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.
A very thoughtful piece by Delegate Steve Shannon that appeared in the Connection Newspapers yesterday reviews the potential for far-reaching unintended consequences from passage of Ballot Question #1 and advises “voters should reject Ballot Question #1 in November.”
Shannon points out the irony that, as drafted, the proposed amendment is an invitation to judicial activism and undemocratic in its ultimate effect:
Since the language first appeared in a conference report — the last day of the 2005 legislative session — constitutional scholars and legal practitioners have struggled to discern a clear meaning of these two sentences. The difficulty is that many of the terms used are not previously defined in our laws with meaningful specificity. Ask 100 people to define the “effects” of marriage or the “significance” of marriage, and you will probably hear 100 different answers.
Confusion over comparable constitutional language can be seen in Ohio, where the courts are wrestling with the issue of whether unmarried domestic violence victims are still entitled to the protection of the state’s domestic violence laws. Ohio trial courts have weighed in with differing decisions, and the issue is now pending with the Ohio Supreme Court, which has yet to render a decision.
If enacted, the untested language in the last two sentences of Ballot Question #1 may lead to unintended public policies being made through judicial decisions. The amendment certainly will leave our citizens without a uniform understanding of rules in important areas such as estate planning and domestic violence protections. Many businesses will be hesitant when considering the types of permissible benefits available to employees.
Finally and perhaps most importantly, citizens will lose their right to petition the legislature to remedy any unintended consequences quickly, as is done perennially with so many of Virginia’s statutes.
David Boaz from the Cato Institute, a libertarian think tank, wrote a strong oped that appeared in the Washington Examiner this morning. The piece was written in response to the Examiner’s editorial favoring the amendment.
Boaz takes on all the shibboleths, including “activist judges,” and concludes that the amendment is nothing more than “bait and switch.”
He then goes on to appeal to the best in all of us:
This amendment goes too far. But even its first sentence — the ban on gay marriage — is unworthy of a state that was the birthplace of American freedom. It is a cruel irony that this amendment to restrict contract rights and exclude loving couples from the institution of marriage is to be added to Virginia’s Bill of Rights, a document originally written by the great Founder George Mason.
Mason’s eloquent words inspired Thomas Jefferson in writing the Declaration of Independence and James Madison in writing the Bill of Rights for the U.S. Constitution. We should not add language to Virginia’s Bill of Rights that would limit rights rather than expand them.
Gay marriage is not legal in Virginia, and there’s no prospect of changing that in the foreseeable future, whether by legislative or judicial action. Ballot Question No. 1 is unnecessary and will create legal uncertainty.
Found some interesting stuff out there, some new some old:
Vivian Paige reprints her OpEd that appeared in the VA Pilot here. Speaking from her vantage point as an African American lesbian, Vivian comments on the use of the Bible to justify writing discrimination into the Virginia constitution and concludes: “Vote No on Ballot Question 1. We should not allow discrimination against anyone to be written into our Bill of Rights.”
Craig’s Musing, Why I Do Not Support the Marriage Amendment
If you haven’t done so, listen to Bob Marshall (sponsor, Marshall/Newman Amendment) Debate Evan Wolfson (Freedom to Marry) at UVA, October 5, Virginia Podcasting Network
Great article and comments about the amendment on Leesburg Today site.
Survey USA poll shows uncertainty abounds, certain NOS up.
In a lengthy editorial published this morning, the conservative Richmond Times Dispatch opined: “On this amendment, as written, we incline against.”
The editorial asks two questions: is the amendment necessary? will it accomplish what is intended? The answers to both are no.
“First, Is the amendment necessary? The answer: Probably not — not now.”
The TD points out that gay marriage and civil unions are already illegal in Virginia and that the Federal Defense of Marriage Law protects Virginia from any forced application of other states laws that conflict with ours.
“Second, What would the amendment accomplish? The answer: Probably not what is intended.”
The TD points out that contrary to getting judges out of the business of defining marriage, the amendment, as proposed, has exactly the opposite effect:
“If adopted, would the amendment enable the most mischievous judges to find in the amendment’s second and third sentences whatever meanings they might choose? In seeking to make it more difficult for judges to invalidate Virginia’s laws regarding marriage — laws not under current onslaught — would the amendment actually make it more difficult for the legislature to correct a wacky judiciary’s crazy spins on the amendment’s language?”
Like The Commonwealth Coalition itself editorial opinion around the state is divided in its reasons for doing so but united in saying NO to Ballot Question #1!
Whether you are for full marriage equality or merely against messing around with our constitution in ways that will result in nothing more than litigation and unbridled judicial intervention in our most private decisions, one thing is clear: the right answer to Ballot Question #1 is NO, NO, NO, a million times NO.
Here’s a great comment by L.C. from a thread on Republitarian’s blog that explains why marriages in NJ and any other state do not jeopardize Virginia marriage laws:
Virginia does not need this amendment. Lawyer Jonathan Rauch says: The Full Faith and Credit clause (Article IV, Section 1) does require states to honor one another’s public acts and judgments. But in 1939 and again in 1988 the Supreme Court ruled that the clause does not compel a state “to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Dale Carpenter, a law professor at the University of Minnesota, notes that the Full Faith and Credit clause “has never been interpreted to mean that every state must recognize every marriage performed in every other state.” He writes, “Each state may refuse to recognize a marriage performed in another state if that marriage would violate the state’s public policy.” If Delaware, for example, decided to lower its age of consent to ten, no other state would be required to regard a ten-year-old as legally married. The public-policy exception, as it is called, is only common sense. If each state could legislate for all the rest, American-style federalism would be at an end. See http://www.theatlantic.com/doc/200404/rauch
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.
Barton Hinkle, conservative columnist for the Times Dispatch, has this to say about today’s McDonnell opinion on his blog:
as I’ve pointed out before (in the May 16 column, “Could a Judge Misinterpret the Marriage Amendment?”), the advocates of the amendment seem to have painted themselves into a logical corner.
If the threat to traditional marriage from activist judges is so dire that existing statutory language banning gay marriage is not sufficient, then what is to prevent those same (unidentified) activist judges from misinterpreting the marriage amendment and invalidating existing statutory language on other topics? Judges elsewhere have ruled that state marriage amendments invalidate the protections of spousal-abuse laws for unmarried persons, for instance.
McDonnell says he can “find no legal basis for the proposition that passage of the marriage amendment will limit or infringe upon the ordinary civil and legal rights of unmarried Virginians.” But what’s to stop an “activist judge” from doing so?
Good question? Answer… nothing!
We’ve often said over here at The Commonwealth Coalition that some of our strongest supporters are limited government Republicans, true conservatives who respect the rule of law and revere our constitutional system of government.
Writing in the Washington Post on Tuesday, sitting 4th Circuit federal court of appeals judge and oft-mentioned candidate for appointment to the US Supreme Court, J Harvie Wilkinson, argues passionately against using the federal and state constitutions to make social policy about marriage.
Repeating one of The Coalition’s arguments — that it’s just wrong to use Virginia’s bill of rights to take away rights — Wilkinson says:
The Framers meant our Constitution to establish a structure of government and to provide individuals certain inalienable rights against the state. They certainly did not envision our Constitution as a place to restrict rights or enact public policies, as the Federal Marriage Amendment does.
Ordinary legislation — not constitutional amendments — should express the community’s view that marriage “shall consist only of the union of a man and a woman.” To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country’s founding charter as their own.
Is it too much to ask that judges and legislatures acknowledge the difficulty of this debate by leaving it to normal democratic processes? In fact, the more passionate an issue, the less justification there often is for constitutionalizing it. Constitutions tempt those who are way too sure they are right. Certainty is, to be sure, a constant feature of our politics — some certainties endure; others are fated to be supplanted by the certainties of a succeeding age. Neither we nor the Framers can be sure which is which, but the Framers were sure that we should debate our differences in this day’s time and arena. It is sad that the state of James Madison and John Marshall will in all likelihood forsake their example of limited constitutionalism this fall. Their message is as clear today as it was at the founding: Leave constitutions alone.
We couldn’t agree more!
Update: Good discussion on the Judge’s oped over on national lawblog, Volkh Conspiracy.
See also Rick Sincere’s Thoughts.
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?