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Couple feels forced to leave

January 9, 2005 1:09 am

Editor's note: The last names of the couple in this article are being withheld to protect them from repercussions.

Nearly 40 years ago, a Fredericksburg-area couple decided to share their hearts. Each knew they'd found the person they wanted to spend the rest of their lives with.

They remember the date--Jan. 14, 1966.

They remember their courtship--early morning bike rides and hours-long telephone conversations.

They bought a house and raised a child.

They worked hard and paid their taxes.

They nurtured friendships and went to church.

They never wanted to get married.

Never wanted to change the world.

Never wanted anything more than the gift of taking care of each other as they grew old together.

But on July 1, 2004, a law went into effect that made them fear they couldn't do that.

At least not in Virginia.

Because they're gay.

Barbara, 65, and Tibby, 66, met in high school in Salt Lake City, Utah. Though they were very different, a friendship formed.

After high school, they lost touch. Tibby got married and became a mother. Barbara moved around before going back to Salt Lake City.

After returning to Utah, Barbara began an art career and invited Tibby to see her work.

Their friendship grew. They fell in love.

Barbara and Tibby tell their story in a documentary by Fredericksburg artist Suzanne Moe.

"I never really loved the man I married," Tibby said in the film. "I know that now. I knew I was attracted to women. But what do you do about it?"

Tibby couldn't live a lie and sought a divorce from her husband.

Church leaders in Utah excommunicated her and worked with her former husband to take her daughter, Holly, from her. Instead of getting into a court battle, Tibby let Holly stay in Utah with her father.

Barbara, Tibby and her son, James, made their way to Virginia because a friend here knew a realt estate agent who could help them find a place to live.

Tibby became a teacher in Fairfax County; Barbara continued her art and became a mental health professional in the Fredericksburg area.

No one knew about their relationship.

Tibby didn't want to live near where she taught for fear a student or parent would see her in the grocery store with Barbara. Barbara stayed home when there were events at James' school.

"You never give somebody the stick to beat you with," Tibby explained in the film.

For more than three decades, the couple has lived quietly in the Fredericksburg area. Over time they told close friends and members of their church that they were a couple.

That quiet life changed on April 13, 2001. Barbara had been feeling her heartbeat in her ear. Tests revealed a brain aneurysm.

Doctors could operate, but because of the aneurysm's location deep inside her brain, the surgery could leave her with neurological problems, deafness or blindness, or drastic changes in her personality.

"There is almost no chance I would not come out of the surgery a changed person," Barbara said.

She has opted not to have the operation.

The aneurysm doesn't cause any daily symptoms.

"If symptoms happen," she said, "it's very likely the end."

Like many same-sex couples, Barbara and Tibby had taken legal steps to ensure the other would always be taken care of.

They bought a house together and shared bank accounts. They drew up wills, powers of attorney and medical directives that would give one the authority to make life-or-death decisions if the other became unable to do so.

They knew firsthand what happens without such steps.

"When Barb had a hysterectomy, they wouldn't let me in the room because I wasn't family," Tibby said in the documentary. "Having the power to handle each other's affairs, it's vital."

Because of that, the pair say the Virginia law is "beyond what we can endure."

"I truly don't know why people hate us," Barbara said in the film. "The day it became law, I said to Tibby, 'We're leaving.'"

Whether the legal steps Barbara and Tibby took to protect each other are still valid in Virginia is the source of debate.

In 1997, the Virginia General Assembly passed the "Affirmation of Marriage Act," prohibiting marriage between same-sex couples. Code Section 20-45.2 also said that any same-sex marriage entered into in another jurisdiction was voided in Virginia.

During the 2004 General Assembly session, Del. Robert Marshall, R-Prince William County, introduced House Bill 751, intending, he said, to address other manners in which same-sex couples attempt to secure legal recognition of their relationships.

The legislation reads: "A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable."

The bill was controversial, and for a time put Virginia at the forefront of the national battle over civil unions and gay marriage.

Gov. Mark Warner is opposed to same-sex marriage, but he also opposed parts of HB 751. He asked the legislature to amend it.

"I have grave doubts about the constitutionality of this broad wording, and I believe that it could have a host of unintended consequences," Warner said in a statement issued last year. "I believe it would be regrettable and wrong if Virginia were to go further than any other state in its efforts to restrict the rights of people to enter into legal relationships."

The General Assembly rejected Warner's amendments, passing the legislation with a veto-proof two-thirds majority. The bill became law, Virginia Code Section 20-45.3, without Warner's signature.

Virginia Attorney General Jerry Kilgore defended the law's constitutionality and its language in a letter to Marshall. He wrote that his office is prepared to defend the legislation as passed.

"House Bill 751 provides a needed safeguard for the institution of marriage while not depriving any individual rights currently available to all citizens," Kilgore wrote in the letter, released by his office.

Concerns brought by opponents are not valid, Kilgore wrote.

"The purpose of this legislation is not to prohibit business partnership agreements, medical directives, joint bank accounts, or any other rights or privileges not exclusive to the institution of marriage," he wrote.

Some legal scholars disagree, saying the law is so broadly worded that it could be interpreted to prevent those arrangements, not just between same-sex couples, but between any two people of the same sex.

Daniel Ortiz, a professor of law at the University of Virginia, teaches constitutional law, administrative law, electoral law, civil procedure, and legal theory. He wrote a letter to Gov. Warner expressing his personal concerns about the bill's broad wording.

In an interview last week, he called the legislation "outrageous."

"It isn't limited in focus the way all statutes before it had been limited," Ortiz said. "If it means what it says, it reaches everything."

Ortiz said the law's failure to distinguish between privileges and obligations exclusive to marriage and those that are not could prohibit arrangements such as medical directives and business partnerships. It also could prohibit arrangements between a grandmother and granddaughter, simply because they are of the same gender.

"Marshall said this was not what was intended," Ortiz said. "And I don't think he wanted to start gumming up the way traditional families handle their affairs. But in the interest of reaching every possible thing that could dignify a same-sex relationship, I don't think he was aware of how broad a brush he was painting with."

Barbara and Tibby can't wait around to find out who's right.

Barbara and Tibby have not been activists in the gay-rights movement.

"They simply want the ability to grow old together, to take care of the one they love," said Moe, who made the documentary.

"Barbara and Tibby: A Love Story in the Face of Hate," was screened before an invitation-only audience in Fredericksburg in December.

This week, a screening is planned during a Lobbying Day at the General Assembly, hosted by Equality Virginia, the state's leading gay-rights group.

Moe has been friends with the couple for years. Barbara is a fellow artist; Tibby a vibrant and active member of her church. She learned of the couple's decision to leave Virginia in an e-mail.

"I was so devastated," she said. "I still can remember how reading those words stopped my breath."

Moe printed the e-mail and carried it in her pocket for two days, then decided to do something.

She had no experience in filmmaking, but thought the documentary would be a way to explain to Barbara and Tibby's friends at church why they had to leave.

Many weren't aware of the law, and some who were didn't fully understand its impact on their friends' lives.

But convincing Barbara and Tibby to be interviewed was a challenge.

"I thought, we have nothing to say," Tibby said in an interview. "We've never been activists. No one cares what our lives have been like."

Finally they agreed. The result is a 38-minute documentary, including an interview; songs from Moe's partner, local blues musician Gaye Adegbalola; pictures of the family; and legal information.

Moe said the documentary is not about gay rights, but about human rights.

"We're losing members of the community who we love and need, because they're being persecuted," Moe said. "This law is so far-reaching. It's not just the gay community. We all have a connection with each other."

Tibby is retired, but in addition to leaving her home, Barbara is losing her livelihood and her clients are losing their therapist.

"That loss is incalculable," Tibby said. "She could have practiced here 10 more years if she wanted to. You cannot re-create those kinds of contacts."

Marshall said in an interview last week that he introduced his legislation last year in response to court rulings.

In 2003, a Supreme Court ruling in a Texas case said state anti-sodomy laws were unconstitutional. While many state legislatures removed anti-sodomy laws from their books, Virginia did not.

Also that year, the Massachusetts Supreme Court said denying marriage to same-sex couples violated that state's constitution.

Marshall said Virginia's 1997 "Affirmation of Marriage Act" did not go far enough in preventing legal recognition of same-sex relationships.

"Lambda Legal [which fights for the civil rights of the homosexual community] says a civil union is marriage by another name," he said. "I see no moral justification to legally recognize a relationship predicated on sodomy. Period."

Marshall said that without his legislation, Virginia might have been forced to recognize domestic partnerships or civil unions entered into by couples in other states.

"We do not need, in Virginia, out-of-state judges dictating to the commonwealth who is married or who should be recognized as if they were married," Marshall said.

The Norfolk-based Family Foundation of Virginia was an active and vocal supporter of HB 751 and Marshall.

Executive Director Victoria Cobb said in an interview last week that the legislation was necessary "because the issue of marriage is under the potential of being decided by activist judges."

"It is necessary to do whatever possible to ensure the Code of Virginia and the Constitution of Virginia protect traditional marriage," she said. "Given what we've seen around the country, we felt HB 751 was a necessary step."

Cobb said gay-rights groups are exaggerating when they say the law could have far-reaching consequences.

"The argument that contracts will be voided by this law is simply a scare tactic," she said.

In an article in The Virginian-Pilot, Marshall said his legislation is targeted only at privileges and obligations exclusive to marriage.

"You could designate Saddam Hussein as your durable power of attorney if you want to," he said. "You can leave everything in your will to your parrot."

U.Va.'s Ortiz said the state's 1997 legislation already protected traditional marriage, making Marshall's legislation unnecessary.

"It's a way of creating political hay," he said. "The 'problem' [of same-sex marriage] was taken care of, but if you say, 'No, there's another danger and we need to address it,' you get credit with your constituents. That's exactly what was going on here."

Tibby agreed.

"It's a political thing," Tibby said in the film. "We are easy to scapegoat. We're easy for people to say 'they are immoral.' Well I'll tell you, I'm the most boringly moral person."

If the law was as bad as gay-rights groups say, Cobb argued, "plaintiffs would be lining up at the courthouse door."

"We have yet to see that happen," she said, "because no rights have been violated."

Barbara and Tibby have sold their house. In April, they plan to move to Maryland, where they are certain the legal steps they've taken will protect both of them.

It's also where Tibby's daughter lives--the daughter she was forced to leave behind in Utah. Once Holly was grown, they re-established a relationship. Tibby and Barbara are now proud grandmothers, and both remain close to Tibby's son, James.

"We're trying to be excited about [moving]," Tibby said in an interview. "It's going to be easier for me to live closer to my daughter and granddaughter. I won't be gone overnight as much."

"But other than that," Barbara added, "the whole thing has been a nightmare."

Del. Mitch Van Yahres, D-Charlottesville, has introduced legislation for the 2005 General Assembly session, which begins tomorrow. It would repeal the law enacted last year.

Van Yahres said he thinks the Virginia law is too far-reaching, and that even President Bush has said same-sex couples should be able to enter into civil unions.

"Churches have the right to deal with it on their own levels," Van Yahres said.

Dyana Mason, executive director of Equality Virginia, said her group will work to promote Van Yahres' bill.

"Anything is possible in the General Assembly," she said. "But it's going to be a challenge.

"A lot [of legislators] have said they didn't realize it was so broadly written. It's a horribly ambiguous, broadly written law."

Whether the law is repealed or not, Barbara and Tibby have lost hope in their adopted home state.

"I wouldn't want to stay. The law has already accomplished what it set out to do--to squash and to hurt us," Barbara said in an interview.

"The law says, 'We don't care who you are, if you're hurt, if your family is hurt,'" Tibby said. "It's a feeling of unbelievable loss, of victimization."

As a same-sex couple, Barbara and Tibby said there are certain things they just learned to accept during their life together.

They accepted that they had to draw up legal documents to give them some of the protections that heterosexual couples gain by getting married.

They accepted that, in some situations, they had to hide their relationship to avoid discrimination and danger.

They accepted that some people who don't even know them would hate them, simply because of who they love.

"There are so many things you just get used to," Barbara said. "But then this law comes down and just when you think you're hammered down as far as you can go, they give you one last, really good whack."

Equality Virginia's Mason said Barbara and Tibby's story, and the documentary that tells it, are important. It will help people realize the personal impact of the law, and that it has consequences that reach beyond the gay community.

"Laws that attempt to take away more rights from gay and lesbian couples are hurting other people, too," she said. "This is not an exercise in hot-button politics; it's affecting real families."

To reach LAURA L. HUTCHISON: 540/374-5485 lhutchison@freelancestar.com