Blogging the Amendment

Offering a Forum to Discuss the Pros and Cons of the Marshall/Newman Amendment

The Amendment in the Blogosphere

There are some very smart folks out there in the blogosphere. 

NoVATownhall has two long and well argued threads with good commentary (pro and con) about the Marshall/Newman amendment here and here.

I particularly enjoyed being reminded of this quote from Alexis de Tocqueville:

 In Alexis de Tocqeville’s Democracy in America in Chapter 16: Causes Which Mitigate the Tyranny of the Majority in the United States he writes: “I am aware that a secret tendency to diminish the judicial power exists in the United States….by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself.”
[p.s.,If you can find this in the long thread, I’ll know that you really read all of the comments.]

Equality Loudoun, one of The Coalition’s partner organizations, continues some of the discussion here.

Keep up the good work!

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June 27, 2006 - Posted by | activist judges, children, domestic violence, limited government, politics of marriage, Traditional marriage

9 Comments »

  1. Thanks for the link.

    While we disagree on fundamentally redefining marriage, I hope we all can engage in a spirited discussion on the issue as we head into November.

    Comment by Sophrosyne | June 27, 2006 | Reply

  2. Sophrosyne:
    Thank you. I am looking forward to an informed and responsible dialogue about this important issue.

    One thing that I hope that we’ll be able to make clear to voters is that voting NO on this proposed amendment does nothing to “redefine” marriage. Voting NO simply preserves the status quo which is that marriage between same sex couples is illegal as are civil unions between same sex couples. It leaves in the hands of our elected officials the question whether and when these laws might be amended in accordance with the will of the people.

    Voting YES, however, would radically alter the status quo, by greatly expanding the state’s unchallenged 30 year old statute defining marriage by disallowing any recognition of any unmarried relationships and making that disallowance permanent and outside the elected legislature’s ability to discuss, define or amend.

    In that way, the proposed amendment does seek to redefine the Virginia constitution as a document that limits the rights of all unmarried Virginians to enter into private agreements to define their relationships with the “intent” to “approximate” the benefits or obligations of marriage and, further, limits the rights of churches or congregations that do not adhere to your definition of marriage to celebrate marriages according to their faith.

    Thanks for engaging!
    Claire

    Comment by VoteNO | June 27, 2006 | Reply

  3. I am glad we both look forward to an “informed and responsible dialogue about this important issue”… but that may be the only thing we agree on! Anyways thanks for offering another open forum for discussion.

    One thing that I hope that we’ll be able to make clear to voters is that voting NO on this proposed amendment does nothing to “redefine” marriage.

    Technically this is true… but it is undeniable that voting no also leaves Virginia much more susceptible to some activist judge intent on redefining marriage via judicial decree as we saw with the Goodridge case in Massachusetts. Same-sex “marriage” advocates can spin this situation as much as they want but the bottom line is that had Massachusetts possessed a Marriage Amendment in their state constitution, judges would not have and could not have ruled that the only reason anyone can believe in marriage as a union of a man and a woman is “animus” or hatred and the peoples’ definition of marriage would have prevailed. Now, as we have this conversation, thousands of concerned MA citizens are collecting signatures to put an amendment similar to the one proposed in Virginia on the ballot and undo this undemocratic judicial redefinition of marriage. Why wait for this to happen in Virginia when we can protect marriage and prevent it from even happening?

    Voting NO simply preserves the status quo which is that marriage between same sex couples is illegal as are civil unions between same sex couples.

    Voting against the Marriage Amendment does leave marriage as it has been defined for millennium intact (i.e. the status quo) but it also leaves it perilously susceptible to litigation and judicial attack… an unnecessary risk Virginians should not take.

    It leaves in the hands of our elected officials the question whether and when these laws might be amended in accordance with the will of the people.

    Yes… until some rogue judge decides to change it for us… while the Marriage Amendment permanently places the definition of marriage in control of the people. Our elected officials can at any time introduce another amendment to the constitution to modify this or any other part of our principal governing document. To imply that Virginia’s amendment process… arguably the most democratic process we have, would run counter to the will of the people makes no sense.

    Voting YES, however, would radically alter the status quo, by greatly expanding the state’s unchallenged 30 year old statute defining marriage by disallowing any recognition of any unmarried relationships and making that disallowance permanent and outside the elected legislature’s ability to discuss, define or amend.

    Huh? Disallowing “recognition of ANY unmarried relationships”? Come on… we all know it will do no such thing. EXISTING Virginia law (15 VA. CODE ANN. §8; VA. CODE ANN. §20-45.2; VA. CODE ANN. §20-45.3.) states:

    “Marriage is the legally recognized union of one man and one woman. … A marriage between persons of the same sex is prohibited. Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable. … 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 state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.”

    Existing statute already bans anything designed to approximate marriage or “bestow the privileges or obligations of marriage” between members of the same-sex. The only difference is that this extends this ban on civil unions-like relationships to everyone. Now, if you want us to believe that the Marriage Amendment will destroy contracts, wills, and other legal documents/relationships between everyone then you’ll have to demonstrate how this has already happened to same-sex couples (or any two heterosexual individuals of the same gender who enter into any contract, Power of Attorney, etc) since we’ve already been under this language for years.

    Has ANY court in Virginia ruled that because of this existing language (currently applicable to everyone of the same sex) “recognition of any unmarried relationships” (i.e. basic contracts, Power of Attorney, or living wills, etc) is invalidated? Of course not. There is no rational reason to believe a judge will somehow swoop in and invalidate all contract rights because we changed the ban on Civil Unions from “persons of the same sex” to “unmarried individuals.”

    This tactic is just playing with semantics in an attempt to scare people out of voting for a perfectly well worded amendment that will NOT disallow any recognition of any unmarried relationships. Again, if you have a court ruling showing that this existing law (which has been applied to all same-gender relationships for years) resulted in the invalidation of any recognition of unmarried relationships between anyone please let me know and I’ll reconsider my position.

    I also feel compelled to point out that this disinformation strategy is clearly spelled out by the head of the Marriage Project for the pro same-sex “marriage” Human Rights Campaign, Seth Kilbourn, who said that their strategy in states [in opposing State Marriage Amendments] has been to claim “that amendments go too far, that the effects are unknown, that you should be careful what you put in the constitution” despite the fact that there is no credibility to such an argument.

    In that way, the proposed amendment does seek to redefine the Virginia constitution as a document that limits the rights of all unmarried Virginians to enter into private agreements to define their relationships with the “intent” to “approximate” the benefits or obligations of marriage and, further, limits the rights of churches or congregations that do not adhere to your definition of marriage to celebrate marriages according to their faith.

    See above… there really is no credibility to the argument that the Marriage Amendment would limit “private agreements.” As to the church comment… this is about civil marriage and that is about religious marriage… a very important distinction. With the existing language (nearly identical to the Marriage Amendment) already the law of the land, same-sex couples are still entering into what they deem “religious marriages” in Virginia at various liberal churches (check out the NOVA Metropolitan Community Church if you don’t believe me).

    Despite all the spin, this debate is about democratically elevating existing statute into the Virginia Constitution to protect marriage as the union of the complementary parts of humanity (one-man, one-woman) from judicial activism. The danger of inaction is very real (see Massachusetts) meanwhile the danger claimed by same-sex marriage advocates is not so real and is really just a hollow attempt to spew enough misinformation to confuse Virginia voters and make Virginia more susceptible to litigation and judicial activism.

    I know I’ll be voting FOR the Marriage Amendment this November. In the meantime I am happy to talk about what the Marriage Amendment actually says (heck, I have been for months now to all of my friends and coworkers)… we all should since that will quickly cast aside the baseless fear-mongering of the Anti-Marriage Amendment coalition and bring us closer to protecting marriage as one-man, one-woman in Virginia.

    Comment by Sophrosyne | June 27, 2006 | Reply

  4. PS: Please don’t try to bring up the Ohio case where one judge has ruled that their domestic violence law (linked to marriage unlike Virginia’s which is linked to households) was invalidated by their amendment. This reasoning, while not even applicable in Virginia if it did stand in Ohio due to significant differences in domestic violence law, was rejected by numerous other appeals courts and is not in effect as it awaits review by the Ohio Supreme Court.

    Comment by Sophrosyne | June 27, 2006 | Reply

  5. Sophrosyne:
    You’ve got all the arguments on the va4marriage site down well. Just a few problems with the facts and the law also reflected there are revealed in your arguments.

    First, HB 751 does not use any of the same language used in the amendment. It does not prohibit the state and local government, including the courts, from “recognizing” any agreement that “intends” to “approximate” any (and it is disjunctive) of the design, qualities, significance or effects of marriage. Nor does it deny “recognition” to any legal status to which is “assigned” the “rights, benefits, obligations, qualities or effects” of marriage.

    The inclusion of the word “recognize” is the most problemmatic of the new words used in the amendment not present in HB 751. It will deprive the courts of the ability to enforce any private agreement that two parties enter into with the intent to approximate any one of these: design, qualities, significance or effects of marriage. See the Republican AG’s opinion here for a discussion of the meaning of the word “recognize.”

    I’m sorry that you don’t want me to bring up the dozens of cases in Ohio that have challenged the domestic violence laws (and the many other victims who’ve been told by courts and judges that they can’t get protective orders) or the two of seven (out of 12) appeals courts in Ohio (not just one judge as you and va4marriage have claimed) that have held that the Ohio law is unconstitutional. Among other things, that’s probably because the folks in Ohio affiliated with Focus on the Family, Citizens for Community Values, who were proponents of the Ohio amendment and called the domestic violence argument “absurd” during the campaign have now filed a brief saying that the “plain language” of the amendment demands that the Ohio Supreme Court find the law unconstitutional.

    Perhaps if you knew that it is a crime punishable for by up to a year in jail for anyone to celebrate a marriage for an “unlicensed” couple, it would help you understand the freedom of religion argument, § 20-28. Penalty for celebrating marriage without license.

    And the activist judge thing is a complete red herring. Virginia is decidedly not Massachusetts as we can all agree. Virginia judges are elected for 6, 8 or 12 year terms by the Virginia legislature and the legislature has shown its readiness (particularly in recent years) to refuse to appoint or reappoint any judge off whom they believe to be out of synch with Virginia values. This has a chilling effect on so-called activist behavior by state court judges, or, at least, activist behavior not in line with the views of those who seem most concerned about the independence of the judiciary.

    Two Virginia judges have, in fact, dealt with HB 751 and its effect on same sex couples. Two different trial judges in the Miller v. Jenkins child custody case, were quick to grab on to HB 751 as a reason to ignore a valid separation and child custody agreement entered into by two parties to a valid civil union in another state. They even ignored conflicting federal law that was designed to prevent forum shopping in child custody disputes to do so.

    And, that brings us full circle… it is not factual to say that there have been no adverse consequences from HB 751 .. there have been and the child who lost a parent in the case is the real loser and victim.

    To be continued….
    Claire

    Comment by VoteNO | June 27, 2006 | Reply

  6. Before I respond I want to make sure I understand a few things:

    So you are opposed to HB 751?

    You believe that the Ohio domestic violence laws are the equivalent of Virginia’s? (I noticed you didn’t address this issue in your response)

    I’ll jump deeper into my thoughts on your comment that the Marriage Amendment will disalow “recognition of ANY unmarried relationships” in a short while.

    Comment by Sophrosyne | June 27, 2006 | Reply

  7. I support repeal of HB 751 as an unjust and unnecessary intrusion into the private lives and contract rights of many Virginians.

    The Ohio domestic violence law and Virginia’s domestic violence laws are nearly identical in language and effect. The one difference is that the Ohio courts recognize and give credit to the fact that the Ohio law had been interpreted for years to apply to all unmarried relationships (gay or straight) while Virginia’s law was interpreted in an official opinion issued by former Attorney General Gilmore (although not in court) as not applying to gay couples because it applies only to heterosexual couples who could fit within the statutory definition that requires “cohabiting” as “man and wife.” Therefore, its clear that, if applied to unmarried couples after the amendment passes, the Virginia statute would be giving unmarried couples a “legal status” approximating a benefit, obligation, effect or significance of marriage.

    Comment by Claire Gastanaga | June 27, 2006 | Reply

  8. Claire,

    Sorry for the delay in re-engaging in this comment thread… busy week (thank goodness it’s finally the 4th of July weekend, right? Although I suppose you’ll be busy organizing coverage of the many events…)

    I think it is very telling that you, as campaign manager of Anti-Marriage Amendment coalition, are opposed to the existing statute defending marriage (HB 751) and you’re your coalition illogically uses the term “marriage equality” (when referring to the redefinition of marriage to no longer mean the union of a man and a woman… not an equality issue of WHO can marry but an issue of what marriage IS). If, as it seems pretty clear, your goal is really to make it easier to radically change what marriage IS in order to permit same-sex marriage via litigation in the not too distant future… why cloak your true intentions with a Trojan horse of baseless fear tactics (telling everyone the Marriage Amendment will disallow “any recognition of any unmarried relationships”… including the Powers of Attorney, contract rights, wills, etc)? The only answer I can think of is you know the good people of Virginia disagree and believe marriage is between a man and a woman and it is best not to willfully deny children a mom or a dad, and thus your only hope is deception. Come on, let’s have an open and honest debate over the nature of marriage rather than engage in a misinformation campaign designed to instill confusion. While there are credible, recent, and sustained legal examples of the need for the Marriage Amendment in that we have seen what happens when marriage is left protected only in statute (see Massachusetts)… you have no such examples for your argument.

    I truly hope that the only evidence you can muster to support your claim that recognition of ANY unmarried relationship will shatter once/if Virginia institutes the Marriage Amendment (as 20 other states already have by an average vote of 71%) is not some incomparable rulings in Ohio that was in disagreement with 6 other courts and was ultimately overturned. I’ll explain…

    First, you’re not being honest about where things currently stand in Ohio- you’re ignoring the Ohio Court of Appeals dismissal of the lower court rulings (not the many that have ruled that the Marriage Amendment does not affect domestic violence laws but the 2 that have claimed the Marriage Amendment invalidated such laws). While an appeal is pending the fact remains that right now Ohio courts have ultimately recognized the flaw in your position. Furthermore, even if Ohio did rule that their amendment affected domestic violence the same would not hold true in the Commonwealth (despite your claims otherwise).

    This is because you neglect (deliberately I assume) to really address how Virginia law is different from Ohio on this issue. Virginia clearly defines the class of victims of domestic violence as any “household member” who “cohabitates” or “resides” with another person. It has no reference to marriage or, in fact, any relationship at all between the two people who reside together. (see VA Code 18.2-57.2) This means that our domestic violence laws apply regardless of any relationship status recognized by the state (married, legal guardian etc). Meanwhile the Ohio statute discusses a person “living as a spouse”. Pretty distinct, huh?

    So… the bottom line is that even though Ohio’s domestic violence law is fundamentally different than Virginia’s (in that it specifically refers to marriage and a “spouse”)… arguments that the Ohio Marriage Amendment impacts domestic violence law have been reversed and rejected by the Ohio Court of Appeals. Thus on both counts (the issue of comparability between Ohio law and Virginia law and the issue of whether any sustained ruling has held that the Marriage Amendment impacts any other kind of relationship) your argument falls flat on its face.

    The many Delegates and Senators in our General Assembly who are lawyers and deal with domestic violence cases dismissed this entire argument as absurd and passed the well worded Marriage Amendment TWICE by overwhelming margins (79-17 & 30-10 in 2005 and 76-22 and 29-11 in 2006)… hardly a partisan vote. And Virginia’s Attorney General… the “people’s lawyer” will soon be issuing an opinion we have heard will further reinforce the reality of the Marriage Amendment’s impact.

    Given the input from all of these men and women of law (Democrat and Republican) and the fact that you can provide no sustained examples to back up your claims when 20 states already have enacted Marriage Protection Amendments… it seems to me like you (and the Anti-Marriage Amendment Commonwealth Coalition) are just shopping for an excuse to cloak your true disagreement with the amendment (that it defines marriage as one man and one woman).

    Comment by Sophrosyne | June 30, 2006 | Reply

  9. Ah, my friend, what sophistry from a person whose nom de plume means moderation or self control…

    I am amused that you need to resort to name-calling to make your points. We are not the “Anti-marriage” Coalition… in fact, just the opposite. We are pro-marriage in every sense of the word. It is you who are anti-marriage, at least for some.

    The fact that I believe that HB 751 is bad public policy doesn’t make my arguments about the impact of this amendment wrong. Neither is the fact that I would oppose an amendment that simply defined marriage as between one man and one woman, because I believe that government sanctioned “marriage” should be equally available to same-sex couples.

    Nonetheless, this amendment does not simply define marriage as between one man and one woman. It goes way beyond that to intrude the government further into our private lives than most Virginians I know would want.

    As to the misinformation that you continue to spread about the Ohio situation, suffice it to say that there are 12 intermediate appellate courts in Ohio. 7 of them have ruled in domestic violence cases. 5 of the 7 have said that the Ohio amendment does not invalidate the Ohio statute and 2 have said that it does. It is this conflict among the appellate courts that the Ohio Supreme Court has agreed to resolve.

    And, you are also misinformed about the wording of the Ohio and Virginia statutes. They are in fact close to identical.

    Here’s the definition of “family and household member”
    from the Virginia Code:
    “Family or household member” means (i) the person’s spouse, whether or not he or she resides in the same home with the person, (ii) the person’s former spouse, whether or not he or she resides in the same home with the person, (iii) the person’s parents, stepparents, children, stepchildren, brothers, sisters, half-brothers, half-sisters, grandparents and grandchildren, regardless of whether such persons reside in the same home with the person, (iv) the person’s mother-in-law, father-in-law, sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in the same home with the person, (v) any individual who has a child in common with the person, whether or not the person and that individual have been married or have resided together at any time, or (vi) any individual who cohabits or who, within the previous 12 months, cohabited with the person, and any children of either of them then residing in the same home with the person.

    Here’s the definition from the Ohio statutes:
    Ohio Revised Code §2919.25(F)(1) defines “family or household member” as:
    (a) Any of the following who is residing or has resided with the offender:
    (i) A spouse, a person living as a spouse, or a former spouse of the offender;
    (ii) A parent or a child of the offender, or another person related by consanguinity or affinity to the offender;
    (iii) A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.
    (b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.

    The Ohio statute further defines “person living as a spouse” as: “a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.” Revised Code §2919.25(F)(2).

    So both the Ohio and Virginia statutes use “family and household member” and both use the word “cohabit” in defining the relationship of persons living together without the benefit of marriage who come within the protections of the statute.

    And, here’s what former Attorney General Gilmore said that the word “cohabit” in the Virginia statute means in a formal opinion he issued in 1994:

    “In customary legal usage, “cohabitation” [*3] means “[t]o live together as husband and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations.” BLACK’S LAW DICTIONARY 260 (6th ed. 1990).

    The Supreme Court of Virginia has held that the term “cohabit” means “‘to live together in the same house as married persons live together, or in the manner of husband and wife,'” and emphasized that, while the existence of a sexual relationship between the parties is a factor in determining cohabitation, to cohabit “‘also imports the continuing condition of living together and carrying out the mutual responsibilities of the marital relationship.'” n1 Schweider v. Schweider, 243 Va. 245, 248, 415 S.E.2d 135, 137 (1992) (quoting Johnson v. Commonwealth, 152 Va. 965, 970, 146 S.E. 289, 291 (1929); Petachenko v. Petachenko, 232 Va. 296, 299, 350 S.E.2d 600, 602 (1986); see also Frey v. Frey, 14 Va. App. 270, 273-75, 416 S.E.2d 40, 43 (1992).”

    So, if the Virginia domestic violence statute extends only to persons who are “cohabiting” and, therefore, having a legal status that approximates marriage, it seems clear that the amendment would prohibit extending the “benefit” of protective orders to unmarried victims of domestic violence and the “effects” of higher criminal sanctions to their abusers.

    That’s what the Citizens for Community Values now argue in Ohio after making the kind of arguments you make during their campaign for the amendment. They now say the Ohio statute affords persons “living in marriage-like relationships” a legal status and that it is unconstitutional to do so.

    I’ll be interested to see any opinion that the AG chooses to issue. Of course, his opinions could hardly be characterized as objective since he’s out campaigning and raising money for the proponents. In that case, he isn’t the people’s lawyer acting in a quasi-judicial capacity … he’s just another advocate.

    Comment by VoteNO | June 30, 2006 | Reply


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