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Great New Books on Organizing:

by David Jarman

I consider myself a person of goodwill towards homosexuals, one who prides himself on thinking for himself, and one who cares about his fellow citizens. Like a large portion of the public I’m a little confused about the current debate nationally about gay marriage and its marriage-lite alternatives of civil unions and domestic partnerships. I’m happy about the defeat in the U.S. Senate of the Federal Marriage Amendment, as much for my belief in the sanctity of the Constitution as for my sympathy with the cause of equality for gays. However, I am appalled by the brutality of Virginia’s recently passed Affirmation of Marriage Act.

Up until July 1 of this year, Virginia was one of 38 states that had passed Defense of Marriage Acts. Passed in 1997 in Virginia, the Defense of Marriage Act clearly states that a marriage between persons of the same sex is prohibited, and any same sex marriages performed in other states or jurisdictions are void and unenforceable in Virginia. Civil unions are legal in Vermont, and domestic partnership laws have passed in California, Hawaii and New Jersey.

In April of this year, Virginia passed an additional law, the Affirmation of Marriage Act, extending its ban to civil unions, partnership contracts and “other arrangements between persons of the same sex purporting to bestow the privileges or obligations of marriage.” It also adds that any such union, contract or arrangement entered into in any other state “and any contractual rights created thereby” are “void and unenforceable in Virginia.” The bill’s sponsor, Del. Robert Marshall, R-Prince William, said the law is aimed at preventing same-sex couples from acquiring the benefits of marriage through other means. Attorney General Jerry Kilgore echoed this view, saying he believed the law was constitutionally defendable. The law took effect on July 1.

Jonathan Rauch, a writer in residence at the Brookings Institution and author of Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America, in an essay dated June 13, stated: “On July 1 Virginia takes a big step backward, into the shadow of Jim Crow.” He notes that when gay marriage came up in the 1990’s, Virginia was among the first states to preemptively ban it. Now, Virginia becomes the only state to forbid even private companies, unless self-insured, from extending health insurance benefits to unmarried couples. And, it impinges on the power of third parties (corporations and government) to recognize gay couples. And, it appears to abridge gay individuals’ right to enter into private contracts with each other. This would interfere with wills, medical directives, powers of attorney, child custody, and even joint bank accounts.

Henry Fradella, a law professor at the College of New Jersey who tracks gay-rights issues, said: “Nothing so homophobic has ever been enacted into law in this nation’s history. For the Virginia legislature to go as far as they did, knowing that this is probably unconstitutional, to me it is a political statement. I have not seen anything quite so radical.” The Washington Post called the bill “jaw-dropping”. Gay rights groups termed it discriminatory.

Mr. Rauch goes on to say that “to abridge the right of contract for same-sex partners, then, is to deny not just gay coupledom, in the law’s eyes, but gay personhood. It disenfranchises gay people as individuals. Americans have a name for the use of law in this fashion, and that name is Jim Crow.”

Nationwide, conservatives distinguish between denying marriage to gay couples and denying civil rights to gay individuals. If Virginia’s Affirmation of Marriage Act and its attack on basic legal equality does not offend and embarrass these conservatives, what anti-gay measure possibly could? It is incumbent upon the Virginia Assembly to revoke this amendment before it is ruled unconstitutional by the Supreme Court.

Jarman is a James City County resident and member of the Virginia Organizing Project. David can be reached at (757) 565-5161.