Op-Ed

Virginia’s New Jim Crow

Jonathan Rauch

On July 1 Virginia takes a big step backward, into the shadow of Jim Crow.

I do not write those words lightly or rhetorically. Although I’m an advocate of same-sex marriage, I have taken care not to throw around motive-impugning words such as bigotry, hate or homophobia. I have worked hard to avoid facile comparisons between the struggle for gay marriage and the struggle for civil rights for African Americans; the similarities are real, but so are the differences.

Above all, I have been careful to distinguish between animus against gay people and opposition to same-sex marriage. No doubt the two often conjoin. But millions of Americans bear no ill will toward their gay and lesbian fellow citizens, yet still draw back from changing the boundaries of society’s most fundamental institution. The ban on gay marriage in 49 states (Massachusetts, of course, being the newly minted exception) may well be unfair and unwise, as I believe it to be. Yet people of good conscience can maintain that although all individuals are equal, all couples are not.

If I seem to be splitting hairs, that is because Virginia—where my partner and I make our home—is not splitting hairs. It has instead taken a baseball bat to civic equality, thanks to the so-called Marriage Affirmation Act.

The act—really an amendment to an earlier law—was passed in April, over Gov. Mark R. Warner’s objections, and it takes effect July 1. It says, “A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges and obligations of marriage is prohibited.” It goes on to add that any such union, contract or arrangement entered into in any other state, “and any contractual rights created thereby,” are “void and unenforceable in Virginia.”

When gay marriage came up, Virginia was among the first states to preemptively ban it, in 1997. Moreover, Virginia is the only state to forbid even private companies, unless self-insured, from extending health insurance benefits to unmarried couples. That provision affects cohabiting straights but works a far greater hardship on gay couples, who cannot marry.

Those steps, however, impinge on the power of third parties (corporations and the government) to recognize gay couples. In the Marriage Affirmation Act, Virginia appears to abridge gay individuals’ right to enter into private contracts with each other. On its face, the law could interfere with wills, medical directives, powers of attorney, child custody and property arrangements, even perhaps joint bank accounts. If a gay Californian was hit by a bus in Arlington, her medical power of attorney might be worthless there. “Sorry,” the hospital might have to say to her frantic partner, “your contract means nothing here. Now leave before we call security.”

Some of the law’s sponsors have denied intending such a draconian result, and courts may interpret the text’s vague and peculiar language more narrowly. Nonetheless, the law as written is a threat to all Virginians and indeed to all Americans, gay and straight alike.

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.

The law may be found unconstitutional or narrowed through interpretation, but judicial review could take years. Far better, in any case, would be for the legislature to salvage its good name by repudiating and repealing the law.

The legislature needs some help in recognizing its error. Dyana Mason of Equality Virginia, a gay advocacy group, notes that the new ban is beginning to attract some outside notice. A nascent movement to boycott Virginia has formed. A few newspapers, including this one, have editorialized against the law.

That is a start. But when Rhea County, Tenn., tried to ban gays from living there, it became a national laughingstock and hastily backed down.

Obstructing gay couples’ private contracts is no less vindictive and abusive, and it deserves the same nationwide opprobrium — especially among conservatives who distinguish between denying marriage to gay couples and denying civil rights to gay individuals. If Virginia’s attack on basic legal equality does not offend and embarrass conservatives, what anti-gay measure possibly could? And if this law is not snuffed out, what might be next?

Jonathan Rauch, a writer in residence at the Brookings Institution, is the author of Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.