Three and a half years ago, Leigh Guthrie and Ellen Fulton moved onto a leafy street in Oakton with their twins. Like many young families, they were drawn by the schools, the safe neighborhood and the proximity of family. Both spent time growing up in Northern Virginia and Fulton’s parents live in McLean.
“The kids’ grandparents are right here and they’re a daily part of their life,” said Fulton. “We wanted to raise children around family.”
Guthrie works for a financial services company that offers domestic partner benefits, which allows Fulton to stay home with the children until they start school next year.
But as much as they like living in Fairfax County, they may have to move out of Virginia by a new state law they say strips gay couples and families from many of the legal protections granted to married couples.
But at the April 24 County Board meeting in Arlington, Board member Jay Fisette called the bill “a poorly drafted piece of legislation [that] is plainly unconstitutional.” Fisette, the only gay man holding local office in Northern Virginia, said the bill “established second-class citizenship for me and other people who are gay and lesbian.”
<b>THE LAW,</b> set to take effect July 1, would prohibit same sex couples from entering into legal contracts. The extent of the law is still unclear because the language is so vague, said Dyana Mason, executive director of the gay rights lobbying group Equality Virginia. She estimated there were about 350,000 gays and lesbians in Virginia.
Fisette said he and his partner, Bob Rosen, had drafted contracts giving each other the opportunity to make those medical decisions, and had written wills each naming the other as the primary beneficiary.
“Now I’m being told that those legal documents that I paid for are unlawful,” Fisette said.
The law is so broadly written that it could also apply to two people of the same sex who are not romantically involved said Mason.
“Say you have a really good longtime friend that you want to will some property to,” she said. “That could be challenged under this law. … You’re going to have to prove that you’re not a couple.”
The House originally approved the bill in February and the Senate in March. Gov. Mark Warner (D) amended the bill, citing concerns that it may be too broadly written to be constitutional. But last week, the General Assembly overturned Warner’s amendments and passed the bill in its original form. The vote in the House was 69 to 30 and 27 to 12 in the Senate.
In a statement, Warner said the bill "would appear to violate the equal protection clause of the U.S. Constitution by prohibiting certain contracts between two people of the same sex regardless of their sexual orientation while permitting the exact same contracts between men and women."
Fisette agreed. “Constitutional lawyers across the state wrote in advance, to tell them this position is unconstitutional. This will clearly be going to court.”
But Del. Tim Hugo (R-40), who voted to override Warner's amendments, said, "I think people just disagreed with him. The overwhelming majority of the House disagreed with him and the Senate. He was overridden by a big majority of Republicans and Democrats."
<b>NEW LEGISLATION IS UNNECESSARY</b> because gay marriage and civil unions are already prohibited in Virginia, said Ellen Qualls, Warner’s press secretary.
“The Governor would have essentially kept things status quo,” she said. “This particular wording goes farther than any other state in the nation in terms of restricting partnership.”
Qualls added that Warner received letters from four Virginia constitutional scholars who said the law might be unconstitutional.
“We’re going to be exploring all legal options to defeat this and to overrule this unconstitutional bill,” said Mason. “The General Assembly just opened the door for endless rounds of litigation during tough budget times.”
“There’s progress being made in this country and there’s a backlash,” said Guthrie. “And the backlash happens to be right here.”
<b>“I’VE NEVER</b> felt victimized about being gay until now,” said Fulton. For that reason, Fulton and Guthrie are considering moving to states that they feel are more friendly to same sex couples.
“We have a tremendous support from family and friends and to have to leave that is devastating,” said Guthrie.
They aren’t alone. Mason said attorneys for same sex families have been advising their clients to move to Maryland -- which, unlike Virginia, allows gay and lesbian parents to legally adopt their partner’s children. The first baby born at Fairfax Hospital this year was born to a same sex couple who have since moved to Maryland.
Paula Prettyman, who lives with her partner in Vienna and who runs a group called Equality Fairfax said she is often contacted by gay and lesbian people who are considering moving to the county.
“What I tell them repeatedly is that the county is a great place to live,” she said. “If you’re willing to live without safety nets it’s a great place to be. But if you need to be secure, if you need legal protections this is not a great place to be.”
Prettyman has lived in the county since 1985 but she and her partner want to have children and they, too, may leave Virginia.
“The sign is going up across the state: We don’t want you here,” said Fisette. “Virginia doesn’t have a particularly proud history on civil rights. My only small solace is, Arlington’s history and Arlington’s tradition is very different from the rest of the state.”