Marriage Measure Is an Amendment Too Far

This article appeared on on October 30, 2006.

There's never been a same-sex marriage in Virginia, and they've been outlawed by statute for more than 30 years. So why are Virginia voters being asked to vote on a constitutional amendment to ban gay marriage?

Mostly because it's a bait-and-switch game. The proposed Ballot Question No. 1 is far broader than a simple ban on gay marriage.

Supporters say the amendment is needed in order to prevent activist judges from unilaterally changing the definition of marriage. But no liberal activists have yet been sighted in the Virginia judiciary. And that's no surprise because judges in Virginia are selected by the same legislature that has repeatedly passed bans on gay marriage, civil unions and domestic partnerships, including this proposed amendment.

In fact, Virginia is one of only two states where the legislature directly appoints judges to the state courts, including the state Supreme Court. It is inconceivable that Virginia judges, including four members of the Supreme Court, are going to impose gay marriage on the state. Virginia is not Massachusetts nor Vermont or New Jersey, and our judges are certainly more conservative than those in New York, where the high court recently upheld the state's ban on gay marriage.

The irony in Virginia is that conservatives fearful of an out-of-control judiciary are in fact inviting the judiciary to get involved in micro-managing family law. Take a look at the actual text of what journalists are inaccurately calling "the proposed ban on gay marriage."

The first sentence of the amendment reads:

"That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions."

That sentence is what amendment supporters want you to read. But read the rest of it:

"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." [emphasis added]

Note the italicized words. The use of the word "or" makes this a very broad law.

Supporters of the amendment rely on the assurance of Virginia Attorney General Robert McDonnell that passage "will not affect the current legal rights of unmarried persons."

But lawyers disagree. The firm of Arnold and Porter issued a 71-page analysis of the amendment coming to starkly different conclusions. Their lawyers concluded that the amendment could be interpreted by Virginia courts to invalidate rights and protections currently provided to unmarried couples under domestic violence laws, block private companies from providing employee benefits to domestic partners, and prevent the courts from enforcing child custody and visitation rights, as well as end-of-life arrangements, such as wills, trusts and advance medical directives, executed by unmarried couples.

The firm went on to say: "This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state."

We should not pass constitutional amendments whose effects are so uncertain. A simple ban on gay marriage would be redundant, but it would have the virtue of clarity for the courts. The actual amendment invites judges to review every private contract, every employee benefit, every legal arrangement between unmarried partners.

That should be anathema to opponents of judicial activism. It should also be a frightening prospect to Virginia businesspeople. A growing number of companies are offering benefits to the domestic partners of gay employees, and they will want to locate in states where those benefits are clearly legal.

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.

David Boaz is executive vice president of the Cato Institute and author of Libertarianism: A Primer.

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