Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and 

Kinser, JJ., and Compton, Senior Justice 

ARLINGTON COUNTY, ET AL. 

 OPINION BY 

v. Record No. 991374 JUSTICE LAWRENCE L. KOONTZ, JR. 

 April 21, 2000 

ANDREW WHITE, ET AL. 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 In this appeal, we consider whether a local governing 

body acted ultra vires in extending coverage under its 

self-funded health insurance benefits plan to unmarried 

“domestic partners” of its employees. 

 On March 12, 1998, Andrew White, Diana White, and 

Wendell Brown, residents and taxpayers of Arlington County 

(the Taxpayers), filed a bill of complaint in the trial 

court against Arlington County and its County Board 

(collectively, the County). The Taxpayers sought a 

declaration that the County lacked the authority to extend 

coverage to the newly defined category of domestic partners 

under its self-funded health insurance benefits plan. The 

Taxpayers also sought to enjoin the County from 

implementing the provision of benefits to domestic 

partners. 

 The parties filed cross-motions for summary judgment. 

Holding that “Arlington County’s coverage for domestic 

partners in its self-funded health benefit plan for County 
employees violates the Dillon Rule,”1 the trial court 

granted the Taxpayers’ motion for summary judgment and 

denied the County’s motion. We awarded the County this 

appeal. 

 The record shows that in an Employee Relations 

Benefits Newsletter, issued in May 1997, the County 

announced that, effective July 1, 1997, “[t]he definition 

of eligible dependents has been expanded under the 

[County’s self-funded] health plan” to allow “for coverage 

of one adult dependent, who can be [an employee’s] spouse, 

domestic partner, or other adult who is claimed as a 

dependent on [the employee’s] federal income tax return.” 

The Newsletter listed eight criteria in defining an “adult 

dependent” as “[t]he domestic partner . . . who” 

- has resided with the employee for a 1 year period; 

- shares with the employee the common necessities of 

life and basic living expenses; 

- is financially interdependent with the employee; 

- is involved with the employee in a mutually 

exclusive relationship of support and commitment; 

- is not related by blood to the employee; 

- is not married to anyone; 

 1

“[T]he powers of boards of supervisors are fixed by 

statute and are limited to those conferred expressly or by 

necessary implication.” Board of Supervisors v. Horne, 216 

Va 113, 117, 215 S.E.2d 453, 455 (1975). This rule is 

corollary to the Dillon Rule that municipal corporations 

are similarly limited in their powers. Id. at 117, 215 

S.E.2d at 455-56. Because the trial court and the parties 

refer to the Dillon Rule, we will also in this opinion. 

2
- was mentally competent at time of consent to 

relationship; 

- is 18 years of age or older. 

 A stipulation entered into by the parties states that 

“[a] ‘domestic partner’ eligible for coverage as an adult 

dependent of a County employee under the County’s health 

benefits plan may be either a same-sex or opposite-sex 

domestic partner of a County employee,” that “[a]n employee 

applying for domestic partner coverage must certify that 

the employee and the domestic partner meet the criteria 

established by the County,” and that “[t]here are 

individuals who currently are covered as domestic partners 

of County employees under the County’s health benefits 

plan, and who have received benefits under the plan.” It 

was also stipulated that “[f]unds used by Arlington County 

to provide health benefits coverage for County employees 

and their adult dependents under the County’s self-funded 

plan include local tax dollars.” 

 Citing Code §§ 15.2-1517(A) and 51.1-801, the County 

correctly points out that “[t]he General Assembly 

specifically authorizes a local government to provide selffunded health benefit programs for its employees and their 

dependents.”2 The County notes that neither statute defines 

 2

Code § 15.2-1517(A) states that “[a]ny locality may 

provide . . . health insurance programs for their officers 

3
the term “dependent” or refers to other statutory 

provisions that define the term for different purposes. 

Continuing, the County further notes that no express 

statutory provision specifies which employee dependents are 

eligible to participate in a locality’s self-funded health 

benefits plan or by what method their eligibility is to be 

determined. 

 Under these circumstances, the County correctly 

maintains, “[t]he power to determine who is an employee’s 

dependent . . . is fairly and necessarily implied.” 

Furthermore, the County asserts, “the locality must make 

[the] determination itself”; indeed, it “could not carry 

out its authority without exercising its discretion.” In 

the process, the County submits, the term “dependent” 

should be given its plain and ordinary meaning as one 

“[r]elying on . . . the aid of another for support.”3 The 

American Heritage Dictionary 501 (2nd College Ed. 1985). 

 

and employees . . . through a program of self-insurance,” 

and § 51.1-801 states that a “local governing body may, 

through self-funding . . ., provide . . . sickness 

insurance coverage for officers and employees . . . and 

their dependents.” 

3

In this regard, however, we note that a dependant is 

also defined as “one not able to exist or sustain oneself 

without the power or aid of someone else.” Black’s Law 

Dictionary 449 (7th edition 1999). Moreover, as a term of 

art, a “legal dependent” is defined as “[a] person who is 

dependent according to law; a person who derives principal 

4
 In the end, the County opines, the “appropriate 

inquiry is whether [its] decision to include domestic 

partners as dependents in its plan is a reasonable method 

of implementing its authority.” This inquiry, the County 

concludes, must be answered in the affirmative. 

 Under Dillon’s Rule, [local governing bodies] 

have only those powers which are expressly granted by 

the state legislature, those powers fairly or 

necessarily implied from expressly granted powers, and 

those powers which are essential and indispensable. 

Where the state legislature grants a local government 

the power to do something but does not specifically 

direct the method of implementing that power, the 

choice made by the local government as to how to 

implement the conferred power will be upheld as long 

as the method selected is reasonable. Any doubt in 

the reasonableness of the method selected is resolved 

in favor of the locality. 

City of Virginia Beach v. Hay, 258 Va. 217, 221, 518 S.E.2d 

314, 316 (1999)(citations omitted). 

In light of these principles, we must decide whether 

the County’s inclusion of domestic partners as defined by 

the County is a reasonable implementation of the County’s 

authority to define an employee’s dependent for purposes of 

coverage in the County’s self-funded health benefits plan 

pursuant to Code §§ 15.2-1517(A) and 51.1-801. For the 

reasons that follow and giving the County the benefit of 

 

support from another.” Id. (emphasis added). 

Nevertheless, these definitions do not control our 

resolution of this appeal. 

5
any doubt, we conclude that the County’s definition of 

dependent is not reasonable and, therefore, violates the 

Dillon Rule.4

In 1997, responding to an inquiry from a member of the 

General Assembly, the Attorney General issued an opinion 

that the statutory scheme which permits local governments 

“to provide for their officers and employees [self-funded] 

group life, accident, and health insurance programs . . . 

[does not] contain any language from which a general 

legislative intent to extend insurance coverage to persons 

within the definition of ‘domestic partner’ may be 

inferred.” 1997 Op. Va. Att’y Gen. 131, 131-32. Citing 

prior interpretations applying the Dillon Rule and its 

corollary to the statutes at issue, id. at 131 n.8, the 

Attorney General concluded that “[i]n the absence of any 

statutory authority indicating an intent to permit a local 

governing body to extend health insurance coverage provided 

employees to persons other than the spouse, children or 

dependants of the employee . . . a county lacks the power 

to provide such coverage.” Id. at 132. In reaching this 

conclusion, the Attorney General expressly noted that the 

 4

Accordingly, we need not address the Taxpayers’ 

argument that the County has attempted to legislate in the 

field of domestic relations. 

6
requirement that the employee be “financially 

interdependent” with the “domestic partner” was contrary to 

the established definition of a “dependant” as one who 

“must receive from the taxpayer over half of his or her 

support for the calendar year.” Id.

The County’s benefit plan extends coverage to a County 

employee and one other adult, who may be the employee’s 

spouse, another adult who is properly claimed as a 

dependent on the employee’s federal tax return, or the 

employee’s “domestic partner.” The County’s definition of 

“domestic partner” includes eight criteria. Only two of 

these criteria address financial dependency — sharing 

expenses and being “financially interdependent.” Neither 

of these criteria is synonymous with “financially 

dependent.” 

The inclusion of a spouse as a dependent for the 

purpose of coverage under the County’s benefit plan does 

not eliminate the significance of this distinction. It is 

a matter of common knowledge and experience that a spouse 

may or may not be financially dependent on the employeespouse. However, including a spouse as a dependent for 

coverage such as this is of such long standing that, even 

in the absence of financial dependence, there can be no 

dispute that the General Assembly contemplated that a 

7
spouse would be included for coverage under local benefit 

plans. 

It is, nevertheless, equally clear that the General 

Assembly in leaving the definition of dependent to the 

local governing bodies which adopt self-funded health 

insurance benefit plans did not contemplate adoption of a 

definition that does not require some aspect of financial 

dependence rather than mere financial interdependence. 

This is the essential position of the Attorney General’s 

opinion cited above and, in our view, it is sound. 

Considering Code §§ 15.2-1517(A) and 51.1-801 and the 

Attorney General’s opinion, we are of opinion that the 

expanded definition of dependants eligible to receive 

coverage under the self-funded health insurance benefits 

plan adopted by the County is not a reasonable method of 

implementing its implied authority under those statutes and 

is, therefore, an ultra vires act. Accordingly, the 

judgment below will be affirmed. 

Affirmed. 

JUSTICE KINSER, concurring. 

 I join the majority opinion. However, I write 

additionally to point out that the central issue presented 

in this case is not, as stated in the dissenting opinion, 

whether “Arlington County [has] the legal authority to 

8
recognize common law marriages or ‘same-sex unions’ by 

conferring certain health insurance benefits upon domestic 

partners of County employees who are engaged in these 

relationships.” Rather, the following comprise the 

assignments of error in this appeal: 

1. The Court below erred by finding that Arlington 

County’s coverage of domestic partners in its 

self-funded health benefits plan violates the 

Dillon Rule, and in granting Plaintiffs’ Motion 

for Summary Judgment. 

2. The Court below erred by not finding that the 

County has authority to define the term 

“dependents” to include domestic partners for its 

self-funded health benefits plan for County 

employees, and in failing to grant the County’s 

Motion for Summary Judgment. 

3. The Court below erred in failing to recognize that 

the County has authority under the reasonable 

selection of method rule to define “dependents” to 

include domestic partners for purposes of 

administering its self-funded health benefit plan 

for County employees, and in failing to grant the 

County’s Motion for Summary Judgment. 

Furthermore, in the appellee Taxpayers’ brief filed in this 

appeal, only one of their three main arguments in support 

the circuit court’s judgment addressed the issue that the 

dissent calls “fundamental” and “central.” In fact, the 

rationale utilized by the majority to affirm the circuit 

court’s judgment is the same as that contained in the 

Taxpayers’ first argument on brief, i.e, that Arlington 

County’s definition of the term “dependent” to include 

9
individuals who are merely “interdependent” violates the 

Dillon Rule. 

If the present case were decided on the basis that 

Arlington County’s definition of “dependant” for 

purposes of its self-funded health benefit plan is not 

a reasonable method of implementing its implied 

authority because the definition bestows a 

governmental benefit on certain relationships that 

contravene Virginia’s public policy concerning 

marriage, the same could be said with regard to the 

tax benefit conferred pursuant to Code § 58.1-

322(D)(2)(a).5 Under that section, a Virginia taxpayer 

can claim a deduction for each personal exemption 

available to the taxpayer for federal income tax 

purposes. Under 26 U.S.C. § 151, a federal income tax 

exemption is available for each “dependent” of the 

taxpayer. The term “dependent” is defined in 26 

U.S.C. § 152. In pertinent part, that section states 

that the term ‘dependent’ means any of the following 

individuals over half of whose support, for the 

calendar year in which the taxable year of the 

taxpayer begins, was received from the taxpayer: . . . 

(9) An individual(other than an individual who at any 

time during the taxable year was the spouse . . . of 

the taxpayer) who, for the taxable year of the 

taxpayer, has as his principal place of abode the home 

of the taxpayer and is a member of the taxpayer’s 

household. 

Subsection (b)(5) of 26 U.S.C. § 152 further states that 

“[a]n individual is not a member of the taxpayer’s 

household if at any time during the taxable year of the 

taxpayer the relationship between such individual and the 

taxpayer is in violation of local law.” 

 

5

 The Taxpayers argue on brief that Arlington County’s 

definition of “dependent” conflicts with the definition of 

that term under state and federal income tax laws. 

10
 If, as the dissent asserts, “[t]he County’s expanded 

definition of eligible dependents is nothing more than a 

disguised effort to confer health benefits upon persons who 

are involved in either common law marriages or ‘same-sex 

unions,’” then the allowance of an income tax deduction in 

Virginia based on the Internal Revenue Code’s definition of 

“dependent” could also be deemed a “disguised effort” to 

confer a governmental benefit on taxpayers involved in the 

same kinds of relationships. Aside from the requirement of 

financial interdependence, as opposed to dependency, an 

individual satisfying Arlington County’s definition of 

“domestic partner” could also qualify as a "dependent" 

under 26 U.S.C. § 152(a)(9). That fact does not mean that 

such an individual can violate Virginia’s criminal statutes 

proscribing lewd and lascivious cohabitation, Code § 18.2-

345; fornication, Code § 18.2-344; and consensual sodomy, 

Code § 18.2-361. 

 I do not intend in any way to suggest that I condone 

common law marriages or “same-sex unions.” Nor do I 

question that such relationships do, indeed, violate the 

public policy of Virginia. However, neither my personal 

beliefs nor Virginia’s public policy make it necessary to 

11
decide this appeal on grounds that could call into question 

other sections of Virginia’s laws.6

JUSTICE HASSELL, with whom CHIEF JUSTICE CARRICO and SENIOR 

JUSTICE COMPTON join, dissenting in part, and concurring in 

judgment. 

I. 

 I dissent because the majority ignores the fundamental 

issue raised in this appeal: Does Arlington County have 

the legal authority to recognize common law marriages or 

"same-sex unions" by conferring certain health insurance 

benefits upon domestic partners of County employees who are 

engaged in these relationships? Even though a review of 

the briefs and record filed in this appeal demonstrates 

that this question is the primary issue raised in this 

appeal, the majority decides this case on another legal 

basis. Arlington County, the appellant, agreed in its 

brief that "[t]he central question in this case is whether 

Arlington County's action of including its employees' 

 

6 I also note that under Virginia’s State and Local 

Government Conflict of Interests Act, the term “dependent” 

is defined as “a son, daughter, father, mother, brother, 

sister or other person, whether or not related by blood or 

marriage, if such a person receives from the officer or 

employee, or provides to the officer or employee, more than 

one-half of his financial support.” (Emphasis added.) 

Code § 2.1-639.2. See also Code §§ 2.1-639.15, 2.1-

639.15:1, 2.1-639.31, 2.1-639.41, 26-69, 34-4, and 59.1-

365. 

12
domestic partners as dependents in the County's self-funded 

health benefits plan violates Dillon's Rule." 

 I respectfully disagree with the majority's decision 

to ignore the central issue raised in this appeal. This 

Court has a duty, as well as an obligation, to decide 

issues of great importance to the citizens of this 

Commonwealth when, as here, those issues are properly 

presented to this Court. 

II. 

 Arlington County implemented a self-funded health 

benefits plan for its employees. Pursuant to the plan, 

effective July 1, 1997, County employees were permitted to 

"add one adult dependent to their health and/or dental 

policy." The County stated, in its Employee Relations 

Benefits Newsletter that: 

"The adult dependent may be: 

"a. The employee's legal spouse; 

 "- or - 

"b. The domestic partner of the employee who: 

 "- has resided with the employee for a 1 

year period; 

 "- shares with the employee the common 

 necessities of life and basic living 

 expenses; 

 "- is financially interdependent with the 

 employee; 

13
 "- is involved with the employee in a 

mutually exclusive relationship of support 

and commitment; 

 "- is not related by blood to the employee; 

 "- is not married to anyone; 

 "- was mentally competent at time of consent 

to relationship; 

 "- is 18 years of age or older. 

 "- or - 

"c. Other adult dependent who meets the IRS 

definition of dependent and whom the 

employee claims as a dependent on his/her 

federal income tax return." 

 The County made the following stipulations of fact in 

the circuit court: 

 "An employee who applies for health 

insurance benefits coverage must complete a form 

to certify the eligibility of any dependents for 

whom coverage is requested. An employee applying 

for domestic partner coverage must certify that 

the employee and the domestic partner meet the 

criteria established by the County. Arlington 

County may require documentation to support 

eligibility for coverage. Any employee who 

provides false information is subject to 

disciplinary action and appropriate legal 

action." 

 Andrew White, Diana White, and Wendell Brown, 

residents and taxpayers of Arlington County, initiated this 

proceeding by filing a bill of complaint in the circuit 

court challenging the County's authority to confer health 

insurance benefits upon "unmarried domestic partners of its 

employees." They sought a declaration that the County 

lacked the statutory or constitutional authority to grant 

14
health insurance benefits to the unmarried domestic 

partners, and that Arlington County's policy of extending 

health insurance benefits to the unmarried domestic 

partners of Arlington County employees violates state 

public policy favoring marriage of two adults over the 

unmarried cohabitation of two adults. The taxpayers sought 

to enjoin the County from granting health insurance 

benefits to the domestic partners of its employees or from 

expending any tax money on the health insurance benefits 

for domestic partners of Arlington County employees. 

 The primary issue that the taxpayers raised in the 

circuit court was that the County had violated the Dillon 

Rule because the General Assembly had not conferred upon 

the County the power to grant health insurance benefits to 

domestic partners of County employees. The circuit court 

entered a judgment in favor of the taxpayers which states 

in relevant part that "Arlington County's coverage for 

domestic partners in its self-funded health benefit plan 

for County employees violates the Dillon Rule." The 

circuit court, however, did not articulate the precise 

reasons it relied upon in reaching its conclusion. 

 On appeal, the County argues that the circuit court 

erred because the County's health insurance coverage for 

its employees' domestic partners in its self-funded benefit 

15
plan does not violate the Dillon Rule. The County also 

argues that it has authority to determine which dependents 

are eligible for coverage and that its decision to include 

domestic partners of County employees as dependents in the 

County's self-funded health benefits plan must be approved 

as long as the County's action is reasonable. 

 We stated in City of Chesapeake v. Gardner 

Enterprises, 253 Va. 243, 246, 482 S.E.2d 812, 814 (1997), 

that 

 "[t]he Dillon Rule of strict construction 

controls our determination of the powers of local 

governing bodies. This rule provides that 

municipal corporations have only those powers 

that are expressly granted, those necessarily or 

fairly implied from expressly granted powers, and 

those that are essential and indispensable. 

Ticonderoga Farms v. County of Loudoun, 242 Va. 

170, 173-74, 409 S.E.2d 446, 448 (1991); City of 

Richmond v. Confrere Club of Richmond, 239 Va. 

77, 79, 387 S.E.2d 471, 473 (1990)." 

Accord Board of Supervisors v. Countryside Inv. Co., 258 

Va. 497, 503, 522 S.E.2d 610, 612-13 (1999); City of 

Virginia Beach v. Hay, 258 Va. 217, 221, 518 S.E.2d 314, 

316 (1999). We specifically discussed the application of 

the Dillon Rule to counties in Board of Supervisors v. 

Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455-56 (1975): 

 "In Virginia the powers of boards of 

supervisors are fixed by statute and are limited 

to those conferred expressly or by necessary 

implication. Gordon v. Fairfax County, 207 Va. 

827, 832, 153 S.E.2d 270, 274 (1967); Johnson v. 

16
Goochland County, 206 Va. 235, 237, 142 S.E.2d 

501, 502 (1965). This rule is a corollary to 

Dillon's Rule that municipal corporations have 

only those powers expressly granted, those 

necessarily or fairly implied therefrom, and 

those that are essential and indispensable. City 

of Richmond v. County Board, 199 Va. 679, 684-85, 

101 S.E.2d 641, 644-45 (1958)." 

 Code § 15.2-1517(A), which permits a locality to 

provide health insurance programs, states in relevant part 

that "[a]ny locality may provide . . . health insurance 

programs for their officers and employees . . . through a 

program of self-insurance." Code § 51.1-801 provides in 

relevant part that a "local governing body may, through 

self-funding . . . provide . . . sickness insurance 

coverage for officers and employees . . . and their 

dependents." The General Assembly, however, did not define 

the word "dependents." The County argues that the 

"appropriate inquiry is whether [its] decision to include 

domestic partners as dependents in its plan is a reasonable 

method of implementing its authority." 

 We have stated the following principles that we must 

apply when ascertaining whether a power may be implied from 

a statutory grant to a county: 

"In questions of implied power, the answer is to 

be found in legislative intent. To imply a 

particular power from a power expressly granted, 

it must be found that the legislature intended 

that the grant of the express also would confer 

the implied. 

17
 "In determining legislative intent, the rule 

is clear that where a power is conferred and the 

mode of its execution is specified, no other 

method may be selected; any other means would be 

contrary to legislative intent and, therefore, 

unreasonable. A necessary corollary is that 

where a grant of power is silent upon its mode of 

execution, a method of exercise clearly contrary 

to legislative intent, or inappropriate to the 

ends sought to be accomplished by the grant, also 

would be unreasonable. 

 "Consistent with the necessity to uphold 

legislative intent, the doctrine of implied 

powers should never be applied to create a power 

that does not exist or to expand an existing 

power beyond rational limits. Always, the test 

in application of the doctrine is reasonableness, 

in which concern for what is necessary to promote 

the public interest is a key element." 

Commonwealth v. Arlington County Board, 217 Va. 558, 577, 

232 S.E.2d 30, 42 (1977) (citations omitted); accord

Tidewater Ass'n of Homebuilders, Inc. v. City of Virginia 

Beach, 241 Va. 114, 119, 400 S.E.2d 523, 526 (1991). 

 The County's expanded definition of the word 

"dependents" clearly and unequivocally violates the Dillon 

Rule. This definition is an unreasonable method of 

implementing the power granted to the County under Code 

§§ 15.2-1517(A) and 51.1-801. The County's expanded 

definition of eligible dependents is nothing more than a 

disguised effort to confer health benefits upon persons who 

are involved in either common law marriages or "same-sex 

unions," which are not recognized in this Commonwealth and 

are violative of the public policy of this Commonwealth. 

18
The General Assembly, by enacting Code § 20-45.2, expressly 

prohibited marriage between persons of the same sex. This 

Code provision states in relevant part that "[a] marriage 

between persons of the same sex is prohibited." Also, we 

have held that Virginia does not recognize common law 

marriages. Murphy v. Holland, 237 Va. 212, 219-220, 377 

S.E.2d 363, 367-68 (1989). 

 Furthermore, and just as important, the County's 

expanded definition of dependents is inappropriate because 

it permits the County to legislate in the area of domestic 

relations, a prerogative that lies within the exclusive 

domain of the General Assembly of this Commonwealth. See

Cramer v. Commonwealth, 214 Va. 561, 564-65, 202 S.E.2d 

911, 914, cert. denied, 419 U.S. 875 (1974). The General 

Assembly, not a county, is entrusted with the 

responsibility of recognizing and defining marital 

relationships. 

 Certainly, the General Assembly did not intend, by its 

enactment of Code §§ 15.2-1517(A) and 51.1-801, to grant 

counties, like Arlington, the power to recognize common law 

marriages or "same-sex unions." Even a cursory review of 

Arlington County's eligibility criteria demonstrates that 

Arlington County seeks to recognize such relationships 

because the criteria require that the employee, who seeks 

19
to add a non-employee as a dependent in the County's health 

plan, certify that the employee has resided with his or her 

domestic partner for a period of one year, "not [be] 

married to anyone," "[share] with the employee the common 

necessities of life and basic living expenses," "[be] 

financially interdependent with the employee," "not [be] 

related by blood to the employee," and "[be] involved with 

the employee in a mutually exclusive relationship of 

support and commitment." There can be no question or doubt 

that Arlington County seeks to recognize, tacitly, 

relationships that are violative of the public policy of 

this Commonwealth. 

 The County states, in a footnote in its reply brief 

filed in this Court, that "Virginia['s] state tax law 

permits one member of an unmarried couple living together 

to claim the other as a dependent for individual tax return 

purposes." The County relies upon an Attorney General's 

opinion as authority for this proposition. See 1985-1986 

Att'y. Gen. 278, 279. Continuing, the County says that "if 

state tax law permits this, then it does not contravene 

state public policy for the County to provide health 

benefits to an employee's domestic partner." The County's 

contention is neither persuasive nor meritorious. The 

General Assembly did not, in the State's taxation statutes, 

20
alter Virginia's public policy prohibition against common 

law marriages or "same-sex unions." Moreover, the state 

taxation statutes do not confer upon a county in this 

Commonwealth the authority to recognize, tacitly, common 

law marriages or "same-sex unions." 

 The majority holds that Arlington County's decision to 

provide health benefits to domestic partners of County 

employees violates the Dillon Rule only because the 

County's health benefits plan requires that the domestic 

partner be "financially interdependent with the employee." 

As I have already stated, the majority's opinion ignores 

the central issue in this appeal. The majority's decision 

to do so is troublesome because if the Arlington County 

Board of Supervisors deletes from its health benefits plan 

the provision that the majority finds offensive, and 

implements a health benefits plan that confers benefits 

upon partners of County employees who are involved in 

common law marriages or "same-sex unions," the taxpayers 

will be compelled to file another lawsuit to challenge the 

legality of the County's actions. 

 I think that a purpose of the appellate process is to 

render decisions that will adjudicate the primary 

principles of an appeal, thereby ending the litigation when 

possible. Unfortunately, because the majority has chosen 

21
to ignore the primary issue in this appeal, the taxpayers 

and the County may incur additional legal fees to 

relitigate an issue that is already before the Court. The 

majority's decision to ignore this issue may also result in 

a waste of judicial resources because, presumably, the 

circuit court and this Court will confront this issue 

again. For these reasons, I cannot join in the opinion of 

the majority. 

22