Some Republicans, including, sadly, all the presidential candidates, seem to think gay couples deserve no more protection than they can cobble together with private legal contracts. In Virginia, of course, even such contracts may be invalid. But they are also very perilous documents, especially in the kind of emergencies we all sometimes face. Here's a comment on Volokh from someone who knows just how tough it can be:
Even making the legal documents easier doesn't solve much. In my current state (Maryland), it's pretty easy to fill out an advance directive with a durable power of attorney for health care decisions - no notarization required, just a form you can get from the Attorney General's website. This doesn't stop hospitals from not only demanding to see the document before so much as permitting someone to visit his same sex partner, but from refusing to recognize it until their attorney and God knows who else reviews and verifies it to their satisfaction. One overcautious or homophobic nurse can seriously screw someone over even when they've taken all the steps they're supposed to take to ensure that their partner can visit and make decisions for them when they're incapacitated. And if a family member decides to make trouble, forget it.
By contrast, when I was seriously injured a few months into my marriage, all my husband had to say was "I'm her husband" and no one questioned his right to be there or to make decisions while I was unconscious. No one asked for proof. And we have different last names and (at the time) separate health insurance. "Husband" and "wife" are magic words in our society - all the well crafted legal documents in the world can't open the doors those simple syllables can.
The decision of any hostile family member to challenge the legal rights of a same-sex partner can be particularly brutal.
I remember a story told by a friend during the plague years. He was visiting a dying friend in hospital and a couple of beds down the ward from his friend, the curtains were drawn around a patient. From behind the curtains, he could hear a man softly singing a show-tune. "Well, at least that guy's keeping his spirits up," my friend remarked. "Actually," his dying friend replied, "the man in that bed died this morning and was taken away by his family. That's his boyfriend. The family won't let him go to the funeral or ever see his spouse's body again. They've kicked him out of their apartment. It wasn't his name on the lease. So he's just sitting there, singing their favorite song to an empty bed. It's the last time he'll get that close to his husband. The nurses didn't have the heart to tell him to leave yet. He's been there for hours."
You want to know why some of us feel so strongly about this? Remember that scene. We will - for ever. Civil marriage rights are indispensable. Gay people are second-class citizens and second-class human beings until we have them.