Amid worldwide publicity, the commissioners of rural Rhea County, Tennessee, quickly rescinded their call for legislation allowing the county to prosecute gays and lesbians for “crimes against nature”; Commissioner J.C. Fugate had asked the county attorney to find a way to “keep them out of here.” (“Rhea County Commission Rescinds Gay Ban”, The Chattanoogan, Mar. 18; “Tennessee county reverses ban on gays”, Ellen Barry, “County Rescinds Vote to Ban Gay Residents”, L.A. Times, Mar. 18; AP/San Francisco Chronicle, Mar. 19). By contrast, there’s been much less attention paid to a proposed statute nearing enactment in supposedly civilized Virginia which might serve almost as effectively in sending a “don’t live here” message to gays.
The proposal, HB 751 or the “Marriage Affirmation Act” (Rep. Rob Marshall, R-Manassas), was described by the AP (Mar. 10) as a “measure to ban same-sex civil unions performed in other states from being recognized in Virginia”. However, the language of the bill on its face appears designed to do considerably more than that. Here is the full text: “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.”
Tim Hulsey writes (Mar. 16): “No one can quite figure out what this bill means, though everyone agrees it’s incredibly broad in scope. The term ‘civil union’ is nebulous but not altogether undefined. Still, Virginia law already prohibits them. ‘Partnership contracts’ are much less clear: They could (and do) refer to business agreements as well as private legal entanglements. Of course, the real kicker is that last phrase, ‘other arrangement,’ which could be anything at all — private, business, public, legal, extra-legal, whatever. We don’t know how many of the privileges or obligations of marriage a contract, union or ‘other arrangement’ would have to confer to be ‘void and unenforceable’ in Virginia — perhaps as few as one, or as many as a thousand. So since documents like living wills, powers of attorney, or joint ownership agreements confer some of ‘the privileges or obligations of marriage,’ the state of Virginia can nullify any or all of them, just as long as these contracts are made between persons of the same sex.”
To the extent that it undermines the legal reliability of such devices as durable power of attorney and joint ownership arrangements, the bill would indeed appear to constitute, in Hulsey’s words, “a radical assault on individual liberty and contract law.” Yet HB 751 has passed both houses of the Virginia legislature by wide margins and is headed to Gov. Mark Warner for his signature. More criticism of the bill: Equality Virginia, Mar. 11. Plus: Steve Minor at Southwest Virginia Law Blog predicts what comes next (Mar. 20). Update Apr. 18: governor seeks less extreme bill; Apr. 23: legislature rebuffs governor’s objections and enacts bill into law; May 12: critical commentaries; May 31: response to commentary defending law.
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