Twenty states have amended their constitution to ban same-sex marriage since 2004. Virginia state legislators passed a law two years ago that prohibits “civil unions, partnership contracts or other arrangements between persons of the same sex purporting to bestow the privileges or obligations of marriage.” A proposed constitutional amendment, which will go to voters in November, excludes any “unmarried individuals” from “union, partnership or other legal status similar to marriage.”
Many gay people in Virginia and some family-law attorneys say they worry that the state law and proposed amendment are more far-reaching than simple bans on gay marriage — that the measures could threaten the legal viability of the contracts used by gay couples to share ownership of property and businesses.
The exact effects are unclear, and the 2004 law remains untested, but some gays say they fear the laws could affect their ability to own homes together; to draft powers of attorney, adoption papers or wills; or to arrange for hospital visitation or health surrogacy.
Married people get these rights automatically through long-established common law; gay people use legal documents to ensure they can leave their property at death to their partner or allow their partner, rather than the patient’s birth family, to make end-of-life decisions for them. Some gay people worry that hostile family members could use the language in the laws to seize their possessions or take custody of their children if they could prove the couple had a relationship that illegally approximated a marriage.
Can anyone blame them?
Last year, the Washington Post covered Barbara Kinney’s and Tibbey Middleton’s decision to leave their Virginia home after 30 years. They’d experienced before what it’s like to be a couple with no legal rights or recognized relationship to one another, and saw the writing on the wall when Virginia’s amendment passed the legislature.
It wasn’t new to either woman that they weren’t entitled to all kinds of benefits that straight, married couples enjoyed: No leave from work to care for a sick partner. No access to a partner’s Social Security payments when he or she dies. No right to live together in a nursing home.
… Barbara and Tibby never had those rights and never made a fuss about it. Having been raised in what they describe as the patriarchal, deeply conservative climate of Salt Lake City in the 1940s and ’50s, they expected little as women and even less as lesbians. But now there was no room to be silent, to not make a fuss. An aneurysm in Barbara’s brain, first detected in 2001, had changed all that. As the Affirmation of Marriage Act made its way through the Virginia General Assembly, Barbara became gripped day and night by images of herself unconscious, on a respirator, with someone other than Tibby beside her, making decisions for her.
… At this stage of their lives, Barbara and Tibby can’t afford to be a test case. All that matters to them is being able to know, 100 percent for sure, that they will be together until the very end. They already know what it is like to be kept apart. Tibby still reflexively puts her right hand on her heart when she describes being barred from Barbara’s recovery room at Alexandria’s now-closed Circle Terrace Hospital, where Barbara had a hysterectomy in 1984. “Family only,” the nurses said, quoting hospital policy. Then, as now, the law did not entitle Tibby to be with Barbara.
“I could see her being wheeled in there, and it just pulled at my heart, to have her alone in there,” Tibby says. She stalked the waiting room until shifts changed and returned to the nurse’s station with a new identity — Barbara’s sister.
Now the Affirmation of Marriage Act had stripped away their confidence that their medical directives, which left each in charge of health care decisions for the other, would trump Virginia’s refusal to recognize their relationship. How could they stay in a state that was treating them this way?
I asked earlier what rights same sex couples should have, and listed some of the rights and protections that married couples automatically get as well as stories of what happens to same-sex couples who lack those protections or have legal documents that supposedly give them those protections. When I crossposted it on my DailyKos diary, the response was overwhelmingly and expectedly in favor of granting same-sex couples all of the rights afforded married couples. When I posted the first of an intended series of resolves at essembly, that same-sex couples should have the right to hospital visitation and to make medical decisions for one another, a majority agreed or leaned towards agreeing.
None of that surprises me. As pointed out earlier, a recent poll shows a majority of Americans favor civil unions or a legal recognition that gives same-sex couples most of the rights of married couples. And younger Americans, like most of the people on essembly, tend to support marriage equality.
And then there’s Virginia, where the amendment is very likely to be approved by voters, and thus all the across-the-board polling in the world isn’t going to do gay & lesbian families any good as they wonder just to what degree the legal status of their relationships and the legal documents they’ve create to protect their families are endangered. The other side says the intent isn’t to nullify those legal arrangements, but I’m inclined not to believe them.
Victoria Cobb, executive director of the Family Foundation, the Richmond-based group that backed the 2004 law and the proposed constitutional amendment, said the goal isn’t to drive out gay people. She said “extreme homosexual organizations” might be trying to frighten their members by circulating false information about the amendment. She said it wouldn’t add restrictions on gays but would simply underscore the ways their relationships are already restricted.
“I think it’s extremely sad they would leave because of something they were never allowed to do anyway,” said Cobb, who said she believed gays could go to court to defend themselves if a partner’s family members challenged their right to own property in common, arrange powers of attorney or visit each other in the hospital
I’d be interested to see whether Cobb speaks up the first time a same-sex couple does find their legal status challenged after the passage of the amendment. I could be wrong, but I wouldn’t expect her to to take their side in inevitable legal battle, as I find it hard to believe that she and others like her really find it “extremely sad” that gays are starting to leave the state. And it doesn’t matter what Cobb believes the amendment will or won’t do, because the jury is still out on just what the effect of the amendment will be.
No one knows until it’s tested, and as one lawyer interviewed in the article asked “Who wants to be a test case?” Who wants to be a test case if it means risking being barred from your partner’s hospital bed? Who wants to be a test case if it means risking losing everything — a jointly-owned home or business, etc. — to a hostile family after a partner’s death? Because that’s what it’s going to take to test Virginia’s amendment once it’s passed (which seems nearly inevitable, given that it’s Virginia we’re talking about here).
Someone’s going to have to lose the right to make medical decisions for their partner. Someone’s going to have to lose the chance to say goodbye to a dying partner. Someone’s going to have to lose everything they built together with their partner in order to test Virginia’s hate-based amendment. And given those stakes, who can afford to “wait and see”?
All things considered, I’d advise any same-sex couple with the resources to move to get out of Virginia, Georgia and other states like them while you can. It might be tempting to believe that your friends and family wouldn’t allow the worst to happen to you, no matter what the law says, but in reality there might not be anything they can do if the most extreme interpretation of the law stands.
Of course, that’s for those who have the resources to move out of the state and relocate elsewhere. What will happen to those who don’t?