With the passage of the so-called "Marriage Affirmation Act" last month, the General Assembly has called upon Virginians to rally at the parapets for another round of massive resistance to social progress. Virginia legislators, in the tradition of segregationists of decades past, have drawn a pink line in the sand relegating gay Virginians to second-class citizenship. This isn't just a return to one of Virginia's most sacred institutions -- "separate but equal." This is a 21st-century apartheid, Virginia Style.This is only the most recent in a series of legislative initiatives all but calling for border signs warning: “Gays stay out!” Despite last year’s United States Supreme Court decision invalidating sodomy laws, Virginia’s legislature thumbed its nose and refused to repeal or even modify its now unconstitutional ban on sodomy. Delegate David Albo, R-Fairfax, suggested doing so would lead to an unabated rash of sodomy in the streets. Albo’s cries are familiar in the land of blue mountains and tidewater. They echo the admonitions of his predecessors who warned against the integration of schools, giving women the right to vote, and interracial marriage.
Although Virginia has been home to some of the most horrific examples of gay-related assaults and murders, the state Senate committee considering hate crimes legislation has, year after year, refused to include stiffer penalties for hate-based crimes against gays. Likewise, the General Assembly, in concert with the attorney general, has actually prevented local governments and school boards in Arlington and Fairfax from making it illegal to fire someone for being gay or to harass a gay student. Perhaps our legislators should talk with some of the students who have been beaten or spit upon for being different before they next consider this issue.
The General Assembly has even injected its politics of intolerance into the corporate boardrooms of Virginia businesses. In a bizarre retreat from Virginia’s politics of laissez faire, it rejected an effort that would have permitted willing private employers to offer health insurance benefits to domestic partners. No other state in the Union has such an extremist policy limiting the choice of private business. Rather than keeping down the numbers of uninsured in the state, the General Assembly has now increased the cost of health care for all Virginians.
Now, with the “Marriage Affirmation Act,” the General Assembly’s hostility has taken on a new and more dangerous tone. In a frenzy of populist politics not seen since the “No Car Tax!” pledge, legislators enacted sweeping legislation that Virginia’s legal scholars call “recklessly over-broad.” The name of the act itself is misleading. It does nothing to affirm marriage. Gay marriage has been illegal in the commonwealth since 2000, and civil unions have never been recognized in Virginia. Even so, the Act goes further than outlawing civil unions. It actually prohibits members of the same sex from entering into any “arrangement” that “purport[s] to bestow the privileges or obligations of marriage.”
It is precisely because Virginia does not recognize civil unions, that gay Virginians enter into these “arrangements.” They take the form of wills, medical directives and custody agreements, just to name a few. The U.S. General Accounting Office, Congress’ investigative agency, has identified more than 1,000 rights attendant to marriage. These rights allow married heterosexuals to live with a sense of security. They know that they can care for one another. They know that their rights to their property and families are secure. And they know when they go to sleep at night that if they don’t wake up the following morning their wishes will be carried out. For gay Virginians, contracting for all of these rights was once a difficult and costly process; now it is illegal and impossible.
It’s ironic that as Virginia once again chooses discrimination over individual liberties, our fellow commonwealth to the north is acknowledging the value of its gay and lesbian citizens. Massachusetts recognizes the simple fact that no one’s nuptials are harmed or demeaned when everyone shares in the rights, protections and obligations of marriage. It’s also paradoxical that Massachusetts would begin to recognize the dignity of gay couples on the 50th anniversary of Brown v. Board of Education, the Supreme Court’s decision that forever linked Virginia with massive resistance.
Last month, Virginia was at a crossroads. Despite the painful lessons of the past, the General Assembly chose to take the path of ignorance and once again has put the commonwealth on a course towards massive resistance. Thomas Jefferson wrote that “laws and institutions must go hand in hand with the progress of the human mind as that becomes more developed [and] enlightened.” Once again, Virginia will lead the charge to ignore this advice from its most revered founding father.
Before we pull up the welcome mat for gay Virginians for good, we should consider the costs and consequences of discrimination. On the economic front, groups are now organizing a statewide boycott of Virginia. But more importantly, as we approach the 400th anniversary of the landing at Jamestown, we should consider how we will be viewed by the generations that come. Are we, as a commonwealth, ready to write another chapter in our history of intolerance? The choice for Virginia is whether it is ready to accept the simple truth that gays are deserving of fundamental human rights or to heed the battle cry of the General Assembly and take to the parapets to defend the commonwealth against enlightenment. S
Tracy Thorne is an attorney in Richmond, and vice chair of Equality Virginia..
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