Virginia Is for (Homoracial, Heterosexual, Mentally Adequate) Lovers

Old Dominion's old attitudes rise again

By a razor-thin vote (49-48), the Virginia State House passed a bill in late February that would allow private companies to extend health insurance coverage to members of employees' households other than spouses or dependent children. The measure was surprisingly controversial, given that it included no legal requirement for companies to cover anybody and that every other state in the union already allowed private firms to offer such coverage. Why was the Republican-dominated State House so reluctant to allow greater freedom of private contract?

In a letter circulated to colleagues, delegate Richard H. Black (R - Loudoun) framed the issue in terms that are becoming all-too-familiar to gay Virginians. Black acknowledged that the bill did not "mandate same-sex benefits" but he warned that the "ultimate objective is to mandate such benefits for same-sex partners," so legislators should not push the state down this slippery slope.

The state of Virginia has been busy shoring up its footing for the past several years. Not content to trust that the federal Defense of Marriage Act would allow the state to refuse to recognize gay marriage, the state in 2004 passed a law prohibiting civil unions with the Orwellian title the "Marriage Affirmation Act."

The language of the Marriage Affirmation Act is incomprehensibly broad. Does its ban on "partnership contract or other arrangement" include wills, custody agreements, medical powers of attorney, or joint bank accounts? Is my mortgage, for instance, shared with my partner, an "arrangement…purporting to bestow the privileges of marriage"? This session the legislature moved to make the marriage and civil union bans immune to legal challenge by passing them as a constitutional amendment. If the same body approves the bill again next year, it will go to voters to decide in 2006 whether to write this blatant discrimination against a class of people into the state constitution.

By my conservative estimate, the effort to circumscribe gay relationships is not the Virginia legislature's first attack on private, contractual relationships in the past century; it's the third. The first two efforts are now almost universally condemned, if not always well remembered.

The first push occurred in 1924. At the urging of "progressive" advocates of eugenics, Virginia enacted a law requiring the sterilization of people in state institutions "who shall be found to be afflicted with a hereditary form of insanity or imbecility." Only three months after the bill took effect, Virginia officials found a good case to test the validity of the law. Carrie Buck had been committed by her foster father to the State Colony for Epileptics and the Feeble-Minded after she gave birth to an illegitimate child at the age of 17. The superintendent of the facility asked a state board to order her to be sterilized because she was a "moral delinquent . . . of the moron class."

As William E. Leuchtenberg writes in The Supreme Court Reborn, Buck had been "branded as wayward because of her allegedly licentious behavior though, in fact, she had become pregnant because she had been raped by a relative of her foster parents." Her biological mother had also been committed to the same institution, and a representative of the Eugenics Record Office submitted the results of a test supposedly showing that Carrie's seven-month-old daughter Vivian was mentally below average—thus showing a hereditary pattern of mental defectiveness. (In fact, Vivian made the honor roll in public school before she died of a childhood ailment at the age of seven.)

The head of the Eugenics Record Office, who never met Carrie or any of her family, testified that she suffered from hereditary feeble-mindedness. He relied on a nurse who had said, "These people belong to the shiftless, ignorant, and worthless class of anti-social whites of the South." Virginia's Supreme Court of Appeals eventually found that Buck, "by the laws of heredity, is the probable potential parent of socially inadequate offspring likely affected as she is."

It took three years for the case to reach the U.S. Supreme Court, which ruled in favor of the state. Justice Oliver Wendell Holmes, the country's most respected jurist, wrote that there is a state interest in preventing "those who are manifestly unfit from continuing their kind." In conclusion, he wrote, "Three generations of imbeciles are enough." Carrie Buck was sterilized. And thanks to the case of Buck v. Bell, so were another 8,000 Virginians and more than 60,000 other Americans. They were forcibly deprived of the chance to have children based on flimsy evidence of their low intelligence.

More than 30 years later, Virginia's longstanding law against interracial marriage—dating back to colonial times and reaffirmed in the Racial Integrity Act of 1924—came under fire. Mildred Jeter, who was black, and Richard Loving, who was white, grew up near each other in Caroline County, Virginia. Eventually, barred from marriage in Virginia, they went to Washington, D.C. to marry. They then returned to Caroline County and lived together.

The Lovings were indicted for violation of the anti-miscegenation law and pled guilty. They were sentenced to a year in jail; the state's law didn't just ban interracial marriage, it made such marriage a criminal offense. However, the trial judge suspended the sentence on the condition that they leave Virginia and not return together for 25 years. He stated in an opinion that "Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

The Lovings moved to Washington, but in 1963 they filed suit to have their sentences overturned under the Fourteenth Amendment. They didn't expect an easy time of it; a Gallup Poll indicated in 1965 that 42 percent of Northern whites supported bans on inter-racial marriage, as did 72 percent of Southern whites. The case found its way to the Supreme Court, which unanimously overturned the law against interracial marriage in 1967. Chief Justice Earl Warren wrote for the majority, "The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival."

Neither of these now-derided laws is a perfect match with the predicament facing gays in Virginia, but both flowed from an arrogant desire by the state to control private relationships. The state is schizophrenic about such things, but if the past is any indicator, things do not look good for gay Virginians. In the 1995 case of Sharon Bottoms, the Virginia high court took a two-year-old child away from his lesbian mother, because of her sexual orientation. If voters pass the amendment against gay marriage and civil unions next year, it would have real teeth. Already, many gays in Virginia are talking about moving to Washington or Maryland if what they view as an anti-gay crusade doesn't recede. If things continue on their present course, the state might have to amend its slogan, "Virginia is for lovers," to include the caveat, "some exceptions apply."