The Republic of T.

Black. Gay. Father. Vegetarian. Buddhist. Liberal.

Anti-Gay Amendment Still Vexing Virginia

As long as we’re talking about Virginia’s anti-gay marriage law and proposed amendment, it’s worth noting that it appears to be generating more news beyond the recent gay exodus from the state, as the likely passage of the amendment looms on the horizon. Most recently — and probably in a fashion that we’ll see more often as more states either enact civil unions or domestic partnerships, legalize same-sex marriage, or pass laws and amendments prohibiting all of the above — Virginia’s marriage law went up against Vermont’s civil unions in a custody case between former lesbian partners

Basically, one of them decided she wasn’t lesbian anymore and hightailed it to the most homophobic state she could find, with the couple’s daughter in tow. Then she tried to deny her former partner parental visitation rights. Naturally, a Virginia judge backer her. But the Vermont Supreme Court , in a decision that’s interesting in that it focuses less on whether a state recognizes same-sex unions than on how federal law should apply to the situation, essentially said “No so fast, Virginia.

Last week the Vermont Supreme Court sided with Janet [Miller-Jenkins, former partner of Lisa Miller-Jenkins] by ruling, correctly, that the Virginia court shouldn’t have intruded. An appeals court in Virginia has been awaiting the Vermont ruling before issuing its judgment in the case. It should honor the Vermont decision and let Janet finally see her daughter.

This case has gotten tangled up in Vermont’s civil union statute (Lisa and Janet entered a civil union in 2000) and Virginia’s small-minded reaction to it, the Affirmation of Marriage Act, which declares “void in all respects in Virginia” any “civil union, partnership contract or other arrangement entered into by persons of the same sex in another state.” In fact, though, neither the Vermont civil union law nor Virginia’s anti-gay-marriage law is legally relevant.

As the Vermont Supreme Court understood, this dispute isn’t about whether Virginia is bound to honor same-sex unions. (The federal Defense of Marriage Act protects Virginia from that supposedly frightful consequence.) It’s about the application of a federal law designed to help states — and children — avoid the sort of ugly tug of war that has ensnared Isabella here. Once one state’s court has properly started hearing a case, the law provides, other states should stay out. Otherwise, parents who don’t like the custody deal they got the first time could shop around for friendlier courts.

It’s interesting, if only as an indication of various issues in same-sex partnerships may get worked out when states vary in terms of whether they legally recognize those partnerships and afford them any legal rights or protections. I’m no legal expert, but I guess the federal law concerning parental kidnapping applies if both partners are the child’s legal parents, and Vermont’s jurisdiction over the civil union, the dissolution of the union, and the custody decision apparently overrode Virginia’s law regarding recognition of same-sex partnerships.

Beyond court cases, that law is also losing Virginia at least some revenue, and not just in the form of tax–paying gay & lesbian citizens leaving the state. At least one organization, the American Psychological Association, has decided to move its meetings out of Virginia.

The APA announced July 21 that governance meetings scheduled to be held in Virginia in 2007 and 2008 will be moved to Washington, D.C.

“Some of our staff are gay and lesbian,” said Clinton Anderson, staff liaison of the APA’s Lesbian, Gay & Bisexual Concerns office. “They expressed concerns that hospitals and emergency rooms might not honor powers of attorney. People felt unsafe in their lives about meeting in Virginia.”

The APA Committee on Lesbian, Gay & Bisexual Concerns expressed its unease about the marriage act, as well as Virginia’s proposed constitutional ban on gay marriage, saying that the “specific impact of the Virginia law is difficult to know — actual cases will determine its ultimate impact.”

… He insisted the APA’s action does not constitute a boycott of Virginia, but is motivated out of concern for APA members and staff. When asked if the association would go back to holding its meetings in Virginia if the amendment fails this fall, Anderson said he did not know.

“The original law still exists,” he said. “It won’t be overturned or removed. We are unlikely to go back to Virginia until [the Affirmation of Marriage Act] is repealed. Just having the amendment not pass would not change our decision at this point.”

It seems that when it comes to what effect the current law and proposed amendment will have on legal arrangements between same-sex partners, the choices are that you believe the arguments presented by one side or the other that it will have no effect or that it will have a negative effect, or you figure there’s no way to know until either or both are tested; as Anderson put it, “actual cases will determine its ultimate impact.”

The problem is that being gay in Virginia means taking the risk of being one of those test cases, and dealing with the consequences of your relationship and legal documents not being recognized in situations like the illness or death of a partner. And given Virginia’s conservatism and the likelihood of ending up before a conservative judge, those “actual cases” might not fare so well in the state.

Again, why take the risk? Looks like the APA decided there are other places to hold its meetings, where the organization and its gay & lesbian employees won’t have to wonder about all of the above.

Also, this morning’s Blade has a short article suggesting that how Virginian’s feel about the amendment depends on how the question is asked.

A poll conducted by Mason-Dixon Polling & Research found that 56 percent of respondents support the marriage amendment with 38 percent opposed — an indication of strong statewide support for the ban.

The Commonwealth Coalition, a group opposed to the amendment effort, released its own poll that revealed that just 45 percent support the measure, with 40 percent opposed and 14 percent undecided. The group touted the results in a press release, declaring “Amendment ballot support under 50%.”

… The Mason-Dixon Poll was conducted using a sample of 625 registered voters and yielded a majority response in favor of the amendment. Respondents answered a question about the first sentence of the amendment only:

“Shall the Constitution of Virginia be amended to state that only a union between one man and one woman may be a marriage?”

Meanwhile, the Commonwealth Coalition poll showed that a 54 percent majority would vote “no” or were undecided. Those results were based on two telephone polls conducted by Fabrizio, McLaughlin & Associates, and Schapiro Research Group. Each poll surveyed 800 voters, culled from voter registration records statewide.

The Commonwealth Coalition poll tested the exact wording of the Virginia marriage amendment, as it will appear on the November ballot:

“Shall the Constitution of Virginia be amended to state ‘That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. 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’? If the election were held today, would you vote yes in favor of the amendment, no in opposition to the amendment, or are you undecided?”

The article goes on to quote a sociology professor critiquing the methodology of the Commonwealth Coalition poll and suggesting that the length of the statement may confuse participants in a phone survey. Still, it’s an interesting result.

Of course, the only way to know if the amendment will pass (and I’m willing to bet that it will) and what effect it will have is to wait and see. And that’s if, for gay & lesbian Virginians, you think you can afford to take that chance.

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