Jul 16, 2004  |  By: ADRIAN BRUNE  | COMMENTS     

Less than a month after the enactment of the Marriage Affirmation Act, a Virginia law that prohibits recognition of civil unions or other marriage-like contracts between same-sex partners, the ACLU of Virginia has announced it will file a lawsuit challenging the measure.

But lawyers for the civil liberties group this week declined to reveal any details related to the suit, including the court in which it will be filed.

Some couples have already volunteered to participate in the suit, but representatives from the ACLU and allied groups are still combing the state for prospective plaintiffs in a quest to put the act’s constitutionality to the test, officials said.

“The more information we have, the better,” said Kent Willis, the executive director of the ACLU of Virginia. “Once we have a clear picture of who is being directly affected by the law, we will be able to make decisions about our actual approach.

“We probably can’t do this preemptively, that’s the problem. We don’t have to wait until someone voids a contract, but we should wait until some third party, like a doctor, refuses to implement a contract because of this law.”

Opponents assert the Marriage Affirmation Act could be used to void an array of contracts same-sex couples currently use to protect their rights, including medical care directives, wills, child care arrangements and joint ownership of property — all of which are legal arrangements the ACLU says fall under the rights provided by the U.S. Constitution.

The Virginia House of Delegates passed the measure by a veto-proof two-thirds majority last spring, and it became law July 1 without a signature from Gov. Mark Warner. The governor, a Democrat, favored the measure’s ban on recognition of civil unions but opposed the extra restriction on contracts.

Officials at Equality Virginia, a statewide gay rights group and party to the ACLU’s legal action, informed the governor’s office of the planned lawsuit last week and the possibility, though remote at this point, of Warner being named as a defendant for his role as the state’s chief executive.

Virginia Attorney General Jerry Kilgore said in a statement he is prepared to defend the law, asserting that it “provides a needed safeguard for the institution of marriage while not depriving any individual rights currently available to all citizens.”

Kilgore defends law
Kilgore also disputed an allegation from the advocacy groups that the language of the law could nullify contracts between heterosexual couples or business partners.

“The purpose of this legislation is not to prohibit business partnership agreements, medical directives, joint bank accounts, or any other rights or privileges not exclusive to the institution of marriage,” he said.

As it stands, the ACLU dispute could take on a variety of formats and work its way through the courts in several separate proceedings, depending on the number of state or private agencies already enforcing the law, according to Joseph Price, an attorney and Equality Virginia board member advising on the complaint.

Price said the gay rights groups, which include the New York-based Lambda Legal Defense & Education Fund, have identified two couples they say face legal harm from both a state and a private entity. But Lambda and the ACLU must first confirm that the two entities will enforce the law before moving forward, he noted.

Neither Price nor the ACLU would provide details about the couples’ circumstances and would only comment on general possibilities when asked about strategies for filing the lawsuit. They said the suit could target one particular state agency and include several couples; it could be a multi-pronged strategy, simultaneously blanketing the courts with a series of lawsuits against several institutions; or it could be filed in federal court or a Richmond circuit court depending on location and the efficacy of applicable laws.

“If the University of Virginia, for example, now said it would not provide graduate housing for same-sex couples because this new law doesn’t require it, we wouldn’t sue the state Department of Education. We would directly sue the university and President John J. Casteen,” Price said. “The law took effect July 1, and on July 12, I can sit here and tell you this type of broad implication from the law is already being felt.”

The organizations at one time considered asking for a declaratory judgment, in which a judge would provide an interpretative ruling on the law without an official complaint, but decided against it, thinking the strategy less authoritative, Price said.

“One of the two cases we have before us is very clear. The other [is] ...