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

This just in from the King George Journal Press:

AN AMENDMENT THAT GOES TOO FAR 

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. 

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August 15, 2006 - Posted by | unintended consequences

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