100 Lawyers Join Opposition to Virginia Anti-Gay Amendment
by 365Gay.com Newscenter Staff
September 8, 2006 - 1:00 pm ET
(Richmond, Virginia) A group of 100 lawyers, including two former attorneys general, are calling for the rejection of a proposed amendment to the state constitution that would ban same-sex marriage, civil unions and possibly be used to void domestic partner benefits for both gay and unmarried opposite-sex couples.
The attorneys have signed a statement, released to the media by the group fighting against the proposed amendment, that says they agree with a legal analysis that the measure could be used to terminate all rights of unmarried couples who have entered into contracts on such things as wills and child custody.
The statement also says that the amendment could be used to exclude unmarried couples from the state's domestic violence laws.
The signatories include former state attorneys general Stephen Rosenthal and Tony Troy - both Democrats - and Wyatt Durrette, a lawyer who was the Republican nominee for governor in 1985.
The statement was released by the Commonwealth Coalition, an umbrella group that is leading the campaign against the proposed amendment.
The attorneys are the latest group to announce their opposition to the amendment.
In Norfolk, 17 companies and two business groups with a combined membership of about 750 have announced their opposition to the proposed amendment. The Falls Church Chamber of Commerce has come out against the measure. It is the only chamber to formally oppose it, but no chamber has endorsed the amendment either.
For many business leaders the issue is one of competitiveness amid fears that if the amendment passes it could prevent some companies from doing business in the state. It could also mean talented prospective employees would not work in Virginia.
Religious leaders from a number of Protestant churches and several rabbis also have spoken out against the amendment. Most church leaders, however, support the amendment. Backers of the proposed ban have specifically targeted Black churches.
Gov. Timothy M. Kaine (D) and former US Sen. John Edwards also have voiced their opposition to the amendment.
The most recent poll, taken in July, showed that 56 percent of likely voters said they would vote in favor of amending the state constitution, while 38 percent of voters said they would vote against it. Only six percent of those surveyed remain undecided.
The poll, taken four months before election day, had the lowest support in the same time frame of any state in recent history where a gay marriage referendum was put to voters.
Wednesday, 17 former presidents of the Wisconsin Bar Association announced their opposition to a similar proposed constitutional amendment in that state. (story)
Here is the amendment: Caution it is long and wordy!!!!!!
1. § 20-45.3. Civil unions between persons of same-sex.
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.
HB 751 IS UNCONSTITUTIONAL AND WILL HAVE GRAVE CONSEQUENCES
HB 751 is poorly drafted and is plainly unconstitutional. In addition to civil unions, it expressly seeks to prohibit any "partnership contract or other arrangement between persons of the same-sex purporting to bestow the privileges or obligations of marriage." These words are astonishing both for their breadth and vagueness. While the bill does not define "the privileges or obligations of marriage," a U.S. General Accounting Office report has identified over 1000 benefits of marriage covering matters such as child custody; hospital visitation rights; health, property and life insurance benefits; taxes; inheritance; and property rights. Pursuant to HB 751, any contract or "arrangement" between persons of the same-sex concerning these matters would now be prohibited.
This bill will clearly have hundreds of negative consequences effecting gay and lesbian Virginians and their children. Thousands of children live in Virginia households with at least one gay or lesbian parent. The negative consequences to these Virginia citizens include, but are not limited to:
- Possible loss of insurance. Some employers in Virginia (those that self-insure) offer domestic partner health insurance and other benefits to their employees. To use this benefit an employee must make an "arrangement" for his partner to take advantage of the health insurance. Because married employees enjoy similar such healthcare coverage through their employers, domestic partner benefits could be considered a privilege of marriage, and therefore could be viewed as unlawful under this bill. The harm this bill does is magnified when such invalidated arrangements include the biological or adopted children of an employee’s partner for coverage under a health insurance plan. Inevitably, this would increase the number of Virginians without private health insurance.
- Same-sex couples often make "arrangements" concerning hospital visitation rights and many sign medical directives or medical powers of attorney for each other. These rights are automatically enjoyed by married couples and thus such rights are arguably a "privilege of marriage." These arrangements are therefore prohibited by the bill. Hospitals may even feel constrained to prohibit visitation. Opposite-sex or same-sex friends would have rights prohibited for same-sex couples. The absurdity of trying to determine the nature of the relationship highlights the irredeemable flaws of this law.
- Same-sex couples with children often make "arrangements" for the non-biological parent to have legal authority to make medical and education-related decisions for their minor children. These arrangements are also voided under this law.
The prohibition of any "partnership contract" adds to the negative impact of the bill.
- A person "arranges" in his will that his estate should pass to his same-sex partner and their children upon his death. If the couple were married this would happen automatically by operation of law. Because this can be viewed as a privilege of marriage, those provisions of the will are voided and unenforceable under this law. Again ironically, provisions in favor of anyone else (including presumably pets) could go unchallenged. It is also possible that joint tenancies with right of survivorship in a residence or a bank account, also incidents of marriage, shared by a same-sex couple, are voided under HB 751’s expansive and vague language.
- Same-sex partners often sign mutual contracts that classify previously –acquired property as either joint or separate property, establish how after-acquired property will be classified, and agree on division of property in the event the relationship ends. Sometimes mutual wills are also executed in a contractual agreement.
- Some same-sex partners, as with opposite-sex couples, are also partners in a family business. Clearly, the business would be governed by a contract that now would likely be invalidated by this unconstitutional bill.
HB 751 also has highly undesirable effects on Virginia’s business community.
- Same-sex partners sign contracts with each other concerning plans for co-adoption of children and custody of their children if they separate.
- Those self-insured Virginia businesses that offer domestic partner benefits to their employees may find such benefits are invalid under HB 751—particularly as these benefits are likely to be challenged as no longer valid by anti-gay groups. Such businesses, no longer able to offer domestic partner benefits, may find it difficult to compete in attracting and hiring the best employees, because businesses in other states cab and do offer same-sex couples health insurance benefits.
Because this bill also voids similar arrangements entered into in other states or jurisdictions, the bill will also have a negative impact on gay persons and their children who travel to Virginia for business or recreation from states or countries where they have equal rights:
- Businesses considering moving to Virginia may be deterred from doing so by this new law. This bill goes well beyond the oppression of gays and lesbians found in even the most intolerant of states. It sets Virginia apart as the single worst state for a gay or lesbian person to reside—so much so that many companies may decline to locate their business here for fear of losing their diverse workforces.
- The domestic partner benefits they enjoy in their home state, such as health insurance, may be voided in Virginia.
- Hospitalization or medical decisions in Virginia may not take into account "arrangements" and directives made and enforceable in other states.
Finally, HB 751 is going to place Virginia in a legal quagmire:
- Child custody arrangements from other states could be void here.
I and everyone I know will be voting against this and Sen. Allen.