THAT VIRGINIA LAW

NRO - The Corner ^ | 5/18/04 | Ramesh Ponnuru

[swilhelm73]

THAT VIRGINIA LAW [Ramesh Ponnuru]

A while ago, I said I would look into a bill underlying a dispute between Jonah and Andrew Sullivan. The latter said that Virginia had passed a law that made it impossible for gay couples to make certain contractual arrangements. He said that conservatives should denounce the bill, especially since many conservatives had suggested the use of contracts as a substitute for the practical benefits of same-sex marriage.

Here’s the Virginia law in question: “A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement 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 thereby shall be void and unenforceable.”

So let's say two men purchase property jointly and sign a contract stipulating that if one of them dies, the other gets the property to the exclusion of any other heirs. That would be a private contract that mimicked an arrangement that married couples have as a matter of course. On Sullivan’s reading of the law, the contract would be void and unenforceable because it would be “purporting to bestow the privileges or obligations of marriage.” If that's right, such a contract would have to be unenforceable even for two brothers--which is such a weird result that it ought to raise a question about the reasonableness of the interpretation.

The alternative view is that the law is a way for Virginia to block recognition of civil unions from other states without blocking purely private arrangements. The first sentence restates that Virginia does not have civil unions under any name, and the second blocks the courts from importing them from Vermont. Two people of the same sex would be able, then, to reach any contractual arrangements unless Virginia had reserved them to married couples. So, for example, if Virginia had a law saying that only married couples could have joint adoption rights, it would be impossible for same-sex couples to arrange joint adoption in Vermont and have that arrangement recognized in Virginia. Nor could two men enforce an out-of-state “contract” saying, “We two enter a relation that has all the privileges or obligations of marriage,” where enforcement would require the government to grant them something the law reserves to married couples.

If, on the other hand, the law allowed any two people to do something--create durable powers of attorney, living wills, etc.--then the law would not prevent a same-sex couple (or two brothers) from doing the same thing just because they were of the same sex.

The narrower reading seems to me much more plausible. The theory behind this reading is that confronted with the words “the privileges or obligations of marriage,” a court or executive agent should look to the other laws of Virginia to figure out what those privileges or obligations are--and not try to derive some other meaning for them from another source. For the purpose of state law, the privileges and obligations of marriage are whatever state law says they are. The purpose of the law is to prevent any other state’s decision about these matters from overriding those of Virginia.

What are the implications of this reading for what we should think about the law? If you support same-sex civil unions or marriage, you will of course object to the Virginia law. But if you accept its decision in the matter, it seems reasonable also to accept its decision to ensure that other states do not override that decision. And if you oppose civil unions but favor same-sex couples’ having all the rights that any two unmarried people have, then you will support the law.

[steve-b]

If the law meant what the author says it means, it would say "...purporting to bestow privileges or obligations exclusive to marriage...".

Governor Warner was right (for perhaps the one and only time in his career); the legislators screwed the pooch on this one. Relying on the courts to un-screw it is the very sort of "judicial activism" that is normally condemned here.

[agrarianlady]

Check this out:

http://www.wtop.com/index.php?nid=104&sid=207468

New Virginia Law Alarms Gay Activists
Updated: Tuesday, May. 25, 2004 - 1:42 PM

By JUSTIN BERGMAN
Associated Press Writer

RICHMOND, Va. (AP) - Gay activists in Virginia are toying with a new motto for the state: "Virginia is for lovers. Some restrictions apply."

Gays and lesbians are angry and even threatening to leave the state over a new law that will prohibit civil unions and could interfere with contracts between same-sex couples.

Some legal experts call it the most restrictive anti-gay law in the nation.

"I won't buy a home in Virginia. I'm done," said Bo Shuff, a 30-year-old gay rights activist who has rented in the Washington suburb of Arlington for the past two years.