May 07, 2004  |  By: ADRIAN BRUNE  | COMMENTS     

RICHMOND, Va. — By adding the words “civil union” to its Defense of Marriage Act, Virginia joined the ranks of two other states officially and specifically banning the legal alternative to same-sex marriage.

But additional language in the Virginia legislation far surpassed even Texas and Nebraska — as well as the other 47 states — in the limitations it placed on legal recognition of same-sex couples, according to national advocacy groups.

The Marriage Affirmation Act, passed by the Virginia General Assembly late last month and set to become law in July, outlaws “any partnership contract or other arrangements that purport to provide the benefits of marriage,” in addition to prohibiting the state from recognizing civil unions.

Both gay rights advocates and independent legal scholars agreed the nation’s now most strongly worded anti-marriage statute could have considerable impact on the ability of same-sex couples to enter into legal agreements with each other.

“So much of this language was clearly not thought out in the way it could affect people,” said Carrie Evans, an attorney with the Human Rights Campaign. “The law won’t nullify contacts already drawn, or prevent people from entering into contracts, but it comes into play if two parties must go before a judge to have that contract enforced.”

Virginia Gov. Mark Warner (D), a graduate of Harvard Law School, was well aware of its legal implications, according to his staff, and on April 16 amended the affirmation act, introduced by conservative Del. Robert Marshall, to remove all the provisions dealing with partnership contracts. However, he kept sections of the measure that would restrict the recognition of civil unions from other jurisdictions — a measure Virginia gay groups accepted, though not happily.

No custodial agreements, medical directives
In a special, one-day session called to address those changes, among others Warner made to a total of 53 bills, lawmakers ignored the governor’s directive and passed the original version with a two-thirds, veto-proof majority in both the House and Senate.

The new law will abolish the rights of same-sex couples to execute a will, sign medical directives or craft custodial agreements, according to Dyana Mason of Equality Virginia.

But while acknowledging the damage to legal recognition for gay couples, Robert Lombardo, a professor of bioethics and law at the University of Virginia, said the law violates the “contract clause” in the U.S. Constitution, and would probably not withstand any legal test outside of its civil union ban.

Lombardo also argued that the law’s reach might be limited by other legislation more specific to the types of contracts gay couples might enter into.

“The usual rule judges follow in these instances is that laws with specific language usually overcome laws with more general language,” Lombardo said. “For example, the state’s advance medical directive says you can designate anyone you want to make medical decisions on your behalf, regardless of your relationship. That would clearly outweigh a law prohibiting a general contract between persons of the same-sex as long as it doesn’t specifically mirror a civil union.

“I wouldn’t want to predict how people would try to use this law. At least on its face, while it’s not good news, it doesn’t have the reach that it might.”

Joining C.U. ban
Before now, Nebraska and Texas were the only two states that have explicit language in their marriage codes referring to civil unions.

However, four additional states — Alaska, Florida, Ohio and West Virginia — use language in their DOMA laws that could be construed to mean civil unions or other legal relationships between same-sex couples, according to briefing documents used by Warner and obtained by the Washington Blade.

The Nebraska marriage statute, providing that the “uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized,” was ratified by voters in 2000 and became part of the state constitution. Many legal scholars and litigation groups unsuccessfully cited constitutional concerns during debate over the measure and eventually challenged the amendment in federal court. That challenge is still pending.

Last year, Texas enacted a law stating that a marriage between persons of the same sex or a civil union runs counter to its public policy and is void. So far, the law remains unchallenged.

Out of the 39 states that have passed laws or constitutional amendments banning marriage between same-sex couples and recognition of these marriages from other jurisdictions, none before now expressly prohibited private contracts between same-sex couples. In fact, the recently ...