VA Marriage Equality Ban Impacts Right to Contract

August 20, 2004

Concerns are being raised that a new Virginia law affirming the state's prohibition against same-sex marriage could have widespread impact on contract law in the state.

Virginia's Affirmation of Marriage Act, which became effective on July 1, reinforces the state's seven-year-old ban on same-sex marriage. But the measure also voids any civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage.

Critics are alarmed by the potential ramifications of that language. They say it is so vague as to make the actual reach of the legislation uncertain. It is possible, they suggest, that the law could be interpreted to nullify a variety of contracts used by same-sex couples to create rights and benefits that otherwise would be denied to them because they aren't married. Such agreements may include parenting and custody arrangements and advance medical directives.

Some worry that the law could undermine contracts between unmarried people of the same sex that govern both personal and business arrangements, such as real estate holdings, prenuptial agreements and business partnerships.

It is not language that is well-defined by Virginia law, and there is no good analogue to compare it [to], says Greg Nevins, senior staff attorney in the Atlanta office of Lambda Legal, a legal advocacy group for the gay community.

Obviously, the people who supported it emphasized its narrow reach, Nevins says. Since it is ambiguous, the hope is that a court would say it would not reach out to contracts that people are concerned about. But at this point, it is not clear, and you can understand the great fear and nervousness running through people who have tried to protect their families the best way they can through contracts. Now they are unsure as to the legal status of the contracts.

Supporters of the law say there is no basis for those interpretations of the Affirmation of Marriage Act.

There is a complete exaggeration of the impact of the law, says Victoria Cobb, director of legislative affairs for the Richmond-based Family Foundation of Virginia. It will in no way impact contracts that any two people can enter into in Virginia.

The Family Foundation was not involved in the legislation, Cobb notes, but says it supports bans on same-sex marriages and civil unions.

Virginia Attorney General Jerry Kilgore has said in statements that the law will not be used to void contracts such as business partnership agreements, medical directives, joint bank accounts or similar agreements.

The Virginia legislation is the most recent salvo in the widening skirmish over whether to extend some legal recognition to same-sex couples. Earlier this year, Massachusetts became the first state to recognize same-sex marriage. A handful of other states, including Vermont, California and New Jersey, recognize civil unions or domestic partnerships that extend at least some of the legal benefits of marriage to same-sex couples.

Mark Agrast of the Center for American Progress in Washington, D.C., calls the Virginia law a warning shot. The center describes itself as a research institute that supports progressive ideas.

You cannot describe a single enactment as a trend, he says. If it is repudiated either in court or through the legislature, then any trend will be short-lived. But it is an indication of the extreme measure of some of the anti-gay feeling that he says exists in American society.

According to the Washington, D.C.-based Human Rights Campaign, constitutional amendments are pending in 16 states that would prohibit same-sex marriage. Some of those proposals also would ban any other form of legal recognition for same-sex couples.

In Virginia, several groups have promised to challenge the new state law, but it may not happen right away. There is no question that there will be a court challenge, says Lambda's Greg Nevins. We just do not know what form it will take.