Blogging the Amendment

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

Can We Just Agree that the Judicial Activism Dog Won’t Hunt in VA?

Only 3 state supreme courts have overturned state marriage bans based on the language of their state constitutions (HI, VT and MA). 4 state supreme courts have refused to do so (NJ, IN, NY and AZ).  Add to the refusniks, LA, GA and FLA that have turned back challenges to amendments based on the single object rule.

Massachusetts, oft cited by the opponents, may be a commonwealth but is it not like Virginia. The judges on the highest court in Massachusetts, like the US Supreme Court, are appointed for life and are insulated from the political process as a means of protecting judicial independence.  But, even this didn’t keep the justices from ruling 7-0 in an opinion released today that an initiative to define marriage in Massachusetts as between one man and one woman can be put to a popular vote.

Virginia judges are elected by the legislature for terms of 6 years (trial courts), 8 years (intermediate appellate court) and 12 years (Supreme Court). The legislature has shown no reluctance in failing to elect or failing to re-elect judges with whom they have some disagreements about decisions or who they feel don’t meet their standards of judicial conduct/temperament (just ask Verbena Askew or, if you could, now deceased Nina Peace). This, as you might surmise, has an effective chilling effect on any “activism” of the sort our opponents claim to fear.

Moreover, the chief justice and, at least one other justice still on the Supreme Court of Virginia have already signaled how they will rule on any question about the constitutionality of Virginia’s current ban on same-sex marriages and civil unions under the Virginia constitution.  Here’s a linkto the Arlington County domestic partnership case in which now Chief Justice Hassell and Justice Kincer both said that they thought that same-sex unions and “common law” marriages are against the public policy of Virginia.

Hassell said (in a dissent joined by two justices who are now retired, Carrico and Compton):

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. The General Assembly, by enacting Code Section 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 (1989).

Certainly, the General Assembly did not intend, by its enactment of Code Sections 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 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.

Kincer said:

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. Section 152(a)(9). That fact does not mean that such an individual can violate Virginia’s criminal statutes proscribing lewd and lascivious cohabitation, Code Section 18.2-345; fornication, Code Section 18.2-344; and consensual sodomy, Code Section 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 decide this appeal on grounds that could call into question other sections of Virginia’s laws.

So, it would appear that the alleged fear of activist judges is without any factual foundation in Virginia. 

Advertisements

July 10, 2006 - Posted by | activist judges

4 Comments »

  1. Andjust what is an “activist judge” in the first place? Yet another bogeyman concocted by the right-wing to win yet one more victory over yet another non-existent threat.

    Think about it: An “activist judge” is any judge that any group today is unhappy with. Unable to accept the possibility that judges have reached conclusions different from their own on the basis of the facts viewed through the lens of legal precedent, constitutional principles, and moral reasoning–they resort to name-calling and then vow to cleanse our society of the contaminating influence. To my view, it’s just one step removed from the blacklists and commie-baiting of the McCarthy era.

    When the US Supreme Court ruled in Brown that segregated public schooling violates fundamental principles of equality, many in Virginia must have blasted them as “activist judges.” They were, rather, good judges with active minds. They were doing their often thankless job well, precisely because they did not concern themselves over whether their ruling would be popular.

    The right-wing that is behind this Amendment has only one sound argument that does not fly in the face of science or the realities of everyday life: that argument is “it’s our tradition.” Of course, tradition alone makes the weakest argument for law, for science, and for religion. It’s the crutch that fundamentalists of all stripes lean on in order to protect themselves from realities that make them fearful–whether that’s evolution, mixed-race marriages, neighbors speaking Spanish, or same-sex couples living down the street. All untraditional, possibly shocking, but hardly the end of civilization.

    If we are to “protect” marriage by preserving the most traditional definitions of marriage, why stop at banning same-sex unions? Why not keep going and roll back divorce laws? Why not remove property rights from women? Why not return to where we were just 50 years ago and prohibit unmarried couples from using contraceptives? The genuine argument from tradition would take us there, and still might one day.

    You can stand on the side of tradition if you want to. I’d rather stand on the side of equality and fairness.

    Comment by Marc DeFrancis | July 13, 2006 | Reply

  2. We should not let the religious fundies get away with pretending they don’t have scores of activist judges in their own pockets.

    Jim Austin

    Comment by Skyline | July 14, 2006 | Reply

  3. If we are to “protect” marriage by preserving the most traditional definitions of marriage, why stop at banning same-sex unions? Why not keep going and roll back divorce laws? Why not remove property rights from women? Why not return to where we were just 50 years ago and prohibit unmarried couples from using contraceptives? The genuine argument from tradition would take us there, and still might one day.

    Unfortunately, this is not hyperbole – there are people making these very arguments in all seriousness. There’s a guy who posts on Family Scholars who insists that marriage is a license from the state to have sex, and that anyone who “attempts to procreate” without a license should be imprisoned. There are members of the Virginia General Assembly who have tried to sneak language into bills that would define the common birth control pill as an “abortifacient.”

    There is no stopping point.

    Comment by David | July 14, 2006 | Reply

  4. I bristle each time I hear someone on our side use the term “activist judge,” just as I’d bristle if our side were to use terms like “Marriage Protection” or “Marriage Affirmation.” We should not play into the hands of our opponents!

    In granting marriage equality, Massachusetts judges were legally bound by the Massachusetts Consititution, which they acknowledged in their opinion is MORE protective of individual liberty than the U.S. Constitution. It’s been a while since I’ve read the two Goodridge opinions, so I’m not quoting directly, but the justices noted that the Massachusetts Constitution specifically forbids granting special privilege to citizens without some service to the Commonwealth (military service, etc). Opposite-sex couples are not entitled to “special” privileges!

    The opinions written by the Mass Supreme Judicial Court examine each and every argument offered for denying same-sex couples equality (or rather, for granting special privileges to opposite-sex couples) and could find none that held water.

    In refering to judges who treat gays as though they are entitled to equality under law, we ought to use only those terms which honor their service to constitutional law, and to the plaintiffs who appear before them. The Massachusetts judges simply heard the case and applied existing Massachusetts Constitutional law. Period. There was nothing “activist” about it, except that it ordered an end to “traditional” discrimination that had no rational justification.

    As I recall, even the dissenting judges agreed the couples should have equal rights, but considered civil unions adequate. They worried about the bookkeeping problems for the State created by the Federal DOMA (which doesn’t recognize same-sex marriages). In the end, the Court ruled it would do right by the citizens of Massachusetts, even if other jurisdictions (ie, the US Gov’t) failed to do so.

    I’d like to see us defend judges from being called “activist” for just doing their duty. I’m reminded of a line from the movie “In the Heat of the Night” in which Sidney Poitier is asked by a racist sherrif, “What do they call you, boy?” He responds, “They call me MISTER Tibbs.”

    Comment by Karen Solon | July 19, 2006 | Reply


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: