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Waiting Game

A year later, Richmond's gay community remains concerned about H.B. 751.


For gay couples like Wood and de Sa, the law called into question the validity of legal and financial arrangements other than marriage, such as mortgages they might hold together, joint checking accounts and other shared financial assets. Could a judge perceive those arrangements as "purporting to bestow the privileges to obligations of marriage"?

More than a year after the passage of the law — which some contend is the most anti-gay legislation in the country — Wood and others in Richmond's gay community are getting the first returns on how it's affecting their daily lives.

"We own a house together, we have a mortgage together — he owns part of my business," Wood says of partner de Sa. "Now, it's up in the air."

Those most affected by the law have spent the last year poring over their financial arrangements and legal documents, preparing for the possibility of a court challenge.

But there have been some small victories of late. While a constitutional amendment banning gay marriage cleared its first hurdles in the General Assembly earlier this year, state lawmakers also killed a bill in a Senate committee that would have banned gay adoption, and passed legislation allowing employers to extend health insurance to domestic partners — by a single vote in the House.

"A lot of people feel like you need every protection you can get, even if it's a marriage license from another state," says Mary Gay Hutcherson, who "married" her partner, Yolanda, five-and-a-half years ago during a ceremony at the Metropolitan Community Church in the Fan. On their fourth wedding anniversary, Feb. 13, 2004, the couple was denied a marriage license by the state.

Hutcherson says the new law caught people off-guard. "We live out here in our suburban neighborhood and our neighbors ooh and ahh over our wedding pictures," she says. "They mow our yard when we're out of town."

"We just get a lot of support for who we are," she continues. "When something like [this law] comes up, we're shocked." Now she has friends who carry their power of attorney documents in their wallet, fearing it's the only way to prove their legal arrangements in cases of emergency.

Hutcherson and her partner considered leaving Virginia but decided to stay in the state to be close to their families. In the past year, though, Hutcherson says six of her friends have left the state rather than hang around to see how things shake out.

The uncertainty exists in part because few cases have surfaced to test how judges will interpret the law.

In one child-custody battle between two lesbian parents who were married in Vermont, split up and then returned to Virginia, a local judge denied visitation rights to one of the parents, citing H.B. 751. The decision has since been appealed.

Legal battles aren't the only worry. Before the courts get involved, individual decisions are in the hands of hospital administrators, mortgage lenders and bank tellers, says Dyana Mason, the executive director of Equality Virginia, a lobbying group that represents the gay and lesbian community.

She says her organization has heard of instances in which the law has gotten in the way of gay couples trying to conduct business with hospitals or related to housing, but says they've been afraid to come forward for fear of retribution.

On the other hand, Linda Woods, who practices family law in Richmond, says there have been occasions when she's received authorization from a judge allowing same-sex partners to have joint custody of a child.

Those who are sticking it out here report a mixed bag of experiences. The day after the law took effect last year, Ladelle McWhorter's partner came down with a terrible migraine. At the hospital the nurse at the front desk refused to allow McWhorter, a philosophy professor at UR, to visit her.

The women have documents giving them power to make medical decisions for each other, including provisions giving next-of-kin rights in the hospital. Rather than raise a fuss, McWhorter waited for a friendlier nurse.

"Last month, my partner and I decided that we wanted to put her name on my savings account at Bank of America, and they had absolutely no problem with it," McWhorter reports.

McWhorter says she has friends who decided to leave Richmond. One couple went to Maryland to protect their custody agreement, and one older couple left because they were worried about their assets as they aged.

Woods, who happens to be McWhorter's attorney, has enjoyed the influx of clients the new law has brought, but sees a lot of the concern as misguided. "I got a lot of business," she says, "but I explained to every one of them that there weren't a lot of contracts out there that would be automatically illegal."

The two most popular things she drafts are standard wills and medical directives, protections legally married couples obtain all the time. Custody, she points out, is not a natural right that flows from marriage. For example, when heterosexual couples remarry, the estranged biological parent retains custody.

"I can list dozens of things that married people can get automatically because they're married — they're just not government-sanctioned things," Woods says. She adds that engaging in sexual acts outside of marriage, illegal but never enforced, and the right to file joint taxes are the only things gay couples can't get around.

"If somebody wants to check out if they should be worried," Woods says, "they should ask, 'Could somebody who is not married do this?'" Because the documents she drafts are not specific privileges or obligations of marriage, she is confident they will be honored.

Despite these assurances, the fear remains. "It's our medical proxies and power of attorney and custody," McWhorter says. "People are terrified that their agreements aren't going to hold up." S

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