The Virginia Court of Appeals today ruled that two people of the same sex cohabiting is in some regards analogous to marriage, the AP reports.
In Stroud v. Stroud, Judges Benton, Haley, and Fitzpatrick overturned Circuit Judge M. Langhorne Keith’s ruling that Debra Stroud did not violate the terms of her divorce settlement with her ex-husband, Joseph Stroud, by living in a committed, long-term, sexual relationship with another woman. Though Stroud and her partner share a bed, have exchanged rings, go to church together, regard one another has wives, and jointly act as parents to Stroud’s three children, Judge Langhorne had said that such behavior does not qualify as “cohabitation with any person…in a situation analogous to marriage,” because, he argued, a same-sex couple can never be “analogous to marriage.” The circuit court unanimously overturned Langhorne’s decision, finding that the relationship is quite clearly analogous to marriage.
The basis of that decision is 2000’s Pellegrin v. Pellegrin‘s four-point system for determining what constitutes a marriage: Common residence, intimate or romantic involvement, the provision of financial support, and duration and continuity of the relationship and other indicia of permanency. The appeals court disagreed with the trial court’s reliance on a 1994 opinion by then-attorney general Jim Gilmore who claimed that domestic abuse laws don’t apply to same-sex couples, finding that it was both a) wrong and b) not binding on the court, anyhow.
My favorite bit is where the court devotes over a page to analyzing the meaning of the phrase “analogous to marriage,” pointing out that they’re basing their decision on “the factual relationship of wife and Robyn,” what with “analogous” not meaning “identical” but instead, according to Black’s Law Dictionary, “not identical.”
Contra to this blog entry’s headline, the court’s ruling applies only to the case at hand, and presumably its precedent will be limited to divorce law. But this is, I forecast, how same-sex unions will become legal in Virginia. Every time that the Virginia courts have to review a specific aspect of contract law between two parties that involves a same-sex relationship, the court 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. It’s like we have our very own TRAP laws, but for gay people. Isn’t that nice?
No matter how the court ruled on this, the “family” groups across the state were bound to freak out. I eagerly await news of exploding heads ’round the commonwealth.
It’s difficult to undestand what the big deal is, Waldo, when you misrepresent the facts in order to advance your pro-perversion agenda.
This case wasn’t about whether someone “violate[e] the terms of her divorce settlement with her ex-husband … by living in a committed, long-term, sexual relationship with another woman,” it was about whether an ex-husband was privileged to terminate spousal support because his ex-wife was cohabitating with another individual. The activist judge here was the trial court judge in Fairfax County.
And BTW, the Court only made a ruling in the context of contracts. To suggest that “this is, … how same-sex unions will become legal in Virginia” is simply wishful thinking on your part.
Here is the family foundation’s responce (Doesn’t look like heads are exploding to me):
Victoria Cobb, President
Tuesday, February 27, 2007
Information Alert: VA Court affirms marriage amendment proponents
The Virginia Court of Appeals today issued an opinion that reaffirms arguments made by proponents of the Virginia Marriage Amendment, including Attorney General Bob McDonnell, that the marriage amendment does not affect private contract rights or domestic violence laws.
Unfortunately, opponents to marriage and some in the media may interpret this case completely incorrectly. First reports would lead some to believe that the decision was a victory for those who wish to redefine marriage and that the court recognized same-sex couples. Nothing could be further from the truth.
Basically, the court ruled that a “property settlement agreement” entered into by a divorced couple is not affected by the marriage amendment or Virginia’s public policy that does not recognize same-sex relationships. The case stems from a divorced couple whose divorce “contract” included a provision stating that spousal support would terminate if the person receiving the support cohabitated “with any person in a relationship analogous to marriage.”
The ex-husband had sued to cease having to pay support because the ex-wife entered into a lesbian relationship and was cohabitating with her new “partner.” The court ruled that indeed, the provision of the contract should stand. In doing so, the court clearly stated, “…in this case we are concerned with a contract between a man and a woman, husband and wife, not a statute defining or to be interpreted as defining “cohabitation,” …. As stated above, our holding in this case explicitly does not grant any legal status to the relationship between” the lesbian couple.
In his official opinion regarding the marriage amendment Attorney General McDonnell argued that the marriage amendment would not affect just such a contract. Also, because Virginia law recognizes cohabitation in its domestic violence laws, he argued that those laws would still apply and that the marriage amendment does not remove those protections.
Today’s court decision simply affirms what the Attorney General argued, and what The Family Foundation argued, last fall as opponents to the amendment assailed it and claimed “unintended consequences.”
Regardless of what you read in tomorrow’s newspapers or hear on the news, this court case is not a blow to Virginia’s marriage amendment or to our long-standing protections of marriage. The decision of 1.3 million voters still stands.
Those who wish to redefine marriage are grasping at straws if they interpret this case as a victory. But that shouldn’t be a surprise since they haven’t seemed to be able to accept the overwhelming defeat handed them by the people of Virginia this past November.
Note that the court recognized this was “analogous to marriage” so that the cohabiting woman would lose her support payments. It would seem that while same sex couples are denied the benefits of marriage in this Commonweath,they won’t be denied the punitive provisions of divorce laws under this decision. Go figure.
Did you fail to read the entire entry? You didn’t seem to get the part of the news story where Waldo admitted that this probably only pertains to divorce law, and that he forecasts that things like this will cause same-sex unions to eventually become legal, through piecemeal legal battles. You know, in essence admitting what you’re telling him in your last sentence.
Furthermore, I’d appreciate it very much if you could give me a solid and unambiguous definition of what makes a judge “activist,” why an activist judiciary is harmful to our country (if you believe that it is), and how your definition of activism applies to this case. Or some subset of these, based on your time. I’m honestly interested to hear, as the way the term is bandied about, I generally convert “activist judge” to “judge who doesn’t share my interpretation of the law” in my head.
How disappointingly un-exploding-y.
First, I don’t think anything has ever exploded at the Family Foundation, if you catch my drift.
Second, based purely on what I’ve read, you understand, perversion is kinda fun, ya know?
Bravo.
Exploding heads are boring, while the grimly determined contortions shared here provide hours of entertainment.
Waldo,
An interesting decision. My first thought was that this decision was, in part, vindication for the AG. This was a private contract that was not abrogated by the passage of the Amendment. It is also, it seems to me, a partial victory for gay rights as well, despite the bad outcome for this particular litigant.
Interestingly, the author, Judge Haley, was the lawschool classmate of Speaker Howell who was elected to the court at the expense of Judge Ney from Fairfax (and in violation of the informal agreement to have an appeals court judge from every congressional district).
The Family Foundation put out the best spin it could, but it must have been dissatisfied with the result. I think you are correct, Waldo, when you say that this decision points the way for the future for gay rights.
If nothing else, the decision interpreted that grotesque AG opinion by Gilmore out of existence. As I understand it, the domestic law was written to allow it to extend to same-sex couples, but before AG’s office had an opportunity to interpret it that way, Gilmore was already in office.
Mr. Young, not every decision falls into an “activist” or “non-activist” category. Occasionally, reasonable minds can differ as to the interpretation of the law. That concept is easier to accept for those of us that allow ourselves to see shades between the black and white.
I’ll be interested to see what more blogging attorneys have to say about this. Hopefully Steve Minor will weigh in.
I seem to recall something earlier from AG McDonnell that essentially said that the domestic violence laws did, in fact, apply to same-sex partners, invalidating the earlier Gilmore opinion. Can’t find the reference right this moment (I believe it was in some instructions) but will pass it on if I locate it.
A fun exercise for someone with too much time on their hands would be to write the Some Families Foundation alert that would have appeared in the case of the opposite decision.
The marriage amendment, Art. I, section 15-A of the Constitution is not mentioned in the opinion, probably because the case predates the effective date of the amendment.
The double irony is that (a) the contract at issue here is a contract between a man and a woman, and (b) the person in the same-sex relationship was the one trying to use the statutory same-sex marriage ban as a shield against the enforcement of the contract. The court ruled the contract between the man and the woman is enforceable and the same-sex marriage ban is irrelevant. Probably that is a sound and unremarkable result, so much so that it is difficult to see how it would contribute to the evolution of the law toward the legal recognition of same-sex couples’ rights which Waldo has been predicting for some time.
When someone like Robyn sues claiming some kind of common law entitled to someone like Ms. Stroud’s stuff, that’s when heads will explode.
Russ Potts, a few moments ago: the Family Foundation “is one of the most overrated, fraudulent” organizations he’s ever dealt with.
His retirement strikes me as a serious loss for the VA GOP.