Blogging the Amendment

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

Labor and Business United in NO

At its convention last week, the AFL-CIO voted to oppose the Marshall/Newman amendment.

Now labor is united with an increasing number of folks in the business community, local officials and other public employers in agreeing that NO is the right answer to Ballot Question #1!

After all, why would either business or labor want to support an amendment to the constitution that permanently constrains their ability to negotiate or pay equal benefits to all employees regardless of their sexual orientation or marital status? 

After all, why would either labor organizations (like the VEA or the Professional Firefighters) or state and local employers want to be in the situation where no public employer (including schools, colleges and universities) could ever offer their unmarried employees domestic partner benefits equal to those offered to the spouses of married employees? 

The Marshall/Newman amendment will make radical changes in the status quo that will permanently limit the ability of Virginia public and private employers to compete for the best and most capable employees.  This will hurt our economy and every taxpayer who wants their child taught by the BEST professors or teachers available or their lives protected by the best available firefighter or police officer regardless of marital status or sexual orientation.

Don’t write discrimination into Virginia’s Bill of Rights!

Read ALL of Ballot Question #1; then vote NO on NOvember 7th!

August 25, 2006 Posted by | discrimination, economic impact, politics of marriage, unintended consequences | Leave a comment

Jaded JD Changes Mind; Writes Lucidly (Again) About Marshall/Newman Amendment

Jaded JD said he wasn’t going to write about the Marshall/Newman Amendment again, but he did.  And, because he says he’s going to shut down his blog and go away forever soon, I’m reproducing his post in its entirety here so that it will be available if he really goes away and doesn’t change his mind about that, too.  (Please do, JD!)

 Mawage: Mawage is what bwings us togefer today; mawage, that bwessed awangment, that dweam wifin a dweam….

I know I said I had nothing more to say about the proposed constitutional amendment to ban civil recognition of same-sex relationships in Virginia, but I do have some questions I have not seen addressed yet.

1.  Proponents of the amendment say that the amendment would do nothing more than constitutionalize existing statutory law.  If that is true, why is the verbiage different?  Compare:

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.

Va. Code Ann. Secs. 20-45.2 and 20-45.3.

[O]nly a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.  This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

Ballot Question No. 1.

2.  The amendment purports to be a pre-emptive action against “activist judges.”  Presumably, proponents are aware of the Supremacy Clause, granting federal law supremacy over state law, and Hunter v. Martin’s Lessee and Cooper v. Aaron, holding that federal courts supersede states on question of federal law.  Therefore, the Virginia constitution–and the proposed amendment to it–will only protect the proponents’ position on civil recognition of same-sex relationships in state courts considering issues of state law, and the ultimate arbiter of issues of state law is the Supreme Court of Virginia.  Which members of that court do proponents consider to be activist judges?

3.  Virginia 4 Marriage and its constituent organizations say that the amendment will not adversely affect domestic violence protections, contracts, wills, and hospital visitation (and I agree with much of this interpretation).  Do Virginia 4 Marriage and its constituent organizations commit to opposing as amici curiae any cause of action brought seeking to extend the amendment to adversely affect those perquisites?

4.  In addressing the amendment, proponents often cite their view that activist judges will eventually extend social recognition to other types of relationships.

[E]ach person must meet five criteria in order to get married:

1. You cannot already be married.
2. You must be an adult and marry an adult.
3. You cannot marry a close family member.
4. You must marry a human.
5. Your spouse must be of the opposite sex.

                  Why doesn’t the proposed amendment ban incestuous marriage?  Or marriage between an adult and a minor?  (By the way, the second criterion is not an accurate statement of current Virginia law.  See Va. Code Ann. Secs. 20-48 and 20-49.)

5.  Proponents believe that gay men and women are entitled to marry–as long as they marry a member of the opposite sex.  “In reality, homosexuals have the exact same right to marry as we all do.” Does that mean two married heterosexuals love each other as little (in that marital way) as a gay man would love a heterosexual woman?

6.  “A loving and compassionate society will always come to the aid of motherless and fatherless families, but a loving and compassionate society will never deliberately create them.  Same-sex couples intentionally deny children either a mother or a father, and children need both to develop into healthy adults. Males and females parent differently, and these differences are essential in helping a child grow into a healthy adult.”  Children with one or more gay parents are not deprived of a biological mother or a biological father.  In fact, children seem to be a bit of a red herring in a marriage argument, rather than an adoption argument, because children don’t arise from sex-same relationships; they arise from heterosexual relationships.  And the last time I checked, a man and a woman could produce a child without being married.  But, since the amendment proponents raised the red herring of an issue first, aren’t those social and political forces that want to separate children from their biological, homosexual parent the same forces creating a motherless or fatherless family?  Therefore, by the proponents’ own definition, aren’t such social and political forces neither loving nor compassionate?

August 25, 2006 Posted by | activist judges, Marriage equality, politics of marriage, Traditional marriage | Leave a comment

Domestic Violence Victims Threatened by Passage Of Amendment

Stacy Ruble, Domestic Violence Coordinator for the Virginia Sexual and Domestic Violence Action Alliance, highlights reasons for concern in article published today:

…the threat of having domestic violence protections taken away from unmarried couples is a real one.

“Our concern is for all of those who will be hurt between when the amendment passes and when the Supreme Court makes a decision — that’s if they decide domestic violence laws are OK the way they are,” she said.

“If not, we will need to develop a long-range plan to protect domestic violence victims. In the short term, if it passes we will have to create a plan to address legal battles, educate advocates, legal aid attorneys and Commonwealth attorneys and look at how to serve victims,” she said.

Ruble said the procedure for responding to domestic violence complaints involves a police officer going to the victim’s home, filing a report, arresting the perpetrator and transporting the victim to a safe place, if needed. At that point the victim can get a protective order against his or her abuser, which indicates where the abuser can and cannot go in relation to the victim.

“If domestic violence laws can only cover married couples, the most the police can do is charge [the abuser] with simple assault and battery,” she said. “There is no protective order or transportation to a safe place. If the victim makes it to a shelter, they will stay longer because there is no protective order.”

Ruble said businesses and apartment complexes can file no trespassing charges against an abuser, but they are not as effective as a protective order. “You don’t have an automatic arrest if someone breaks a no trespassing law,” she said.

August 18, 2006 Posted by | domestic violence, unintended consequences | Leave a comment

NAACP Opposes Writing Discrimination Into the VA Constitution Says Dr. Julian Bond

In an oped published in papers around the Commonwealth this week (for example, the Staunton News Leader and the Virginian Pilot), Dr. Julian Bond, chair of the Board of the NAACP, says that the NAACP opposes the Marshall/Newman Amendment and that it should be defeated!

Read more here and here.

Update:  The oped has also appeared in the Richmond Free Press (top of front page 8/24/06), the Roanoke Times and The Connection Newspapers.  Any other sightings?

August 17, 2006 Posted by | discrimination, Marriage equality, politics of marriage | 1 Comment

Meaning of Constitutional Amendment Should Be (but isn’t) Crystal Clear

This just in from the King George Journal Press:


By David S. Kerr

King George Journal 

This November, along with voting on our member of the House of Representatives and the U.S. Senate, Virginians will have a Constitutional Amendment to consider.  This one is designed to ban “same sex” marriage.   It’s a popular notion in the Commonwealth and is generally favored to pass.  However, as popular as it may be, it’s an amendment to our constitution that at best is of questionable need, and thanks to its convoluted language may have some serious flaws.

While its advocates are passionate about the need for a constitutional amendment, they haven’t done all that well in explaining why the state’s constitution needs to be changed.  The General Assembly has already enacted legislation forbidding same sex marriages.  It’s in the statute books, the language is clear, and just like the proposed amendment, it says that the Commonwealth will not recognize same sex marriages from other states.   That piece of legislation by itself, which in conservatively minded Virginia, isn’t likely to be changed anytime soon, should be more than enough.   But apparently, the backers of the ban want to go that extra mile.  Though the “why,” save perhaps to enjoy a little political grandstanding, isn’t altogether clear. 

This isn’t a situation unusual to Virginia.  While, nearly forty states have laws forbidding same sex marriage, another 20, just like we’re getting ready to do, have amended their constitutions.  This year, six other states, besides Virginia will have constitutional changes the ballot.  But in reading the Virginia amendment there seems to be more involved than just a ban on same sex marriages.  Its goes a little further than most other state’s amendments and in the process, if not treading on some serious issues concerning the federal constitution, may be going further in limiting individual rights than even some of its supporters want it to.

After starting off with a specific prohibition against same sex marriage there are a few more sentences that deserve study.  The Virginia amendment says that the Commonwealth, or its political subdivision, will “…not create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.” This is more than just saying that civil unions, a tool used to approximate marriage, are illegal.  It takes it a step further to prohibit individuals from entering into contractual agreements that confer some of the rights and privileges that might be associated with marriage.   This is where it gets sticky.   It’s hard to tell what the writer’s had in mind, or if they really gave it the thought it deserved, but in this case, as with the state law on the subject, they seem to have gone a step too far.

There are a host of legal arrangements, perhaps made by people of the same sex, perhaps not, that have nothing to do with homosexuals getting married.  But they do confer some rights that married people might have.  Does this amendment, for example, make it more difficult to designate someone you’re not married to as your beneficiary in a will or perhaps the person you give authority to in a health care crisis?  The answer is, maybe, possibly, and I don’t know.  The language is just that vague and just that difficult to sort out. 

The implications could be profound if the amendment was improperly applied.  Would it make it difficult for two siblings of the same sex to enter into agreements that might, if you pushed the edge a little, confer at least some of the benefits of marriage?  Say, in the case survivorship or an arrangement between two people where one person might be designated as capable of making decisions for the other if that individual were incapacitated.   That’s an inherent benefit of marriage, and under this amendment, using a separate legal mechanism to confer it on someone else, could potentially be illegal.   Something, that in very non-legal turn of phrase would be absolutely nuts.   

The proponents of the amendment say that arguments like this are distractions.  They say the issue is that it forbids, in absolute terms, same sex unions.  That’s all they want to do.  But unfortunately, since the bill does go that extra mile, and does include this vague bit of language, it does look like an undue infringement on an individual’s right to enter into a contract.   Something, that’s generally considered protected in protected by Article 10 of the Federal Constitution.  

It’s a grey area, but in the case of an amendment to the state constitution the meaning should be crystal clear. 

August 15, 2006 Posted by | unintended consequences | Leave a comment

Vote NO … Getting there One Vote at A Time

This morning Jim Bacon said his “gut” was telling him he should vote NO in NOvember.

And, Vivian Paige took the opportunity to talk with a GEICO representative about the amendment; the reaction was what it always is when the full text of the amendment is explained .. “say what?”  Vivian, let’s hope the person on the other end of the telephone was in Virginia and not another state or country.

We can win this … especially if we all take the opportunity to talk to voters when we can, where we can.

August 12, 2006 Posted by | economic impact, unintended consequences | 1 Comment

Comparing the “Inside”/”Outside” Face of Amendment Proponents

Equality Loudoun discusses the different faces presented (to the public and to their closest allies) by Marshall/Newman proponent, Alliance Defense Fund, an Arizona-based operation that used to be listed as a member of the alliance in support of the amendment in Virginia (that is, before they took the paltry list of alliance supporters off their website).

If I had only saved screen shots of the first web pages posted by proponents of the amendment to compare to today’s sanitized output, some of the same differences in rhetoric would be exposed.


Equality Loudoun has another good post today about how the proponents of the amendment who fiercely disclaim all of our aguments against the proposed amendment will surely flip flop and embrace them if the amendment passes. 

August 12, 2006 Posted by | politics of marriage, unintended consequences | 2 Comments

Not A Little Irony Here

Vivian J Paige has a nice post up today describing the irony of Marshall/Newman proponents accusing vote NOers of using “scare tactics” because we point out that judges will do what judges have already done.  They even call our allies from the domestic violence action alliance “despicable” for doing this.

The irony came from the fact that the source of the usual screed was an opinion piece literally juxtaposed with a newspaper’s editorial detailing the actions of judges in a garden variety child custody case that became anything but routine simply because the people dividing their property and fighting over their child were two parties to a legal civil union in Vermont.

As Vivian points out, under current Virginia law, only gay couples are subject to this kind of threat to family stability, but if the Marshall/Newman amendment passes, all unmarried couples in Virginia will face courts that are required by the constitution to refuse to recognize or enforce their private agreements.

It’s time to put a stop to this stuff and refocus our legislators on the important stuff like good schools, good jobs, safe streets, and roads and mass transit that move people and not just cars.

It’s time to send them a message.

Read it all, and then vote NO on Ballot Question #1.

August 11, 2006 Posted by | activist judges, children, civil unions, straight couples, unintended consequences | 2 Comments

Businesses Say “NO”

Great article in The Connection Newspapers about the business community’s growing awareness and concern about the unintended consequences of the Marshall/Newman amendment.

Here’s a sample of what NOVA business leaders are saying:

 “Our history in Virginia has been about opening doors, not slamming doors shut,” said J. Douglas Koelemay, managing director of Qorvis Communications, a Tysons Corner public affairs firm. “If this amendment passes, Virginia will be a place where doors are slammed shut. That’s not good for business and that’s not good for anybody else either.”

Update: The Connection Newspapers editorial board urges a NO vote in NOvember:

…take a minute to read the first line of the ballot question, and the second paragraph.
The question is whether Virginians want to modify the state’s Bill of Rights to specifically deny rights to certain people, hardly an appropriate use of the Bill of Rights.
The second paragraph is so broad, it is likely to be interpreted by lawyers and judges to create a wide variety of unintended consequences.
The proposed amendment states that Virginia, “shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage.”
This sort of broad language creates uncertainty, and uncertainty in the business world is never good.
We will address other reasons to vote no on this amendment as the Nov. 7 election day approaches.

August 9, 2006 Posted by | unintended consequences | 1 Comment

Monk from Coalition Partner We The People Speaks Out

Linda Monk from Coalition member organization, We the People PAC, had an OpEd on amending the constitution published Monday in the RTD. 

Writing in A Higher Standard: Defending Virginia’s Declaration of Rights, Professor Monk argues that voters must set a high standard for approving any amendment to George Mason’s Declaration of Rights.  Pointing out that Virginia was the first governing body in the world to adopt a statement recognizing and protecting individual rights, Professor Monk says:

Virginia has a higher standard, and a higher responsibility, when changing its cherished Declaration of Rights. As Virginians, we have a special duty to defend the core idea of constitutionalism: that our highest form of law should express fundamental rights, not become a referendum on the issues of the day.

Monk concludes that recent polls confirming voters’ hesitancy to vote to amend the bill of rights shows their good sense.

Equality Loudoun has a good post on Linda’s piece.

August 8, 2006 Posted by | discrimination, limited government | Leave a comment