« | Main | An End To Limited War »

May 11, 2004

Virginia Outlaws Civil Unions?

Via The Volokh Conspiracy:

What's wrong with private civil union contracts? Many opponents of same-sex marriage have argued that denying same-sex couples the right to marry doesn't really burden the couples much: After all, the argument goes, the couples can get many of the benefits of marriage through private contracting, and the special benefits that they can't get (tax breaks, mandated employer-provided benefits, and so on) are benefits that the state may properly reserve to those relationships that the state finds most beneficial.
Virginia has enacted the following statute:
"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."
This doesn't just block courts from recognizing out-of-state civil unions, or creating special in-state civil union status. It also bars purely private contracts, if they "purport[] to bestow the privileges or obligations of marriage." The phrase contract or other arrangement . . . purporting to bestow the privileges or obligations of marriage" is pretty vague, but presumably it would include, among other things, contracts to share property that will be acquired in the future, contracts obligating one party to support the other, wills that devise property to the partner, and so on -- all benefits and obligations that some states automatically confer on married couples.

Something that had not occurred to me... interesting.

- Cassandra

May 11, 2004 at 04:45 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Virginia Outlaws Civil Unions?:


I put the over/under on this law at 5 months.


Posted by: Pile On® at May 11, 2004 5:11:40 PM

I put the over/under on this law at 5 months.


Posted by: Pile On® at May 11, 2004 5:12:49 PM

You know, if something's worth saying, I always say, "why not say it twice"?

Posted by: Cassandra at May 11, 2004 5:15:47 PM

Oh, and...segundo...or is it...tercer?

I'm so confused.

Posted by: Cassandra at May 11, 2004 5:16:47 PM

An argument could be made for both. It is confusicating.

Posted by: Pile On® at May 11, 2004 5:23:44 PM

Well...House Bill 751, "The Affirmation of Marriage Act for the Commonwealth of Virginia" was signed by the Governor and becomes law here effective July 1, 2004. As you can imagine, it was hotly debated and damned near never saw the light of day. But I think interpreting this legislation as encompassing the broad range of private contracts as Volokh did is probably a tad overwrought.
Virginia is one of the most conservative states, if not THE most conservative state, in which I have ever lived. By that I don't just mean politically conservative, I mean that the laws of the Commonwealth and the courts that interpret them are so steeped in tradition that they often appear arcane. Rule One in statutory interpretation is the presumption that the General Assembly is all knowing and always correct, and Virginia judges will bend themselves into pretzels to avoid breaking Rule One.
One of the first things you notice when studying Virginia law is that contracts between individuals are nearly sacrosanct. Virginia judges, bolstered by a couple of hundred years of precedent, take the view that two parties to a contract are held to the terms of their deal unless, and only unless, there was no contract to begin with, or the subject of the contract was illegal. Good luck trying to get out of a deal because of "duress" unless a loaded gun was actually pointed at your head with the hammer back. Just recently, an illiterate couple was held to an arbitration clause in a consumer contract because, even though they couldn't read the typed pages, they initialed the paper and thereby agreed to its terms. Caveat emptor.
What does all that have to do with civil unions? I think that when the law is finally applied (and you knowwhen it is it will be by one member of the union trying to weasel out of his or her contractual obligation to his or her former union partner) the Virginia courts will look to the subject of the contract and frame its decision in the narrowest of contexts. A promise of life-long support is not marriage any more than a promise of life-long snoring. While both may be concomitant with a state-sanctioned marriage, neither is defining of that social status. Unless the contract specifically spells out that the consideration given in return for life-long support is nothing more than a promise to have and to hold in sickness and in health, I don’t think Virginia judges will move beyond the four corners of the document. Here’s what is says. You agreed to it. Get out of my court room.
Anybody want to be the test case? I smell a pro bono opportunity knocking.

Posted by: spd rdr at May 11, 2004 6:18:59 PM

Well that's why I didn't comment mr. rdr. I was awaiting your erudite commentary. I wondered why he was interpreting it so broadly, but thought I must be missing something obvious, not being of the legal persuasion myself.

And to think when I was a young 'un I was actually planning to read for the bar in Virginia - what the heck was I thinking? It sounds like South Carolina - an Old Testament state.

Probably anything to avoid law school...

Posted by: Cassandra at May 11, 2004 6:30:45 PM

It looks like Volokh may have been relying on the WaPost's Editorial interpretation. They came right out and stated that the bill would outlaw even commonplace contracts between same-sex couples. The editorial was pretty heated - it's linked to my name.

The bill's only saving grace is that it so flagrantly violates norms of basic fairness and decency that federal courts are likely to balk. The Constitution, after all, declares that "No state shall, without the consent of Congress . . . pass any . . . law impairing the obligation of contracts" -- and this bill unambiguously voids existing contracts. The Constitution also guarantees the equal protection of law -- a promise that would surely be violated by a statute that forbids gays and lesbians to enter into the same private arrangements that opposite-sex couples are permitted to undertake.

But legislators were less interested in making policy than in sending a message: Gays and lesbians aren't welcome in Virginia. That message goes into effect July 1; the courts must make certain that it doesn't stay in effect for long.

I missed the link when I posted the first time - I was multi-tasking again.

Posted by: Cassandra at May 11, 2004 6:41:06 PM

Help me out here counselor, isn't it quite likely that the ACLU or some other activist group will challenge this and it will end up in federal court?

Posted by: Pile On® at May 11, 2004 6:45:48 PM

Not having read the bill, I probably should have added...not that I necessarily trust the WaPo. Keep in mind that I canc'd my subscription last time I lived in DC :)

Posted by: Cassandra at May 11, 2004 6:53:41 PM

My family is starving. I've got to go get Chinese food immediately. I promise to return with a completely Dogbertian analysis sometime tonight. Magic 8-Ball warming up t the task as we speak. Reply hazy.

Posted by: spd rdr at May 11, 2004 7:35:56 PM

Well I'm already trashed and I'm going out, so I await (dang, it took me 3 tries to type that word) your Dilbertian analysis with extreme interest...

We did Chinese the night before last. The poor Unit hasn't had home cooking for a whole week with this darn project hanging fire - he cooked me dinner last nite. He is turning into quite the man-about-the-house - it's kind of freaky after 25 years of waiting on him hand and foot. I may need to cultivate this....

I haven't had that much Chardonnay, so it must be the meds. Oh well.

Posted by: Cassandra at May 11, 2004 8:02:32 PM

Does your wife work spd? It sure is weird when you've been a homemaker for so many years. Now I make 2/3s what he does.

It's kind of weird. It sure shifts the power curve. Not altogether in a good way in my opinion.

Posted by: Cassandra at May 11, 2004 8:06:33 PM

Belay that last question: it wasn't a loaded question. More a philosophical musing from someone who has worked too many overtime hours for the past 4 or 5 weeks :)

Feel free to treat it as a rhetorical question unless you have some urge to climb on the soapbox. There was no agenda there.

Posted by: Cassandra at May 11, 2004 8:53:18 PM

No, Cass "The Rose" does not sully her hands beyond Castle rdr. The world is decidedly worse off, but let no man deny her the accolades due the Mother of All Redheads. Pain and short living are the only certain result.

Posted by: spd rdr at May 11, 2004 9:19:47 PM

I don't have spd rdr's experience with Virginia law, so I won't go there.

But I think I recall thinking (clear enough for you) that Volokh's site is generally in favor of civil unions for same sex couples. That said, when one wishes to oppose a piece of legislation, a common tactic is to show that the legislation has unintended and extreme consequences. You know, the sky is falling, slippery slope stuff I complain about often (see, eg, the sodomy decision debates here and on that other site we go to sometimes). The common law has always allowed for joint ownership of property with right of survivorship. This can exist in a marriage, or without one. Saying all rights/obligations that CAN exist is marriage would be outlawed by this legislation seems to me, kindly, to be hyperbole.

I don't think the contracts clause challenge has much weight either, except perhaps as to existing contracts before the law went into effect. New contracts are almost always subject to the law of the forum at the time of the contract - nearly every economic regulation is an interference with free contract rights. A contract entered into prior to the law's effective date might be a different question.

As for the full faith and credit clause (FFCC), I think this statute was approved by the Defense of Marriage Act passed several years ago in Congress, and the FFCC says that full faith and credit is to be given "as Congress may proscribe" or words to that effect. So if Congress says states don't have to give full faith and credit on a subject, they don't.

Posted by: KJ at May 11, 2004 9:30:47 PM

I think that's wonderful. Really. :)

Posted by: Daffy Duck at May 11, 2004 9:30:58 PM

oh-gosh-I-have-to-go-but-KJ's-right-he-favors-gay-marriage-whatever-that-means-ohmygosh :)

Oh KJ we've been down this road and I'm too premedicated to spar, but maybe later.

The question with DMA is will the courts strike it down? I agree it's there, but if it gets struck down it won't be much use, will it?

Posted by: Cassandra at May 11, 2004 9:39:04 PM

Back when I used to earn money, we were both IT consultants, working 60-80 hour weeks. One month I made more than MathMan. He called his parents and siblings and said "We have a red-letter day - she made more than me!" He was thrilled.

See why I stay married?

Posted by: MathMom at May 11, 2004 9:55:20 PM

Another solid analyis given by KJ (while my mouth was full, mind you). I've been roped into a high school project (due tomorrow,of course). Please forgive my absence from the blog.
Carry on.

Posted by: spd rdr at May 11, 2004 10:01:43 PM

KJ, I still am not sure if you think the law will be struck down, and I don't have time to analyze your post right now. There is a big soccer game on Telemundo, and the announcers are sayin' it should be a close game.

Posted by: Pile On® at May 11, 2004 10:08:04 PM

OT - I was listening to some talk radio blatherer not long ago on the subject of gay marriage vs civil unions. A lesbian called in to say that with a lawyer, you can make sure that property passes from you to your partner as you wish, in fact you can create all the legal benefits of marriage through binding contracts. She was opposed to calling it "marriage", as she felt that was a word reserved for heterosexual unions. I found her point of view interesting.

I have had enough gay friends, including a very dear one who died from AIDS, to figure that God don't make no junk. I know the old testament considers homosexuality a abomination, but it also promotes slavery, so I feel there is a little wiggle room there.

I think there should be a way for homosexuals to have committed legal relationships with right of survivorship and all that. I don't think it should be called marriage, though. They should think up their own special word.

Posted by: MathMom at May 11, 2004 10:09:30 PM

How about a union? I am confused here between a marriage benefit versus a will.

Now, unless I miss my guess, aren't there laws on the books in all states that permit whomever to leave whatever to whomever they please?

Posted by: Cricket who is very very tired at May 12, 2004 1:41:38 AM

Cricket: there are also laws in some states that prevent you from disinheriting certain relations - I think that's the issue. For instance, in many states one cannot legally disinherit one's spouse. So the distinction of being married becomes very important, especially when you have a contentious family who are inclined to contest a will.

Wills are somewhat chancy instruments.

Posted by: Cassandra at May 12, 2004 7:53:38 AM

Most states have what is called "dowry" or something similar which allows a spouse to claim a certain statutory percentage of the estate in lieu of what was left in the will, if the spouse chooses. Otherwise, you can disinherite everyone else. Of course, if you are married, you aren't going to leave something to a gay civil union partner. OTOH, the gay partner might get "done wrong" if the partner leaves everything to Oprah and Dr. Phil instead of the partner, and there is no right to attack that will.

But OTOOH (I hope you brought your extra hand), most states recognize "will contracts." EG, you agree (I would put it in writing) you forego work or you offer support (financial or other) to someone, and as consideration that other person agrees to leave you something in his will when he dies. It could be a percentage of the estate, certain property or everything. The point is, there are non-married ways to protect yourself, but like pre-nups, raising the issue can be hard when you are in a relationship with implied trust.

Posted by: KJ at May 12, 2004 10:09:08 AM