Rauch on Virginia's Marriage Affirmation Act

Via Sullivan
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Virginia's Marriage Affirmation Act goes into effect July 1. Although its supporters deny this is what they had in mind, the law could interfere with gay people's right to make contracts with each other such as "wills, medical directives, powers of attorney, child custody and property arrangements, even perhaps joint bank accounts."

The law states:

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 20-45.3 as follows:

§ 20-45.3. Civil unions between persons of same sex.

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

But even if the law is not interpreted to deny Virginia's gay couples the right to contracts such as power of attorney and medical directive (and clearly the only ones who will benefit as that's sorted out are lawyers), it is quite successfully designating gays as second-class citizens. Jonathan Rauch explains:

Before Thomas Jefferson substituted the timeless phrase "pursuit of happiness," the founding fathers held that mankind's unalienable entitlements were to life, liberty and property. By "property" they meant not just material possessions but what we call autonomy. "Every man has a property in his own person," John Locke said.

It is by entering into contracts that we bind ourselves to each other. Without the right of contract, participation in economic and social life is impossible; thus is that right enshrined in Article I, Section 10* of the Constitution. Slaves could not enter into contracts because they were the property of others rather than themselves; nor could children, who were wards of their parents. To be barred from contract, the founders understood, is to lose ownership of oneself.

To abridge the right of contract for same-sex partners, then, is to deny not just gay coupledom, in the law's eyes, but gay personhood. It disenfranchises gay people as individuals. It makes us nonpersons, subcitizens. By stripping us of our bonds to each other, it strips us even of ownership of ourselves.

Americans have a name for the use of law in this fashion, and that name is Jim Crow. It is not a name much called for anymore, but the Marriage Affirmation Act -- could that name be any more inapt? -- is the genuine article.

*Would this alone make Virginia's law unConstitutional?

Article 1. Section 10. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

Comments

[JimPortlandOR]

A federal court won't even have to reach to the equal protection provisions of the Bill of Rights, as the VA law's provisions on contracts appear to be a direct violation of the US Constitution on impairment of contracts.

It is a unfortunate someone will have to fight VA on this issue, but 'bring it on'.

This is really shameful. Can't they read the Constitution?

What did they think they were gaining for marriage by this stupid provision?

Maybe it is really time for civil unions for all parties - no marriage recognized by the state. Make marriage an optional religious-only affair for couples after their civil union.

Let the churches decide which civil unions each sect wants to recognize.

And get the churches out of the business of determining who can make civil union contracts.

[Ubik]

Ya know, I just met (videologically) Mr. Rausch on cspan at a panel at the AEI on gay marriage.

Dude RULED.

Impressed the hell out of me.

[Nell Lancaster]

What did they think they were gaining for marriage by this stupid provision?

Nothing. This is about pandering to fundamentalists, expressing and fanning hatred of lesbians and gay men, and poking a stick in the eye of the Democratic governor.

I will stay active in the Democratic Party of Virginia as long as it takes to see every Democratic legislator who voted for this Jim Crow law gone. Starting with Lionel Spruell, who should know better.