rights was once a difficult and costly process; now it is illegal and impossible.
Despite the painful lessons of the past, the General Assembly has chosen to take the path of ignorance and put the commonwealth on a course of backward thinking. Thomas Jefferson wrote that “laws and institutions must go hand in hand with the progress of the human mind as that becomes more developed [and] enlightened.” Yet Virginia has often led the charge to ignore this advice from its most revered founding father.
Before we pull up the welcome mat for gay Virginians for good, we should consider the costs and consequences of this discrimination. Are we, as a commonwealth, ready to write another chapter in our history of intolerance? Will we accept the simple truth that gays are deserving of fundamental human rights or will we once again rush to the parapets to defend the commonwealth against enlightenment?