Blogging the Amendment

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

New Jersey Marriage Decision is A Decision For New Jersey; Virginia Unaffected

The Commonwealth Coalition issued the following statement today in response to the decision of the New Jersey Supreme Court in Lewis, et al v. Harris:

The decision in New Jersey is a decision for New Jersey made by a New Jersey court under the New Jersey Constitution and in light of that state’s history and well-established public policy of being in the “forefront of combating sexual orientation discrimination and advancing equality of treatment toward gays and lesbians.” New Jersey’s legislature outlawed discrimination based on sexual orientation in 1992 and discrimination based on domestic partner status in 2004. The legislature passed a domestic partnership act in 2004, the same year that Virginia passed the Affirmation of Marriage Act banning same sex civil unions and domestic partnerships.


Virginia’s sovereignty in our federal system ensures that neither the New Jersey Constitution nor the state’s marriage licensing and domestic partnership laws (like their professional and gun licensing laws) have any effect in Virginia. Virginia has had a law on the books banning gay marriage since 1975 — a law that was strengthened in 1997 to prohibit any recognition for marriages entered into in other states that violate this ban and in 2004 to prohibit recognition of other state’s civil unions and domestic partnerships.


The decision of the New Jersey court does not in any way threaten Virginia law. Moreover, it is just silly to say that the actions of New Jersey judges tell us anything about how Virginia judges will interpret Virginia’s constitution. For one thing, Virginia is the only state in the nation where the legislature has the exclusive authority to nominate and elect all judges. As the former chair of the House Courts of Justice Committee which interviews and determines the qualification of all judges up for appointment or reappointment in Virginia, Attorney General Bob McDonnell well knows that the legislature has not been afraid to fail to appoint or reappoint any person who the legislature deemed “activist.”


Finally, and perhaps, most importantly, the decision of the New Jersey Supreme Court, like the opinions in other recent court decisions in New York and Washington, underscores the important role that the legislature plays in determining public policy as the “popularly elected representatives of the people.” It is, indeed, ironic that a principle effect of the proposed amendment to Virginia’s constitution is that it would take away from the legislature any future role in the process of determining Virginia’s public policy regarding marriage and its benefits, rights, obligations, qualities, significance, design or effects and place those decisions in the hands of judges.


October 25, 2006 - Posted by | activist judges, civil unions, discrimination, politics of marriage

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