The Republic of T.

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Virginia’s Gay Exodus

I’ve blogged about gay people getting out of Virginia before, but it seems what started as a trickle late last year is growing into full fledged exodus as gays leave Virginia in greater numbers, fearing the consequences of a state constitutional amendment that goes far beyond merely banning same sex marriages.

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?

11 Comments

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  2. Victoria Cobb, of the Family Foundation, is likely lying through her teeth. In Michigan when the Prosposal 2 was under consideration every supporter read the talking point that the amendment was not intended to do anything other than keep marriage “sacred” for one man and one woman.

    Not long after the (Republican) Attorney General issued an opinion that DP benefits could no longer be part of contracts at state universities. Exactly as all the opponents of the measure predicted.

  3. Saddens me to no end.. and no, I don’t think anyone can blame them.

    Heck, we are even nervous about visiting my homestate of Virginia as a family.. or individually for that matter.

    Not that anything would happen to us, but if something did… we might be without recourse.

    Sad.

  4. Virginia Cobb’s comment is bizarre.

    From my article on the same subject:

    I can hear some plantation owner in the south voicing a paraphrased version of Cobb’s argument pre-Civil War: “I think it’s extremely sad the slaves would leave the plantation because they were never allowed to be free anyway.”

  5. Actually, I’d be shocked to find that Victoria Cobb isn’t right. The Michigan example by Katana above isn’t apposite. Any state university allowing domestic partner benefits–especially as Michigan seems to offer them only for same sex couples–would at least colorably come within the ambit of the language of Michigan’s DOMA.* But there’s a huge stretch between saying that the state can’t offer something in an employment contract and that Virginia’s law would overturn private contractual behavior between non-state actors.

    I certainly can’t think of–or with minor research, find–a single bit of even partial precedent in caselaw or in statute to support such a fear. (State Attorney Generals are, of course, allowed to issue opinion papers on whatever they like, but those don’t have the binding force of law.) But I’ll bite: what precedent is being relied upon?

    Now, it’s true that private contractual relationships can’t get around everything (such as hospital admissions policies mentioned above). But actually overturning existing private contracts? That’s a bogeyman. Just because there isn’t a test case yet doesn’t mean one can’t make a rational guess as to how the case would come out. I’d be very surprised if any of the lawyers predicting these doom and gloom scenarios would actually put money on the outcome of what you’re calling the “inevitable” trials.

    It’s quite a stretch to go from “gay couples can’t enter into marriage or produce a set of documents that create a marriage-like arrangement” to “any contractual arrangement between two homosexuals that seems to mimic any aspect of marriage is void as a matter of policy.” Any attempt to use a DOMA to overturn private contractual behavior starts to look very dangerous indeed: many straight couples, and indeed non-intimate couples, may choose to make such contracts, and it would be a rare court that would wish to cause that much uncertainty.

    So yeah, this is a bogeyman. Don’t get me wrong, it’s a bogeyman that gets favorable press in national papers. Heck, it’s a bogeyman that makes for great copy on a blog. But if there’s a Virginia lawyer who will hand on heart say that they expect the Virginia Supreme Court to annul (or rather, affirm the annulment of) a benefit plan between a private employer and employee regarding domestic partner benefits, I’m flabbergasted. They’d have to be the type who enjoys taking very long odds in Vegas.

    And if it’s actually causing an “exodus” . . . wow.

    *Incidentally, a quick review of the Michigan Attorney General’s brief regarding same-sex partnerships in the City of Kalamazoo very quickly lends itself to an easy way around the opinion. So long as the “domestic partnership benefits” were available to everyone, whether married or not, who was in a relationship and hadn’t been in another for six months (roughly UofM’s policy), then it no longer “references the attributes of a marriage.” Of course, there’s a good reason for not doing this–expense–but it does get around the definitional problem.

  6. I think we’re actually quite lucky to have 3 jurisdictions relatively close to each other. For us the decision to move to Maryland was an easy one. We rarely venture into VA except when no other options present themselves. As far as I’m concerned the state has made it clear that we’re not welcome.

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  8. Actually, there is precedent within Virginia itself that suggests exactly how broadly Virginia judges would interpret the language of this amendment.

    In a custody case involving a lesbian couple with a civil union entered into in Vermont, a judge overturned the parental rights of one of the women, and ignored the fact that a Vermont court already had issued a ruling and therefore had jurisdiction in the case. The Virginia court ruled that the public policy of Virginia was not to recognize any of the rights flowing from the civil union. In doing so, it flagrantly ignored the federal Uniform Child Custody law that is supposed to prevent exactly what one of these parents did – kidnapping a child and fleeing to another state where they think they will get a better decision.

    The language of the proposed amendment goes much farther than the law cited in this case. Here’s the text of the second paragraph:

    This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

    You can see that this does not specify as a “legal status” any particular aggregation of rights and benefits obtained via private contracts – something that would replicate the provisions of a domestic partnership, for instance. The use of the word “or” opens up to challenge any contractual rights or obligations if there is the “intent” to “approximate” a marriage-like relationship. This language is broader than that of any other so-called “marriage amendment” that has been passed in any other state. It would apply to ALL unmarried couples, gay and straight, and the concerns about it are not a bogeyman.

    You can read the executive summary of a legal memo signed by over 100 lawyers and former Attorneys General here, that outlines the many legal concerns raised by this deliberately broad and ambiguous language.

  9. I’m aware of that case. I mentioned it in another post. You’re right, though. The Virginia court’s decision not to recognize the custody decision of the Vermont court, there the couple’s civil union was entered, doesn’t inspire confidence that same-sex couples won’t be adversely affected by the amdendment if/when it passes.

    And we pretty much stay out of Virginia for just that reason. Why spend our money in a state that’s hostile to families like ours? So far, we haven’t stumbled upon a reason we need to go to Virginia for anything, and Maryland has managed not to be driven down the same path as Virginia. Heck, our Republican (hopefully soon to be former) governer even found he had to at least give the impression that he thought gay couples should have some rights, if he wanted to get re-elected.

  10. VA passed way back in 1975 that “A marriage between person of the same sex is prohibited” The law then was “upgraded” in 1997 that to say:
    “Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable”
    So, the case you were talking about above was actually going by the law. It’s horribly sad and turns my stomach but VA is going to pass this ammendment, no doubt in my mind.

  11. I do not believe this

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