Blogging the Amendment

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

Dueling Lawyers … If They Can’t Agree … NO is the Common Sense Response!

The non-partisan Virginia Legal Review Committee now includes more than 200 lawyers who’ve lined up to say that they support the 70 page memo written by the law firm of Arnold and Porter that concludes that passage of Ballot Question #1 will have serious adverse consequences for Virginia:

This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state. The language goes well beyond existing Virginia law, which bans same-sex marriage and same-sex civil unions but does not apply to opposite sex couples nor prohibit “recognition” of any “legal status” approximating any aspect of marriage or to which is assigned any marriage-like rights or benefits.


Approval of the Amendment could cause significant disruption to settled legal rights, duties and protections in the Commonwealth, allow those seeking to escape their legal obligations elsewhere to clog our courts, and insert the courts into the private affairs of Virginians. These effects go far beyond the claimed purpose of the Amendment: to reserve marriage for one man and one woman.

Included on the list are Governors Kaine and Holton, the First Lady of Virginia (a former judge), two former Attorneys General of Virginia, a former Republican candidate for Attorney General and Governor, the managing partner of one of the state’s major law firm and more.

And, here’s what the “father” of the 1971 Constitution had to say on the legal issue in C’ville, a Charlottesville Newsweekly:

“I’ve spent my life thinking about constitutions,” says A.E. Dick Howard. “I’ve thought about it a lot, I can at least say that.” The day Howard speaks to a reporter, he has just returned from casting his absentee ballot for the November 7 election. He has a lot to say about why he voted “no” on the marriage question.

“[The amendment is] grand sounding, but as you read it, you say, ‘What in the world does it really mean?’ You think you know what they’re talking about, but you’re not sure, in practice, where it goes,” he says. “It responds to a non-problem.”

Not many people know the Virginia Constitution like A.E. Dick Howard does. How could they? After all, Howard, a UVA law professor, was the executive director of the commission that rewrote the modern Constitution in 1971.

“This is a bad amendment,” says Howard, even for the reported majority of Virginians who believe that marriage should be defined as a union between one man and one woman.

This guy isn’t some flaming liberal hell-bent on shoving gay rights down the throats of red-state America. “I don’t represent the gay rights community,” says Howard.

What he does represent is the wizened elder who has a broader view of the State Constitution—what it should do, and what it has no business doing. And the State Constitution has no business in the realm of marriage, he says.

An older, married gentleman, Howard, who is reticent about his personal politics, is a distinguished professor who has written volumes on Virginia’s Constitution as well as the Magna Carta. His resumé is impeccable, characteristic of the legal elite: Born and raised in Richmond, he got his undergraduate degree at the University of Richmond before going on to a Rhodes scholarship and then UVA law school. He clerked for Supreme Court Justice Hugo Black. He has argued cases before the State and federal supreme courts. In addition to heading the committee that rewrote Virginia’s Constitution, he has served as a constitutional consultant to countries on nearly every continent: Brazil, the Philippines, Hun-gary, Czechoslovakia, Poland, Romania, Russia, Albania, Malawi, South Africa. It’s a respectable record for a man of any political inclination.

“The people of Virginia are properly concerned with the status of marriage and I have no objection to their making that judgment through the statute book,” Howard says. “And if a majority of people of Virginia think that it ought to be defined as between a man and a woman, they’re entitled to that.” But there’s a huge difference between a statute book and a constitution, and everyone casting a ballot on this amendment should consider the difference.

On the other side of the legal debate is the 13 page “opinion” from AG Bob McDonnell, who has voted for this amendment as a delegate, raised money for va4marriage, accepted thousands in direct and indirect campaign contributions from members of the board of the Family Foundation, and campaigned for its passage. 

Who supports McDonnell’s  interpretation of the law?  Is there any non-partisan support for his view?

Today the Family Foundation announced that three former Republican Attorneys General (Gilmore, Earley, Cullen)  have said that they support McDonnell’s view. 

But, where is the rest of the legal community?  In late October, Republicans were trying to get lawyers to sign something saying that they supported the McDonnell opinion.  The deadline to respond was October 31st, then October 25th … inquiring minds want to know what happened to the list?  Perhaps they couldn’t get anyone to sign?  Or so few wanted to align themselves with the AG that it might be embarassing?

No matter what … the bottom line for the average voter is this …

Common sense says that, when the lawyers can’t agree what something means, it doesn’t belong in our constitution. 

The only thing that dueling lawyers get you is lots of litigation that will require state and local government to spend our tax dollars on lawyers and lawsuits instead of schools, roads, health care, crime … the much more important issues of the day!

November 4, 2006 - Posted by | politics of marriage, unintended consequences

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