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.
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.