Virginia Gov. Mark Warner amended a civil unions bill to allow private contracts,
but the General Assembly rejected the change by a veto-proof margin. (Photo by
Steve Helber/AP)
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ADRIAN BRUNE
Friday, May 07, 2004
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.
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.”
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 passed Ohio marriage amendment, which
many believed to be the broadest and most restrictive marriage law in the country,
allows private contracts between persons of the same sex.
Equality Virginia, and other gay groups, said Warner walked a fine law in amending
the bill, not wanting to do anything to actively hurt gay families, but also
not wanting to damage future political aspirations.
“He seems to be trying to connect all the dots, especially by invoking
that discriminatory laws are bad for business,” Evans said. “It’s
a neutral way for people to start thinking of what laws like these do for people
who have choices about where to put their businesses in a competitive market.”
According to Ellen Qualls, the governor’s spokesperson, Warner believed
his amendments keeping civil unions in place only reinforced the status quo
in Virginia, since Virginia courts were unlikely to recognize civil unions
from other states anyway, given the state’s DOMA law.
Lombardo agreed, saying that without the contractual provisions, Marshall’s
bill would have been “redundant.”
With the legislative session effectively over for the year, the question over
the legality of the Marriage Affirmation Act will now go to the courts. Equality
Virginia, located next door to the Virginia chapter of the American Civil Liberties
Union, is expected to announce a lawsuit by early summer.
“We were all between a rock and a hard place on this bill and Warner
tried to make a really bad bill, less bad,” Evans said. “Hopefully
we will get this thing stopped before it really does harm.”
The Virginia DOMA law and Marriage Affirmation Act might also be challenged
under the U.S. Constitution’s “full faith and credit law,” which
generally requires states to recognize legal documents like marriage licenses
issued by other states.
Adrian Brune can be reached at abrune@washblade.com.
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