Not for Lovers

Banning same-sex contracts.

As gay couples in Massachusetts celebrate their newfound right to marry, Virginia couples find themselves stripped even of the right to create marriage-like private contracts. The state's Affirmation of Marriage Act, which takes effect in July, not only forbids the state from recognizing same-sex marriages or civil unions performed elsewhere but voids any private "partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage."

Constitutional scholars have said the law appears to violate the 14th Amendment's Equal Protection Clause, as well as the clause of Article 1, Section 10 that prohibits states from passing laws "impairing the obligation of contracts." Gay rights groups, such as Equality Virginia, have suggested that the law could complicate property bequests and interfere with the ability of gay Virginians to designate partners to make medical decisions for them. Virginia Delegate David Albo (R-Springfield), one of the bill's sponsors, denies this is the case, saying the law voids only contracts that purport to form marriages.

But Albo himself seems unclear on what that means. Would a contract that creates the same legal relationships as a marriage without ever using the word marriage be permitted? No, says Albo. What about more-limited contracts providing only some of the rights associated with marriage? "I guess we don't know that yet," says Albo. "That's what the courts are for; they'll figure that out." Apparently, activist judges are a problem only when they're granting rights to gay people.