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?
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