|Sunday, June 27, 2004
Gays fear new state law banning civil unions could go much further
|Some people say the law could be used to invalidate wills, joint bank accounts, insurance benefits, business agreements and even medical directives.
By Laurence Hammack
Early in their 20 years together, Molly McClintock and Irene Peterson came to realize the rights they didn't have.
The Christiansburg couple closely followed the case of Sharon Kowalski, a Minnesota woman who was left brain-damaged and paralyzed by a car wreck. Even though Kowalski had indicated she wanted to be cared for by her lesbian partner, Karen Thompson, a judge granted guardianship rights to Kowalski's father instead.
Thompson eventually prevailed in 1991, but only after a long court battle that drew national attention. By then, McClintock and Peterson had decided to protect themselves from a similar fate.
The lesbian couple went to a lawyer and obtained a power-of-attorney agreement that gives each the right to oversee the other's medical care.
Now, that written agreement - and the peace of mind it provides - is threatened by a law that takes effect July 1.
The law prohibits "a civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage."
Passed by the General Assembly with broad and bipartisan support, the law has been called both the Affirmation of Marriage Act and an outright attack on Virginia's gays and lesbians.
If nothing else, the law is broadly worded. Just what kind of "contract or other arrangement" it covers is the subject of much debate and, in all likelihood, a future legal challenge.
No one disputes that the law forbids civil unions in Virginia, where gay marriage has been against the law since 1997. But some say the law could also be used to invalidate wills, joint bank accounts, insurance benefits, business agreements and even medical directives such as the one between McClintock and Peterson.
"What our power of attorney does for us is what we cannot achieve through marriage," McClintock said. And that makes it vulnerable under the law, she and Peterson believe.
Although the letter of the law may be murky, critics say its spirit is all too clear.
"I think it sends a message that gay and lesbian people have no right to be treated equally in the state of Virginia," said Dyana Mason, executive director of Equality Virginia, a statewide lobbying, education and support group for gays.
Depending on how it is interpreted by the courts, the law could become the most restrictive of its kind in the nation.
Some gays are planning to move out of the state in protest, and talk of boycotting Virginia tourism and business has reached the West Coast, where two Seattle men have created a "Virginia is for haters" Web site.
In Southwest Virginia, opponents of the law will hold a rally at 6:30 p.m. Wednesday at the Metropolitan Community Church in Southeast Roanoke. McClintock, an Equality Virginia member who is organizing the rally, said at least five other demonstrations will be held at the same time in cities across Virginia.
McClintock believes opposition to the Affirmation of Marriage Act can bring gay citizens and their supporters together in the same way a 2000 shooting at a gay bar unified the Roanoke community.
"I believe in the goodness of people," she said, "and I believe there are enough fair-minded people who will be offended by this."
Threat to marriage?
"Whereas, if 'same sex' unions are a civil right, then legal sanctions and coercion will be imposed against persons and institutions opposed to homosexual behavior or same sex unions."
With that introduction to House Bill 751, Del. Bob Marshall, R-Manassas, stepped into a national controversy with an epicenter in Massachusetts, where the state's highest court allowed gay marriages earlier this year.
Marshall said he introduced his bill prohibiting civil unions, contracts and other marriagelike arrangements between same-sex couples to counter what he calls "a big agenda" by gay rights activists.
Ever since the U.S. Supreme Court struck down a Texas law last year that prohibited consensual sodomy, there has been an attempt to make that ruling a foothold in the campaign to legalize gay marriages, Marshall said.
Recognizing any replica of marriage for gays - be it civil unions or domestic partnerships - would invite "serious ramifications to the social landscape," Marshall said.
His bill cites several examples: Schools would be required to teach that civil unions are equivalent to traditional marriage. Churches opposed to homosexuality would lose their tax-exempt status. Employers who do not provide benefits for same-sex couples would be ineligible for government contracts.
The best protection against such a scenario, Marshall said, is to first define and then forbid any legal partnership between two homosexuals that imitates the institution of marriage.
"Domestic partnership is a proxy for civil union, and civil union is a proxy for gay marriage," Marshall said.
But by outlawing them all in Virginia, and by refusing to recognize such agreements formed in other states, Marshall and other supporters say, the bill defends traditional marriage and nothing more.
"The threat to marriage is very real," said Victoria Cobb, director of legislative affairs for the Family Foundation of Virginia. "Virginia is simply not going to give in to a very vocal minority."
But those with concerns about the law include Gov. Mark Warner.
Warner attempted to amend Marshall's bill in April, saying it could have "a host of unintended consequences."
Business associates of the same gender could be prohibited from forming legal partnerships, regardless of their sexual orientation, he said. Or a joint bank account with a right of survivorship between a mother and daughter could be voided.
Warner rewrote the bill to delete the phrases "partnership contract or other arrangement" and a second passage that dealt with voiding contracts formed in other states. Warner, who opposes gay marriage, said the law would nonetheless create a setback in social advances made since school desegregation and the end of massive resistance.
"I will not support legislation that again takes Virginia so far out of the mainstream in terms of public policy," the governor said.
The General Assembly voted down his proposed change and passed the bill with its original wording.
Marshall discounted complaints that the law will void contracts and partnerships that don't involve marital privileges.
"That is ludicrous," he said. "The only way it has any credibility is the governor mouths these things. He got his advice, I think, from homosexual advocacy lawyers."
They live in brick ranch house on the edge of Christiansburg. One runs a business that teaches blind people how to use computers; the other is a retired industrial safety consultant who volunteers in the community. They have a basset hound named Putter.
In many respects, Molly McClintock and Irene Peterson are like the married couples who live around them.
But to gain some of the rights that heterosexuals automatically achieve by simply saying the words "I do," McClintock and Peterson have had to compile a stack of legal documents.
"We understand that the commonwealth of Virginia has no interest in us having a marriage, but we're just trying to protect ourselves" with the contracts, Peterson said.
Written agreements that cover such things as inheritance, property rights, insurance benefits, child custody and hospital visitation are common in homosexual households, which numbered 13,802 statewide in 2000, according to U.S. census data.
Roanoke, Roanoke County and Montgomery County have the highest numbers of same-sex couples in Southwest Virginia, the census found. Roanoke has 470; Montgomery County has 300; Roanoke County has 284.
As they sat in their living room recently, McClintock and Peterson were asked what they thought motivated Marshall.
"Hate," McClintock said. "I'm sure he's gotten pressure from some right-wing group who thinks he's the perfect little puppet to pass one of these laws."
"I tend to think it's about fear," Peterson said.
"She's nicer than I am," McClintock interjected, smiling.
"It's all about fear of the unknown." Peterson said. "People don't understand domestic partnerships."
Whether motivated by hate, fear or something else, the law in Virginia is seen by many gays as unsympathetic at best and hostile at worst.
The state does not explicitly prohibit discrimination based on sexual orientation, nor does it include it as a factor in its hate crime legislation. And Virginia is the only state in the nation to prohibit state-licensed insurance companies from offering employment benefits to same-sex partners, according to Mason of Equality Virginia.
Employers large enough to underwrite their own polices can offer domestic partner benefits. Others use out-of-state insurance companies and find other ways to provide coverage. One of them is Hollins University, where Michael Sitton is acting vice president of academic affairs.
Sitton and his partner, Mark Martin, are raising Martin's daughter, Trista.
Trista has been accepted to Hollins, and her tuition will be paid for as part of Sitton's benefit package. Just how the Affirmation of Marriage Act would affect such arrangements is unclear.
"All it would take is one person from one school to challenge that, and it could invalidate the whole thing," Martin said.
Even if that never happens, Martin, Sitton and many other gays are offended by the rhetoric from supporters of the act.
For all the talk about how gays are threatening the sanctity of marriage, McClintock is not sure she would even want to be part of such an institution.
With half of all marriages ending in divorce, and with people such as Britney Spears running off to Las Vegas for meaningless ceremonies, McClintock and Peterson are content with the level of commitment they have already.
"For us personally, marriage does not hold much allure," McClintock said.
While some gays in Massachusetts are going to the chapel, others in Virginia are headed to the courthouse.
Equality Virginia, the American Civil Liberties Union and Lambda Legal Defense and Education Fund are already planning to challenge the Affirmation of Marriage Act in a lawsuit they hope to file as soon after July 1 as possible.
"This is a law that is so broad and sweeping, I don't think there will be any shortage of potential plaintiffs," said Daniel Ortiz, a law professor at the University of Virginia.
Earlier this year, Ortiz wrote a letter to Warner urging him to veto the legislation. One of the problems with the law, Ortiz said, is that it does not distinguish between rights exclusive to marriage - being able to file a joint tax return, for example, or not being forced to testify against one's spouse - and other non exclusive rights such as power of attorney agreements or medical directives.
If the law is interpreted to cover only exclusive rights, the harm to gays would be minimal.
Another possible challenge is that the Affirmation of Marriage Act runs afoul of the U.S. Constitution's protection of contracts. And the law could also violate the Constitution's equal protection clause by permitting contracts between a man and a woman while prohibiting the same agreement between people of the same sex, Warner wrote in outlining his concerns.
Until a judge answers those questions, gay couples will be left to wonder how the law might affect them.
Could it be raised by a teller at the bank? A nurse at the hospital? A colleague at work?
"That's the biggest mystery," Peterson said. "What could be used to hurt us?"