The Fine Print

Virginia's latest move against gay and lesbian relationships

Tuesday was a good day, as battles against anti-gay constitutional amendments go.

That was the day the Washington Post released its latest polling on the proposed amendment to the Virginia Constitution that would not only enshrine a ban on same-sex marriage, but would likely preclude any legal recognition of any sort for any relationship not involving two legally married, opposite-sex heterosexuals. According to the Post, 53 percent of Virginians supported the amendment, while 43 percent opposed it.

”I am a really happy woman,” says Claire Guthrie-Gastanaga with a laugh. Gastanaga is the campaign manager for the Commonwealth Coalition, which has headed up the statewide effort to defeat the amendment.

It may seem a bit counterintuitive — 53 percent is a winning number for the amendment, after all. But, as the gay and lesbian community has learned from hard experience over the past few election cycles, a close race leading into election day is a sort of victory all its own. In previous efforts in other states, constitutional amendments to block marriage equality for gays and lesbians have passed in landslides.

Virginia, despite its recent election of Democratic Gov. Tim Kaine, was not expected to be a competitive state for a so-called marriage amendment. But as the campaign has progressed, the Commonwealth Coalition has found increasing support for its position. That trend, combined with a margin of error of plus or minus 3 percentage points, makes the race much closer than it was a few short months ago.

”That statistical dead heat is just amazing,” says Gastanaga. ”It’s very strong. The timelines over the last year have been converging — the ‘yeses’ have consistently been going down and the ‘nos’ have been going up.”

Gastanaga and the Commonwealth Coalition believe that the support for the amendment will dwindle as Virginian voters read the whole proposal. The first part of the amendment, which will appear on the Nov. 7 ballot, is fairly standard language as these types of amendments go: ”That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.”

While the first part of the amendment is bad enough from a gay perspective, it’s the second paragraph — the fine print — that really drives home the point of amendment supporters.

”This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”

So, what does that second paragraph mean? Supporters of the amendment claim that the language simply means that activist judges — the boogeymen of social conservatives — won’t be able to impose gay marriage on the state by recognizing couples who married or entered into civil unions in other states.

Opponents say that no one knows for sure what the legal implications are of the language, though it’s very unlikely that the implications would be good for any couple, straight or gay. Will powers of attorney hold up? Will unmarried long-time partners be allowed visitation rights in hospitals? Will hostile families have an easy road to overturning the wills of their estranged gay relatives?

In a nice bit of political irony, all those questions will have to be answered by judges.

The Coalition asked the Arnold & Porter law firm to review the amendment and determine the possible legal implications. The resulting memo said that courts could interpret the amendment in ways that would ”invalidate rights and protections currently provided to unmarried couples under Virginia’s domestic violence laws,” ”undermine private employers’ efforts to attract top employees to Virginia by providing employee benefits to domestic partners,” and prevent the enforcement of private agreements between unmarried individuals, including wills and medical directives.

”Approval of the Amendment could cause significant disruption to settled legal rights, duties and protections in the Commonwealth,” according to Arnold & Porter, ”allow those seeking to escape their legal obligations elsewhere to clog our courts, and insert the courts into the private affairs of Virginians.”

By way of example, after Ohio passed a similarly broad constitutional amendment, one state court dismissed domestic violence charges against a man who wasn’t beating his wife, just his unmarried partner. While that case is wending its way through the Ohio system, some fear that similar judicial interpretations could happen in Virginia, where judges are not often seen as sympathetic to gay and lesbian concerns.

WHILE THE IMPLICATIONS of the amendment apply to all unmarried couples, gay or straight, naturally it’s gay couples who feel caught in the crosshairs.

Donna Dover and Ann Teague left their home state of Arkansas in the early 1980s, when Dover’s federal job transferred her to Northern Virginia. The two women had been together since June 17, 1977, the day they met at a women’s chorus audition in Fayetteville. Dover was smitten fairly quickly.

”I could sing alto or soprano,” she says. ”I figured wherever Ann went [in the chorus], I would sing that same range.”

Beyond singing, both women found they had a lot in common, including a passion for political activism honed in the days of the Vietnam War. They also were both previously married — Teague had three daughters and a son, Dover a son and daughter.

The women have made their home in Annandale since 1989, where Dover continued her career in federal communications training and Teague worked as a teacher for Fairfax County. Now both retired, Dover, 64, and Teague, 70, have been working with a financial planner to make sure their affairs are in order and they have the wherewithal to care for each other.

That’s why they fear what the amendment could mean for their future.

”As retirees living on a fixed income, some of the advantages of [marriage] are denied to us,” says Teague. ”Many of the financial advantages don’t exist for us. It makes it more difficult for us when we’re planning for taking care of ourselves and taking care of each other.”

Dover says that amendment hits home because it takes an already difficult situation and fills it with uncertainty and doubt.

”I made a lot more money [than Ann],” she says. ”I would like to know that she’s taken care of [when I’m gone]…. If this amendment passes, it calls all the documents that we’re doing right now into question.”

She says it’s difficult ”not knowing if our wishes are going to be honored.”

Dover and Teague both seem enamored of their suburban neighborhood. While they had some initial hesitation involving themselves in the day-to-day interaction of their own little community, they found it to be a welcoming and generally supportive place. When their 25th anniversary party turned into a bigger bash than they expected, many of their neighbors were eager to celebrate with them.

They don’t want to leave their neighborhood behind, but should the amendment pass they’re not sure they will be able to stay.

”We have a long-range plan right now that in 2007 we will downsize our home and decide where we will locate and…adapt to condominium living,” says Dover. We will definitely look at other states, and what rights would be afforded us…in a state that doesn’t have such a hateful law.”

SHOULD WE STAY or should we go? That’s a question many gay and lesbian Virginians are asking themselves as the Nov. 7 vote approaches. It’s not an easy question, particularly when Northern Virginia provides the largest base of opposition to the amendment.

According to the Post, 55 percent of Northern Virginians oppose the amendment, highlighting the political disparity between the D.C. suburbs and the more conservative rest of the state. The divide even led some local radio talk show hosts to half-jestingly propose ceding Arlington and Alexandria back to D.C.

But that’s not so easy a joke for many gay Virginians.

Kelly Young grew up in Springfield — his parents still live in the same house where he spent his childhood. He went to the local high school and attended college at the University of Virginia. Right after finishing college in the early ’90s, he moved to Adams Morgan. It didn’t last long, and he ”went right back to Virginia.”

Now living in the Ballston area with his partner of seven years, Bill Reinsmith, Young has thrown himself into the campaign against the amendment. He’s one of the organizers for a fundraiser to be held on Thursday, Oct. 19, at the Human Rights Campaign building and sponsored by the Potomac Executive Network, GAYLAW and Capital Area Physicians for Human Rights. The event is one of a wave of fundraisers that have moved across the area as the Commonwealth Coalition and its supporters work to raise the money to finance their media buys during the final weeks of the campaign.

Young hopes to find support from the gay community both in Virginia and D.C. — and Maryland as well. While state borders may have a large impact in other areas of the U.S., the Washington area has a somewhat unique convergence.

”People go across the borders every day,” he says. ”I don’t view it as crossing from one state to another.”

He believes that an effort such as the battle against the Virginia amendment is of great importance to everyone in the area, because virtually everyone has ”clients, families, customers and friends in Virginia.”

Young, who launched his own Web site on the issue (www.tokeepussafe.org), is optimistic about the chances for defeating the amendment. ”I think this is winnable. I don’t think it’s in the bag by any means.”

Like many others, Young sees the amendment as overreaching on the part of the social conservatives and far-right wingers who pushed it forward. If the amendment were a simple ban on same-sex marriage — which has been explicitly illegal in Virginia since the 1970s — it ”would win in a heartbeat.” But the broad and uncertain nature of the amendment’s second part gives opponents an opportunity, as long as people learn about the entire thing.

”It is such a gross overreach,” he says.

Young points to his own family experience. He grew up in evangelical Christian family. When he came out during his senior year of college in an op-ed for the school paper, he expected the worst and made plans to finish out his education on his own dime. It was an unnecessary preparation.

”I didn’t give them enough credit,” he says. His parents gave him the ”total opposite” reaction. It was clear that they still have religious issues, but no question about their love for their son.

While his parents don’t support gay marriage, they have welcomed Reinsmith. They also number among those who find the amendment to be too much — they’ve even agreed to contribute to the Oct. 19 event.

While Young enjoys his life in Virginia, if the amendment passes, his recent efforts in planning with his partner — creation of living wills and medical directives — will be ”thrown into the air.” The couple has discussed the possibility of adoption, a step that, if the amendment passes, would lead them out of the state.

”I could not live in Virginia with children because of the implications for custody agreements, and what I would view from this amendment as disrespect for the family unit,” he says.

And it’s not just individuals who may face difficult choices about where to make their homes. Some businesses will have to make them as well.

In another example of the divide between Northern Virginia and the rest of the state, the suburban areas stretching from Arlington and Alexandria all the way through Fairfax County to Loudon County have found themselves in a still-active boom in technology, government and other revenue-generating businesses. That growth has made the area attractive to what George Mason University Professor Richard Florida has deemed the ”creative class.” Another part of what attracts that class is acceptance and tolerance of gay and lesbian people.

Virginia State Del. Adam Ebbin (D-Alexandria), the first openly gay person elected to the state’s Legislature, fears that the passage of the amendment could hamper the area’s economic status.

”Northern Virginia is the economic engine for the entire state,” he says. ”The job growth in the high tech corridor is phenomenal.

”The more unwelcome Virginia were to make gay people and immigrants and minorities feel, the more we threaten the goose that laid the golden egg.”

There is reason to believe that anti-gay policies will hurt business in the state. In 2005, Ebbin points out, Virginia became the 50th state to allow for extension of insurance benefits to domestic partners. That came about in large part when BNA, a large firm that covers nearly every government agency, was considering relocating to the state. BNA let the legislature know that the move wouldn’t happen if the company were unable to continue offering domestic partner benefits to its gay and lesbian employees.

Ebbin is optimistic about the trend against the amendment as Nov. 7 approaches.

”We can clearly win this election,” he says. ”We’ve been facing a bit of an uphill struggle, because the other side has a simple, inaccurate message. Our message is more complicated…. which is why we have to out-campaign and out-communicate the other.”

Some of the optimism has been borne out by fundraising success for the Commonwealth Coalition, which announced on Oct. 16 that it had raised nearly $450,000 thus far. With its staff and infrastructure costs already covered, Gastanaga says that the money — and the money raised in upcoming fundraisers — will be targeted toward media buys throughout the state to get voters to read the fine print of the amendment.

The Coalition has also garnered some significant support from the non-gay political community, including Gov. Kaine and former-Gov. Mark Warner (D). On Oct. 18, the Coalition announced that the Richmond delegation to the legislature were opposing the amendment, including some who originally voted for the amendment.

”If we win, it will be making history,” says Gastanaga. ”All you have to do is get people to read the whole thing. They stepped over a line, they went too far, and they’ve swept a lot of people up — people get their meanness [in the amendment] because it’s so palpable.”

For more information on the Commonwealth Coalition, visit www.votenova.org.

Sean Bugg is Editor Emeritus for Metro Weekly.

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