Analogous to marriage, except for the benefits

Debra Stroud and Joseph Stroud were married. Then they weren’t anymore, and the contract they agreed to required Joseph to pay Debra $4,000 per month, with the payments to end in the event of Debra’s remarriage or “cohabitation with any person … in a situation analogous to marriage.”

Then Debra “began living with another woman in a sexual relationship that also included joint child-rearing and household duties” – which sounds an awful lot like a marriage. Joseph thought so too, and sued to have his financial obligation terminated. The judge who heard the case disagreed with Joseph and agreed with the “Family Foundation”; he ruled that a partnership between two women could never be considered analogous to marriage.

So far so good (if you like that sort of thing). But Joseph wasn’t buying it. He appealed, and the the state Court of Appeals ruled Thursday that he was right all along: Debra and Robyn, who have exchanged rings, do have a relationship analogous to marriage.

Let the fun begin. The “Family Foundation” agreed with the previous ruling, but good golly, they have to agree with this one, too. Otherwise, they would have to admit they were wrong. It’s quite a pickle.

Chris Freund, spokesman for conservative Family Foundation of Virginia, said the ruling proves that opponents of last year’s constitutional amendment prohibiting gay marriages and civil unions were wrong in claiming the measure would interfere with private contract rights.

This is either incredibly sloppy reasoning, or a transparent attempt to torture out of this ruling the desired meaning for their press release. The ruling does not concern a private contract entered into by the same sex couple. The contract in question (the property settlement agreement) was entered into by the formerly married hetero couple. Recognition that the current partnership is “analogous to marriage” has nothing whatsoever to do with recognition of any contract between Debra and Robyn.

What the ruling does, however, is overturn this precedent: “In Virginia, where marriage between persons of the same sex is barred — ‘cohabit’ has to mean between people of the opposite sex . . . as a matter of law, in Virginia, people of the same sex cannot cohabit.” That ought to be the end of the absurd idea, introduced by former AG Gilmore, that Virginia’s domestic violence law excludes same sex couples.

The question is really whether this narrow recognition of a legal status for same sex couples will lead to broader erosion of the inequality supposedly set in concrete by last year’s amendment. It seems inevitable because of the constant presence of intimate relationships in life and contract law. David Spratt, former chairman of the Virginia Bar Association’s Domestic Relations Section, told the Daily Press

“The legislature certainly does not recognize same-sex relationships as anything–they don’t even recognize the capacity of same-sex couples to contract,” said Spratt, now a legal rhetoric professor at American University, Washington College of Law. “So the fact that a court is saying a relationship between same-sex couples can be analogous to marriage is important.”

He noted that Virginia law defines adultery as sexual intercourse between a married person and someone of the opposite sex. By recognizing same-sex cohabitation, the court could provide the impetus to change the adultery law to cover homosexual acts, Spratt suggested. Such legislation died in the session that ended Saturday.

Anti-gay activists want to have it both ways. They want adultery to be punished as if same sex and opposite sex relationships have the same status, but at the same time they don’t want same sex couples to have the benefits of that equal status. Because of that inherent contradiction, I find Waldo’s reasoning here sound: Each time they are faced with such a contradiction, courts “will ultimately find that there’s nothing special about two people of the same sex that turns existing contract law on its head. Bit by bit, piece by piece, civil unions will become legal in Virginia because the alternative is to establish stupid case law.”

Had the adultery legislation (ironically patroned by Bob “I don’t think these things through completely” Marshall) passed, it would have arguably created the first instance of a legally recognized status for same sex couples analogous to marriage, and it would have been at least as entertaining to watch the Some Families Foundation try to spin that. I suggested elsewhere that someone could make a fun project of creating the hypothetical Some Families Foudation explanation had the court come to the opposite conclusion – which a higher court could very well do, faced with the absence of clear language to guide it. As Equality Virginia has long warned, these legal contortions will continue for years.

“While we applaud the decision to legally recognize two women as a couple in a marriage-like relationship in the shadow of the so-called ‘marriage amendment’, it is quite ironic that the Court chose to recognize this relationship in order to remove a marriage benefit when the state has consistently denied recognizing the right to provide marriage benefits to gay and lesbian couples,” said Dyana Mason, Equality Virginia’s Executive Director. “It’s going to be very interesting how the Virginia Supreme Court responds to this case if it is appealed.”

Equality Virginia Education Fund’s Amendment Watch program will carefully monitor this case to see if and how the so-called “Marriage Amendment” may be interpreted by courts across the state. EVEF expects years of litigation similar to this as individuals and organizations attempt to understand and define the implications of the recent change to the Virginia Constitution.