Mary Cheney and her wife are expecting a child. Since they live in Virginia, only one of them will be legally permitted to have any rights to the child and the other will be treated by the state as if she were a total stranger. Way to go, Virginia — you’ve screwed over a pair of total strangers and potentially created life-threatening problems for a little kid…why?
Comments are closed.
Even among those of us who thought Amendment 1 went too far (like me), is not the above a little hyperbolic? Can’t Ms. Cheney and her partner hire an attorney to create a custody agreement, durable power-of-attorney, etc. to achieve for them what the law does for hetero couples? (I’m askin’ ya, I’m not tellin’ ya.)
I know about the denial of the “incidents of marriage” clause in Amendment 1, but obviously the language has yet to be construed by any court, and I specifically remember AG McDonnell telling an interviewer that the amendment would not nullify contractual agreements between same-sex couples.
AG McDonnell is either stupid or unrealistically Pollyanna about professional legal ethics. I’d like to think it’s the latter.
The second clause of the new amendment to the Virginia Constitution specifically states that the courts can not enforce or uphold any contractual arrangements that approximate the “rights of marriage.” Cheney and her partner can make all the contracts that want and as long as those contracts are delivered upon without dispute all is well and good.
But as soon as someone challenges any of the rights or arrangements represented in those contracts in a Virginia state court of law, those courts, based on the new constitution (which trumps all state precedent and case law) have to rule against.
The idealistic view expressed by the AG depends upon all lawyers choosing not to use this amendment’s language in any lawsuit against any unmarried couple. A lawyer’s job is to win the case for his/her client. Given that mandate, do you really think any competent, self-respecting attorney would willingly lose a case for his/her client to avoid using this escape clause? Given the number of annual tort suits litigated on everything from product liability to insurance coverage to divorce to probate, AG McDonnell’s silver lining expectations will not materialize.
So let’s say Mary Cheney is the biological mother and a few years from now dies. Her will grants custody of the child to her partner. But then Dick and Lynne step in and decide they want custody and contest it. Avoiding the issue of any unfitness on the part of her partner, will the biological grandparents win in Virginia? Would they have prior to Amendment 1?
Judge Smails,
The grandparents would win. Using a legal document to ensure that custody of a child will be given to one’s unmarried partner would be a way of providing a benfit of marriage. So this kid would be screwed in the event of Mary Cheney’s death.
Cheney’s partner, whom the child will be emotionally attached to as a parent, will have no legal right to involvement with the child’s life. Such is the fruit of modern so-called ‘conservatism.’ Modern social conservatism, as demonstrated here, is essentially anti-family.
Well, that sucks.
Waldo has chosen an unfortunate example in Mary Cheney, because many of the Amendment’s supporters would agree with such an outcome because they believe that it is morally wrong for Cheney and her wife to have an intimate relationship to begin with.
However, those rights and benefits of marriage are mirrored in other types of family arrangements and partnerships as well. The same sad outcome would happen in a step-family: A wife would not necessarily be allowed parental rights over her unadopted step-children in the event of her husband’s death regardless of how long she has been their mother. Her guardianship could be successfully challenged by the deceased husband’s parents, or the natural mother, or the natural mother’s parents. An unmarried hetero couple that has been living together for 20 years could find themselves taken to court by insurance companies using the clause to deny coverage for one or the other individual, because one of the benefits of marriage is the implied claim as a dependent of your spouse. Limited business partnerships created for the sake of holding or controlling the distribution of assets are also called into question, because another right of marriage is the right to inherit your spouse’s assets.
IMO, the people who will suffer the most are the elderly. In our modern, world-shrinking society, it is common for adult children to live in a different city (or state) than their aging parents. Those elderly, especially if widowed, are frequently watched over and helped by extended family members, neighbors, or even paid caretakers who live close by. Sometimes they give a nephew co-signing rights to pay the bills, etc. Sometimes they list a friend as an emergency contact and executor of a living will/DNR order. Sometimes they will ask someone to live in with them, promising a share in the property for daily assistance meeting their needs. This Amendment means that any contracts, trusts, or will agreements they arrange to get that assistance and/or compensate their caretakers can be challenged by their absent children–and the children would likely win.
The outcome Jack describes is at least what the architects of Amendment 1 intended. Bob Marshall admitted that the 2005 Marriage Affirmation Act was divised for the purpose of encouraging a test case, and the case they got (filed the day the law went into effect) was Miller-Jenkins. The reason that the Court of Appeals vacated the circuit court decision that declared Janet Miller-Jenkins and her daughter to be legal strangers is a very narrow ruling based on the fact that Lisa Miller-Jenkins filed her original motion in a Vermont court – i.e., it was a very flawed case for the purposes of testing Mr. Marshall’s public policy intent.
The intention, despite any good words from the AG, is to have the language of Amendment 1 interpreted as broadly as possible. This is not news – all you need to do is look at the experience in other states. Why would the behavior of lawyers and anti-gay activists in Virginia be any different?
It is disingenuous to claim that Amendment 1 won’t invalidate a contractual arrangement between people such as Mary Cheney and her partner; if that was not the purpose, then what on earth was that second paragraph intended to do?
That is the crux of it. Thank you for that, Julie.
It’s interesting that people would bring up the name Bob Marshall when discussing Mary Cheney’s baby. Especially in light of his newest initiative concerning re-animating Virginia’s adultery laws.
Not that I’m implying anything.
JP, you are tempting me to relocate to Loudoun in order to run a campaign against him.
I wonder if Mary was artifically inseminated in the state of Virginia. The article does not say.
If Bob Marshall had his way, that would be illegal in this state as well. (HB 187, Jan. 2, 2006)
TLP – go ahead and relocate. We got your back :)
Thank you Julie for saying partner and not wife. Calling Mary’s partner her wife is just using language dishonestly.
As for these forboding predictions about the marriage amendment, I’ve heard scary stories about lots of things, very little of which ever happened. Let’s wait and see. I actually suspect that what will happen is exactly nothing. The law in Virginia as it has always been will just not be changed by a trial judge. And wasn’t that the point?
“Wife” is the term that Mrs. Cheney uses. And it’s in no way “using language dishonestly.” The phrase that you’re looking for there is “something I don’t like.”
Make no mistake, Bill, I respect Mary Cheney’s use of the term “wife”, and I applaud her dedication to monogamy and family values.
Although she probably has too much filial piety to do so, it would be fun if Ms. Cheney challenged Amendment 1 in federal court. It would be “Cheney, Poe, and Baby Doe v. The Commonwealth of Virginia.” Sorry.
First, being gay and having been in a committed, monogamous relationship for almost as long as Ms. Cheney, the term “wife” with relation to Ms. Poe grates, for the simple reason than that there hasn’t been (to my knowledge) any attempt to formalize the relationship. While there are no means in Virginia for such formalization, such means do exist within the wide world, and it is to my mind as inaccurate for a gay couple to lay claim to marriage when none has been performed (as opposed to none being recognized) as it would be for two heterosexuals to do so where there is no common law marriage. This is not an issue of sexuality or politics, in my mind; it’s one of a missing affirmative act. One simply cannot rest on one’s laurels and consider oneself married without having done some affirmative thing (whether recognized in law or not) to manifest that relationship. If Ms. Cheney and Ms. Poe have done some such thing of which I am ignorant, I retract this paragraph.
Second, Jack and Julie and those between and after are wrong about the nomination of a testamentary guardian for their child. The Virginia statute is Va. Code Ann. Sec. 31-2, and it allows every parent to appoint a testamentary guardian. There is the obvious exception that no testamentary guardian shall have custody of the child while either parent survives and the surviving parent is fit to have custody. Thus, the relationship between Ms. Cheney and her child, and the guardian Ms. Cheney may appoint in her will, is a relationship arising from Ms. Cheney’s parenthood, not the marriage (vel non) between Ms. Cheney and Ms. Poe. In short, the appointment of a testamentary guardian for one’s child is a benefit conferred by statute independent from marriage. Unmarried heterosexuals can do the same thing.
The benefit of marriage, in fact, is that a spouse becomes the guardian of the child upon his spouse’s death, without the need for an appointment by will, by operation of Va. Code Ann. Sec. 31-1. That is the benefit that the amendment would deny unmarried couples–to have an automatic guardian for one’s child without appointment in a will. If Ms. Cheney were, in some way, to attempt to arrange to have Ms. Poe become guardian of the child by any means other than appointment by will (e.g., by contract), the amendment would operate to bar that arrangement. But appointment of a guardian in one’s will is an act separate and independent from a marriage, and therefore cannot be a benefit of one.
In fact, I would argue (were I invited to do so) that Va. Code Ann. Sec. 31-4 deprives every court in Virginia of jurisdiction to appoint a guardian where the guardian a qualified guardian has been appointed by the will of the last surviving natural parent. (“The circuit court or the circuit court clerk . . . may appoint a guardian for the person of the minor UNLESS he has a guardian appointed as aforesaid by his father or mother.”) (emphasis added)
There is, however, the outstanding question of Ms. Cheney’s child’s biological father. If he currently lives, and remains alive when Ms. Cheney dies, I am too unpracticed in family law to predict what events may then occur with respect to Ms. Cheney’s (presumed) testamentary appointment of Ms. Poe as the child’s guardian.
Errata: There should be an “I find that” between “Cheney” and “the term ‘wife'” in the first sentence of the first paragraph. The words “the guardian” in the first sentence of the fourth paragraph should not appear there.