Bye bye business?

In Businesses Say ‘No’ to Marriage Amendment, the Connection newspapers report on the growing voice of the Virginia business community warning of the impact of the Marshall/Newman amendment on economic development.

“Our history in Virginia has been about opening doors, not slamming doors shut,” said J. Douglas Koelemay, managing director of Qorvis Communications, a Tysons Corner public affairs firm. “If this amendment passes, Virginia will be a place where doors are slammed shut. That’s not good for business and that’s not good for anybody else either.”

Only last year, Virginia finally shed the embarrassment of being the only state in the union that prohibited private employers from extending health insurance benefits to the unmarried partners of their own employees. The business community lobbied hard to overturn that absurd law, demonstrating that it put Virginia businesses at a distinct disadvantage in attracting and retaining the best workforce. Apparently sensing how damaging the wrath of the business lobby will be to their campaign, amendment proponents are furiously spinning:

The proposed constitutional amendment would not invalidate that law, said David Clementson, a spokesman for Attorney General Bob McDonnell (R). “No, absolutely not,” he said. “It does not conflict with what this amendment would do. Absolutely not.”

Where have we heard this before?

Mr. Clementson has been instructed to be very careful with his language usage: the amendment “would not invalidate that law.” No, it wouldn’t, just as it wouldn’t “invalidate” private contracts. But it would provide the basis for lawsuits challenging the constitutionality of the law, as we are currently seeing unfold in Ohio and Michigan. And unlike cases involving a private contract such as a medical directive, where a litigant would be required to have standing, courts have allowed the anti-gay industry itself (for instance, the Alliance Defense Fund) to file these lawsuits.

Health care benefits are not, to a rational person, a statutory right or benefit of marriage, but a benefit of employment. However, that has not prevented anti-gay activists from making the following sort of argument:

“Michigan State University’s so-called domestic-partnership benefits policy clearly and expressly attempts to equate homosexual relationships in being equal as marriage,” American Family Association of Michigan Glenn said. “We see this as being in violation of the state’s constitution.”

From a July 10, 2006 editorial of the Lansing State Journal:

This is the inevitable result of the passage of Proposal 2. In 2004, Prop 2 backers argued that Michigan needed a constitutional amendment to define marriage as one man, one woman.

But Prop 2 did far more than that, as some tried to warn. Its phrase “or a similar union for any purpose” opened the gates for legal attacks on public benefits available to same-sex couples and their families.

Backers said this wasn’t about existing benefits, but marriage. Michigan overwhelmingly approved Prop 2 – and the same groups shifted into Phase II: legal attacks on existing benefits.

Ohio State Rep. Thomas E. Brinkman Jr., assisted by the Alliance Defense Fund, is currently pursuing a lawsuit claiming that Miami University’s benefits policy violates the Ohio amendment that defines marriage as “only a union between one man and one woman” and prohibits state agencies from creating or recognizing “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effect of marriage.”

In higher education, many colleges have concluded that they must offer same-sex domestic-partner benefits in order to compete for top faculty members. As of last year, 289 colleges including nearly three out of four of the nation’s top research universities offered health benefits to the domestic partners of gay employees, according to a report released in June by the Human Rights Campaign. We have some fine public universities in Virginia, the viability and reputation of which are critical to our continued economic development. Enough said.

Meanwhile, the Washington Blade reports that the American Psychological Association is moving its planned 2007 and 2008 meetings from Virginia to DC because of concerns that the legal partnership arrangements of some staff and members may not be honored. The APA made its announcement at the end of July. Ray Warren, a former judge and conservative Republican state senator who runs The Virginia Way, told the Blade:

[The amendment] will put Virginia at a competitive disadvantage. When you are attempting to lure a major corporation to Virginia they are likely to have senior management employees who are accustomed to domestic partner benefits. Almost all Fortune 500 companies offer domestic partnership benefits.

Warren said he and his partner have domestic partner benefits, but they had to prove mutual dependency and undergo a formal procedure for recognition of their relationship. He said the amendment could call such an arrangement into question.

If you have an amendment that says courts may not recognize any other kinds of relationships, it makes it impossible for them to enforce or create case law regarding domestic partnership benefits. If courts can’t enforce benefits based on laws, we don’t have much in the way of rights.

Finally, Jim Bacon weighs in with this post, in part:

In a hyper-competitive global economy, regions compete primarily on their ability to develop, recruit and retain human capital. Any measure that makes Virginia inhospitable to the gay population, five percent or so of the population, creates an unnecessary competitive disadvantage for Virginia businesses.

I recognize that competitive economic advantage must be balanced against other considerations such as upholding the institution of marriage. I’m open to both sides of the argument, indeed I flip-flop worse than John Kerry, but my gut tells me that Virginia’s amendment, as currently worded, goes too far.