Ramesh Ponnuru of National Review Online (“The Corner”, May 18) has written in defense of the new Virginia statute, much criticized in this space, which declares null and void within the state not only civil unions but also any “partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage” (Mar. 19, Apr. 18, Apr. 23, May 12). As I noted two weeks ago, given the unclarity of the law’s drafting, a prolonged guessing game about its meaning may be inevitable; but some guesses are more plausible than others.
According to Ponnuru, the law’s most plausible reading is a very narrow one under which it would not result in “blocking purely private arrangements” at all and same-sex couples would continue to be secure in availing themselves of a wide range of legal devices such as durable power of attorney, living wills, and so forth, of any sort that could be entered into by two brothers or business partners. (Assuming, that is, that they did it by signing documents in a lawyer’s office. If they imagined they could skip those rounds of paperwork because their home was in Vermont and they had a civil union, they might be in for a very rude surprise after their I-95 accident when Virginia treated them as legal strangers for purposes of hospital visitation and the like.)
So if the law isn’t really meant to affect private agreements, what is the language purporting to invalidate “partnership contract[s] or other arrangement[s]” doing in there? When controversy first arose, some of the law’s backers said their goal was to prohibit recognition of some future equivalent of civil unions which might travel under a different name. Had this been their objective, one would have expected the law to employ language that captured the salient legal features of civil unions as opposed to strictly private arrangements — for example, that they are solemnized with a license or other public formalization. Given that no such distinction appears in the law’s text, it has been widely assumed that the law is meant to reach at least some private contractual arrangements between same-sex couples.
So, again: which private arrangements are void? Ponnuru’s answer is agreeably circular: he thinks the law will ban only those arrangements which purport to convey incidents of marriage which cannot be conveyed by contract. In other words, it will ban only those arrangements that are already void. We can all hope he’s right, without wishing to bet our own legal affairs on the outcome. But other interpretations will be urged on Virginia courts, sheriffs, and state agencies as well. For example, some persons with interests adverse to the couple (relatives pursuing will disputes, for example) may urge an “intent to evade” standard: even if one or another contractual device might count as innocent taken singly, they will say, in the aggregate the dealings add up to an attempt to “bestow the privileges or obligations of marriage” on a relationship disfavored by the state of Virginia, just as a series of otherwise lawful financial steps when combined with ill intent may amount to money laundering.
It’s not as if the Old Dominion has a track record of upholding free contract when it collides with anti-gay sentiment, after all. As the AP reported the other day, “Virginia is the only state where companies not large enough to underwrite their own insurance policies are prohibited from offering domestic partner benefits.” (“New Virginia law causes some gays to consider leaving state”, AP/San Francisco Chronicle, May 22). It is perhaps needless to add that Virginia’s powerful religious-right lobby has vocally supported that prohibition. (Update Mar. 20, 2005: legislature votes to repeal law).
A curious postscript concerns the recently reported views of the bill’s sponsor in the Virginia legislature, Del. Robert Marshall (R-Prince William). Marshall (whose private views, of course, do not determine how courts will rule in interpreting the law) disagrees with the idea that durable power of attorney, medical directives or wills might come into question, but “said the Virginia law is intended to ban child custody and guardianship agreements between same-sex partners”. (Christina Nuckols, “New law may void same-sex benefits”, Norfolk Virginian-Pilot, May 22; see also SW Virginia Law Blog criticism of that and other press coverage, May 22, first/second posts; Justin Bergman, “South Wire: What does Virginia’s new anti-gay law actually do?”, AP/Newport News Daily Press, May 30). The mention of guardianships is interesting since the designation of guardians has long been untethered to the “privileges or obligations of marriage” — parents can and routinely do select sisters, cousins and completely unrelated friends of the family to step in as guardians for their children in the event of their demise. It appears that Marshall — contra Ponnuru’s thesis — hopes the law will empower courts to undo private legal arrangements which are routinely upheld as valid when carried on between other unrelated persons on the grounds that they arise from a same-sex relationship. It might also be noted that the invalidation of such guardianships would have peculiarly harsh consequences in practice: children who had lived uneventfully for years with the surviving female partner of their deceased mother in New Jersey or California might be subject to being seized and handed over to the Virginia social service/foster care bureaucracy because the family was so ill advised as to attempt a vacation trip to Williamsburg or Mount Vernon. More: Tim Hulsey comments.