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.
If you’ve got an hour to spend, watch Mark Levine debate the amendment on his Inside Scoop show. You’ll definitely learn something about the amendment and about debating!
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.
In today’s Richmond Times Dispatch, Delegate Dwight C. Jones, Jr.described Ballot Question #1 as a “gimmick” and an effort to divert people of faith from “the hard work necessary to address the truly important and pressing problems of the day.” Here’s some of his message:
There is no need to vote yes on Ballot Question No. 1 simply to pass another law making what’s already illegal more illegal. And there is no need to put language in our Constitution that has significant potential for unintended consequences, particularly when to do so sets us on the path of affirming that it is OK to use the Virginia Constitution to take away rights — a path that could lead right back to our door.
THERE IS no question that the institution of marriage is in trouble and that families, particularly families in the African-American community, are in need of spiritual renewal and focused community support. My faith teaches me that marriage is a sacred institution reserved to one man and one woman, and I have no doubt that it is important to the health of our communities and to our children that we do all we can to shore up both marriage and families. But we need to remember this instruction from the New Testament: “Render unto Caesar the things which are Caesar’s, and unto God the things that are God’s.” Marriage is an institution of God, and no secular law can threaten nor define that which is of divine design.
We also need to be clear that this amendment is not the panacea, the cure-all, for the ills in our society that many of its advocates claim — and I take umbrage that this political issue has been characterized as an issue of faith.
This amendment is nothing more than a gimmick intended to divert people of faith and all Virginians, including our elected officials, from the difficult work we need to do to address the real issues that threaten families and marriages in our communities — homelessness and lack of affordable housing, poverty, crime, lack of education, lack of economic investment and development, inadequate health care, and transportation policies that continue to focus on moving cars and not people.
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.
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.
Say No to Fear of The New World
On the eve of the Commonwealth’s celebration of the 400th anniversary of the founding of Jamestown, our Republican-dominated legislature has tendered to the voters its idea of an appropriate way to commemorate that watershed historical event: Ballot Question No. 1, the proposed Marshall/Newman Amendment, which is often deliberately mislabeled by its proponents “the Marriage Amendment,” apparently in the hope of obscuring the significant fact that a far greater number of Virginians will be affected by its second paragraph, which prohibits civil unions and domestic partnerships for straight and gay unmarried couples alike, than by its relatively less controversial first paragraph, which simply declares that marriage shall consist only of a union between one man and one woman.
The op-ed piece in opposition to Ballot Question No 1 recently published in The Roanoke Times which was written by my old friend, and one of my many wonderful Republican mentors, former Sixth District Congressman M. Caldwell Butler, brought tears to my eyes. First, because I was so gratified to see the persistence to this day of the political courage, intellectual honesty, and incorruptibility which Caldwell Butler demonstrated as a freshman GOP Member of the House Judiciary Committee back in 1974 when he sadly but wisely voted to impeach Richard Nixon, a president of our own Party.
Second, because anyone who was ever as proud to be a Republican as I used to be can only weep at the depths to which this once-great instrument for political reform and social justice has fallen in modern times as a result of the Faustian bargain which it made a couple of decades ago with the Commonwealth’s most narrow-minded and backward-looking elements in order to savor long-sought but long-elusive electoral victories.
When I was a teenager, under the influence of a loving Republican father and a loving Democratic mother, I was drawn to admiration and support of two great Republicans who had gained the respect and the votes of both of my parents: Dwight D. Eisenhower and Radford Republican State Senator Ted Dalton. I remember like it was yesterday being held on my father’s shoulders in the huge crowd that assembled excitedly in South Roanoke Park, now the River’s Edge Sports Complex, in 1952 to hear General Eisenhower deliver his stump speech from the back of a railroad car which pulled to a stop on the track which still runs right beside the park, and I remember the adoration of the crowd, people screaming and nearly sobbing with joy that the architect of the Allied Victory in Europe was actually here, in Roanoke, such a Great Man.
A couple of years later, when I went with my parents to a performance of the Ringling Brothers Barnum & Bailey Circus under the Big Tent erected in the field between Victory Stadium and our old baseball stadium, Maher Field, I remember that at the end of one of those three-ring galas, with acrobats and clowns and elephants parading around in all directions, with all due pomp and pageantry and music and just plain circus noise, there came a time of finale, of climax, when in the center ring three great curtains fell to the ground, revealing three slowly revolving huge portraits of our now President Eisenhower, one image showing him in uniform, one in an academic cap and gown in recognition of his service as president of Columbia University, and one with just plain “Ike” grinning from ear to ear in simple business suit.
And as before, the entire crowd exploded with cheers and applause, because he was, after all, not only our President, but our hero. Among other things, you may remember, Dwight Eisenhower had said, “I will go to Korea,” and “this war cannot be ended by those whose miscalculations brought it about,” and he had gone to Korea, and he had ended that war.
When I was 10 or 11, my Daddy introduced me to a tall, lanky, well-liked member of the Shenandoah Club (which Daddy managed after he returned from service in the Army in WWII), an impressive red-faced man with a deep, seemingly godlike voice, who was, in fact, State Senator Ted Dalton of Radford. All of the Club members thought he not only looked like a Governor, but that he should and might become one. He lost when he ran for that office the first time in 1953, but not badly, getting a surprisingly large vote for a Republican in Byrd-dominated Virginia, but it was his second try for the job which most stands out in my mind.
By the beginning of Senator Dalton’s second gubernatorial campaign in 1957, I was a sophomore at Roanoke Catholic High School, and I was quite excited by the newspaper reports which said that Senator Dalton might actually win the election and become Virginia’s first Republican Governor since Reconstruction. But in the fall, during the height of the campaign, President Eisenhower sent Federal troops to enforce the order of a Federal judge to de-segregate Little Rock Central High School in Arkansas, and the Dalton campaign just sort of splattered against the sidewalk of that school, doomed without question to defeat in the November election.
Ted Dalton raised some questions about President Eisenhower’s actions, as I recall it, but one thing he absolutely did not do was to embrace in response to his own acute political crisis the reprehensible, anachronistic, and thoroughly illegal policy of “massive resistance” to school integration which the Virginia Democratic Party, at the insistence of Senator Byrd and his lieutenants, made State policy until it was simply no longer tenable.
I remember one of the national news magazines, Time, or Newsweek, or U.S. News & World-Report, running a recap of the Virginia gubernatorial race “after Little Rock,” and showing two pictures, one of the man about to become Virginia’s next Governor, J. Lindsey Almond, who had vowed to “cut off his right arm before a single black child would ever set foot in a white school,” bearing the caption, “In victory, no solution,” and the other of a still smiling and still red-faced Ted Dalton riding in the back seat of a convertible down the Main Street of some Virginia town whose citizens were no doubt getting ready to vote resoundingly against him, with the caption “In defeat, no shame.”
Forgive me some patent speculation, but in my heart of hearts I cannot believe that, if they were here today with the same values they demonstrated during their lives, either Dwight David Eisenhower or Ted Dalton would vote for Ballot Question No. 1. Of course I can’t prove that, but I do believe it.
Nor do I believe that any of the brave men and women who with their children boarded those boats in England and sailed so very far across the intimidating Atlantic to a completely New World, ready, willing and able to take their chances here, in the faith but certainly the hope that whatever was on this side of the ocean would be better, or could be made better, than what they were leaving behind.
Those were people who were willing to go to great lengths, and eventually would in fact endure great personal hardship and suffering, to do everything in their power to create a better New World, fully aware that they had no assurance that they could do it. But they came here, their backs facing England and their hopes facing Virginia, and they landed, and they and their descendants toughed it out, and they prevailed.
There is always some Old World needing to die because it has served its purpose, outlived its usefulness, and now dampens creative, curious, ambitious minds and spirits, and which therefore must be left behind, first, of course, by the most bold and courageous among us, if the human race is to continue on its upward path toward whatever end God intends for us.
There is always some New World beckoning to those with the stoutest of hearts and the most burning curiosity to see what better things may be out there beyond the horizon, just waiting for human intellect and persistence to bring them to fruition.
The Republican Party of Virginia was once a valuable, indeed indispensable, instrument for innovation and reform in Virginia. With great regularity we used to hold racially integrated dinners and other meetings at the Hotel Roanoke and other venues, in flagrant violation of the State’s immoral and unconstitutional laws against integration of public gatherings. We opposed the Democratic Machine’s use of poll taxes and blank paper registration rather than fill-in-the blank forms, all for the clear purpose of suppressing registration and voting by the poor, uneducated, and illiterate, i.e., poor whites and, of course, blacks.
Governor Linwood Holton, who, rather than that great, good, courageous Senator Ted Dalton, turned out to be Virginia’s first Republican Governor in modern times, made a point of enrolling his children in integrated public schools in the City of Richmond rather than any of the still segregated private schools which, as a highly successful lawyer, he could easily have afforded.
We do not have to speculate about how Governor Holton would vote on Ballot Question No. 1, because, thank God, he is very much alive, and like Governors Chuck Robb and Mark Warner and Tim Kaine, and former Congressman Caldwell Butler, he has stated emphatically that he intends to vote NO!
My wife Mary and I were there on the steps of the Lincoln Memorial in 1963 when the Reverend Doctor Martin Luther King, Jr., decorated and dignified American history by declaring “I Have a Dream.”
Truly not meaning any conceit, I follow his lead in saying that I, too, have a dream: It is that the once grand, progressive, reformist Republican Party of Virginia will soon learn how to let loose of the ferocious tiger that it has had by the tail for too long now, which is the disproportionate influence of backward-looking religious extremists who insist that everyone must live the same way, the way the extremists choose for us all to live, and no other.
Yet, at a time when more Americans than at any time in our history choose, for their own personal reasons, not to enter into traditional marriage, when credible polls show that already 59% of Virginians favor allowing civil unions, when even President George W. Bush has said publicly that he is not opposed to allowing States under the Federal Constitution to create civil unions as an alternative to traditional marriage for same-sex couples like Mark and me who wish to express to the world their love and fidelity and commitment.
Ballot Question No.1 would amend the Bill of Rights of the Virginia Constitution authored by George Mason in order to deprive the General Assembly of the power to respond to modern changes in domestic living arrangements, which may or may not in time prove satisfying and utilitarian to those who adopt them, but which are certainly not necessarily harmful just because they represent changes.
That is no way to celebrate, of all things, the 400th anniversary of the founding of Jamestown. I urge my fellow Virginians, including Republicans who may at this moment still feel a need to follow their consciences only in the secrecy of the voting booth, but whose Party, if the amendment is defeated, will be the most direct beneficiary of the reduction of the undue influence of those ever-fearful souls–to be pitied rather than despised–who have never been blessed by God with the vision and courage of Jamestown’s founders—the folks who are always back on the shore of the Old World, staring without comprehension at those who lift anchor and sail away toward something new and, they hope, better.
I urge all of my fellow Virginians, regardless of Party, who want to know just what it was like to enjoy the thrill of supporting Ted Dalton, whether he won or not, just because he was so very, very right on the most burning social issue of his day, in utter disregard of the ire of the staunchest defenders of the Old World that was then a-dying, to join me on November 7th by voting NO to Ballot Question No. 1, by taking this, the best chance they may ever have in their lives to vote NO to fear of The New World.
Sam Garrison lives in Roanoke, is a former Commonwealth’s Attorney for the City of Roanoke, and is now a member of the State Central Committee of the Democratic Party of Virginia.
Yesterday Lowell at Raising Kaine posted a diary where he shared the stories of several Virginians who were concerned that the possible passage of the Marshall/Newman Amendment – Ballot Question 1 – would drive good Virginians from the Commonwealth.
I know that Virginians are concerned that our leaders in the General Assembly have placed us on the wrong path. I know that they are concerned for their futures, and I know that they are sad to see our Commonwealth consider the enactment of a law which will discriminate against their fellows, rather than include all of us as equals in society.
I’ve lived in Virginia nearly all my life. I love this place, and my profession would make it difficult to move. But damn, sometimes it’s tough.
I maintain because I know so many people of good will in this state – Republicans and Democrats – who understand that orientation has nothing to do with ability or worth.
I maintain because I know that this state’s history is unique in the nation. Virginia chartered America’s liberties, then worked most strongly to restrict them, and finally began the process to redeem itself by electing a leader from the ranks of the formerly disenfranchised. Virginia is America.
I maintain because I know that even my opponents know that human rights will not be denied, and that love and aspirations cannot be contained.
People – friends of mine – have left Virginia since 2004 because of the relentless assault upon honest, hardworking, productive Virginians which has been perpetrated by the right wing cabal led by Bob Marshall, Steve Newman and Kathy Byron. No Virginian sued to legalize same-sex marriage. No Delegate or Senator introduced a bill to do so. No judge ruled that it was possible. And yet these ideologues chose to disparage productive Virginians and endanger the well-being and relationships of every unmarried citizen, all for political gain.
This makes me angry, but it doesn’t make me despair. I know that this amendment will fail because Virginians – a conservative people – do not want government to interfere in their families.
I know this amendment will fail because Virginians – a proud people – do not want to stain their Bill of Rights with a statement of intolerance.
And, I know this amendment will fail because we – true Virginians – have had enough. We’re going to make certain that we do all we can to get our voters to the polls on November 7, to vote down this mean-spirited and harmful amendment.
Vote No. Vote No for yourself, and Vote No for your fellow Virginians. We all deserve nothing less.
Chair of Virginia Legislative Black Caucus, Democratic Leader of House of Delegates and former Democratic Candidate for Attorney General Join Those Voting NO on November 7th
On Wednesday, October 18, 2006, Delegate Franklin P. Hall (Democratic Leader of the House of Delegates), Delegate Dwight C. Jones (Pastor of the First Baptist Church and Chair of the Virginia Legislative Black Caucus) and Delegate Donald A. McEachin announcedthat they will be voting NO on NOvember 7th. All had previously voted yes during legislative consideration of the proposed amendment.
Delegate Jones said: “It is clear to me that the amendment to our bill of rights proposed in Ballot Question #1 is not necessary
Delegate Hall added: “This amendment, with its vague and ambiguous language is much too broad. No one can say what the courts will do with this new wording or how they will rule in given cases; what is a sure thing, however, is that the outcome will be unpredictable and may involve many families and businesses in unnecessary lawsuits.”
Delegate McEachin said: “I came to the decision to oppose this amendment after much prayer and careful consideration. Like the blind man cured by Jesus, even after much prayer, the first time I looked at this amendment, I didn’t see its breadth or its basic meanness. Only after I was touched a second time, was I able to see this amendment in its true light. This amendment to the Bill of Rights is wrong for Virginia and wrong for our constitution.”
Hall, Jones and McEachin were joined at the press conference by three other members of the Virginia Legislative Black Caucus who have consistently opposed the proposed amendment, Senators Henry Marsh and Benjamin Lambert and Delegate Jennifer McClellan.
M. Caldwell Butler
Former Republican Congressman from the 6th Congressional District and former Minority Leader of the House of Delegates
Don’t need to say much more than that … but here’s some more of what he said in an OpEd published in the Roanoke Times today:
Every voter at the polls on Nov. 7 will be provided with an “explanation.” The last paragraph of the “Explanation” of “Ballot Question Number 1” reads:
“A ‘yes’ vote on the proposed amendment will result in the addition of the proposed section 15A to Article I, the Bill of Rights. A ‘no’ vote will mean that there will be no changes made in Article I, the Bill of Rights.”
If a voter is considering a “yes” vote and determined to make this language a part of the Bill of Rights, he or she might inquire: “What right is created?” Certainly, no right is created in the first paragraph of the proposal, which reads: “That only a union between one man and one woman may be a marriage valid or recognized by this Commonwealth.”
Clearly, this is not a right. It is going the other way and the wrong way!
Simply stated, the proposed language (which is mean-spirited, unwarranted, poorly drafted and already in the code itself) does not belong in the constitution of Virginia, and certainly nowhere in our Bill of Rights.
Vote “no” on Proposed Amendment No. 1 to the constitution of Virginia.