Feeling Unwelcome, Some Gays Vacate Virginia
November Ballot Ban Helps Fuel Migration

By Kirstin Downey
Washington Post Staff Writer
Monday, August 7, 2006

Edel Quinones lived in Virginia for 10 years, but early this year, he sold his Arlington townhouse to move to the District.

"It felt like I wasn't welcome anymore," he said.

Quinones and his partner of three years are joining a migration of gay people out of Virginia in the face of recent legislative action they perceive as hostile.

Twenty states have amended their constitution to ban same-sex marriage since 2004. Virginia state legislators passed a law two years ago that prohibits "civil unions, partnership contracts or other arrangements between persons of the same sex purporting to bestow the privileges or obligations of marriage." A proposed constitutional amendment, which will go to voters in November, excludes any "unmarried individuals" from "union, partnership or other legal status similar to marriage."

Many gay people in Virginia and some family-law attorneys say they worry that the state law and proposed amendment are more far-reaching than simple bans on gay marriage -- that the measures could threaten the legal viability of the contracts used by gay couples to share ownership of property and businesses.

The exact effects are unclear, and the 2004 law remains untested, but some gays say they fear the laws could affect their ability to own homes together; to draft powers of attorney, adoption papers or wills; or to arrange for hospital visitation or health surrogacy.

Married people get these rights automatically through long-established common law; gay people use legal documents to ensure they can leave their property at death to their partner or allow their partner, rather than the patient's birth family, to make end-of-life decisions for them. Some gay people worry that hostile family members could use the language in the laws to seize their possessions or take custody of their children if they could prove the couple had a relationship that illegally approximated a marriage.

Proponents say the measures simply reaffirm existing laws.

State Del. Adam P. Ebbin (D-Alexandria), who is gay, circulated a Washington Post inquiry seeking people willing to be interviewed on the record about their decisions to move out of Virginia. Two dozen responded; 10 others said they were waiting for the November elections to decide.

Many have moved to the District, but no estimates are available. It is illegal in the District to discriminate on the basis of sexual orientation, and real estate agents and developers say it would be improper to compile such numbers.

"Virginia is becoming not gay-friendly," said District-based real estate agent Jeff Lockard, who said he has many gay clients. "What we are seeing is that same-sex couples -- if they can afford it -- their preference is to be in the city. It's something I've seen more and more in the past year and a half."

Reston-based real estate agent Evan Johnson, owner of http://mygayagent.com , said that when he started in business seven years ago, his Virginia clients, most of whom are gay, all bought other homes in Virginia when they sold their homes, unless they were being transferred. But in the past year and a half, of 51 transactions involving gay clients who lived in Virginia, 26 moved out, most to the District or Maryland, he said.

Johnson said clients moved even though it is more expensive to live in the District or Maryland, where taxes are higher than in Virginia. One former Virginian who moved to the District was shocked to face a $14,000 recordation tax on the purchase of a $650,000 condo; the same tax in Virginia would have been less than $1,000, Johnson said. The buyer proceeded with the sale anyway.

Of course, some move because they want the excitement of city life, and the District is viewed as a more appealing place to live than in the past. But others say they want to avoid possible legal problems, particularly if they want to have kids. In 2002, for example, an Alexandria family court ruled that a father would lose custody of his son unless the father's male partner, who had lived with them for five years, moved out. In 2004, a Winchester judge ruled that the female partner of a woman who had borne a child in 2004, whom the child had called "mama," had no legal custody rights and that the woman who gave birth was the "sole parent."

Art director Beth Lower and her partner, Kati Towle, owned a home in Arlington but didn't know about the Virginia laws until they went to a lawyer to draw up a will and adoption paperwork for Lower after Towle became pregnant. "The lawyer said, 'Don't have that baby in Virginia,' " recalled Lower, who works for a trade association. "We weren't really into Virginia politics, so we didn't really know about any laws that might be working against us."

Towle, a school teacher in Alexandria, delivered the baby at George Washington University Hospital in the District, and the three moved to Silver Spring.

David Lampo, vice president of the Log Cabin Republican Club of Virginia, said he worries that gay flight would give anti-gay activists a victory in Virginia.

Victoria Cobb, executive director of the Family Foundation, the Richmond-based group that backed the 2004 law and the proposed constitutional amendment, said the goal isn't to drive out gay people. She said "extreme homosexual organizations" might be trying to frighten their members by circulating false information about the amendment. She said it wouldn't add restrictions on gays but would simply underscore the ways their relationships are already restricted.

"I think it's extremely sad they would leave because of something they were never allowed to do anyway," said Cobb, who said she believed gays could go to court to defend themselves if a partner's family members challenged their right to own property in common, arrange powers of attorney or visit each other in the hospital.

Charlottesville lawyer Robert Brame, who has served on the board of Cobb's group, said he considered it unlikely that family members would successfully use the law or amendment to obtain ownership of the goods left to a surviving gay partner or to block hospital visitation. "You might make any argument you'd make, but I don't think a judge would be impressed by it," he said.

Nancy Polikoff, a professor of family law at American University law school, who is gay and lives in the District, disagrees. She said she believes the agreements that gay couples in Virginia use to protect their assets are "vulnerable to legal challenge."

She said she tells gay people to move out of Virginia, especially if they are parents or want to become parents. "The bottom line is . . . who wants to be a test case?"

Emmanuel Vaughan, who writes customer-service training scripts, is another transplant. He moved to a place in the District in October, putting his Arlington house up for sale. He said he moved because he became angry over what the state legislature was doing, and he worried that he and his partner, Drew Lent, an international trainer, could be in legal jeopardy.

"As an African-American, having grown up during the Civil Rights movement in Birmingham, Ala., I am not willing to have my rights taken away from me by ignorant, religious zealots who don't respect the constitutional understanding of separation of Church and State when scripting laws," he wrote in an e-mail. "It was apparent to me that things weren't getting any better, but worse. Why should I continue to pay taxes to support such a hateful government?"

Byron Knight, 65, moved to Richmond in the 1960s, working as a rehabilitation counselor. But after the 2004 bill passed, he and his partner, Edward Weston, 54, decided to give up their circle of friends, their community involvement and their bungalow. But where to go?

"We considered leaving the country," Knight said. "We visited Mexico, and we talked to folks in Toronto."

But they decided they didn't want to move that far from Knight's grandson, 3, who lives in Virginia. Weston sought a job in Wilmington, Del., and they moved there.

The adjustment to Delaware wasn't easy, Knight said. He was lonely and depressed. Then he thought of how much he enjoyed children and decided to see whether he could be approved as a foster parent. He went into the office with trepidation, worried his application might be considered offensive.

"I went there tentatively, and the woman bowled me over when she said, 'We'd love it,' " he recalled. "I went home nearly in disbelief, and I said, 'We're not in Virginia anymore, Toto.' "

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