Yes, Virginia, This is a Terrible Amendment
Dahlia Lithwick takes on Ballot Question #1 over on Slate today. After stating the obvious .. Virginia already has laws taking away any relationship recognition from same sex couples, she adds this riff on the search for the unicorn, the mythological “activist judge”:
Why the terrific urgency to gild—or should I say, further tarnish—the state’s anti-gay-marriage lily? Its supporters advance a single argument: It’s an insurance policy against “activist judges” who might someday rise up and strike down the many existing state laws banning gay marriage. Last week, the state’s lieutenant governor, Bill Bolling, announced that the “amendment is necessary to protect traditional marriage from possible judicial assault.” Judicial assault from whom? The hemp-wearing, patchouli-burning vegetarians who dominate the Virginia bench? State judges here are exceedingly conservative, having been selected by our exceedingly conservative legislature. A local Web site is carrying out an enthusiastic search for Virginia’s unhinged, liberal-activist judges. They’re proving tough to find.
After pointing out the irony that proponents are relying on these same state court judges to deflect the serious legal consequences forecast by Arnold and Porter in its 70 page tome on the topic, she goes on to conclude with this advice to Virginians:
If you want to protect traditional marriage, fine. You already live in a state that does so in multiple ways. But, before you vote “yes” on this marriage amendment, ask yourself if you’re so afraid of imaginary liberal-activist judges striking down all those laws someday that you want our custody, contracts, medical directives, and domestic-violence laws re-evaluated by the judiciary today. Don’t end your thinking on this issue by asking yourself whether you believe the institution of marriage should be sacred. Instead, ask yourself whether you believe so strongly in its sacredness that you’d turn Virginia into a vast constitutional Noah’s Ark—where only married people are welcome, and the state’s 130,000 unmarried couples are left out in the cold.
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