February 5, 2006
Now that the Virginia legislature has passed the marriage amendment for a second time and the measure is almost certainly headed to the November ballot, Virginia voters should understand exactly what the amendment does.
Although proponents argue that it merely defines marriage as being between a man and a woman, the amendment goes much farther than that. If, as some polls suggest, most Virginia voters favor defining marriage as between a man and a woman but also believe that gay partners should be given equal rights concerning taxes, health benefits, hospital visitation, etc., this amendment runs counter to that belief.
The second and third sentences of the marriage amendment, although vague in certain aspects, are clear about banning civil unions and domestic partnerships between citizens, whether gay or straight.
After stating 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,” the amendment says, “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.”
It continues, “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.”
Putting aside the interpretations that terms such as “qualities” of marriage will engender, it seems certain that any attempt to even the playing field for gay couples will be struck down as unconstitutional if this amendment passes.
Residents of jurisdictions such as Falls Church or Alexandria would be unable to establish domestic-partnership registration, as has been done in dozens of local jurisdictions around the country. Likewise, if Charlottesville determined that it would be helpful to offer domestic partnerships so that the University of Virginia might remain competitive in attracting the best professors and students, it would be stymied.
Though it can be argued that civil unions and domestic partnerships are second-class versions of marriage, it is clear that they nonetheless would be prohibited by Virginia’s vaunted Bill of Rights if the amendment passes. Since when is a Bill of Rights supposed to take a citizen’s rights away?
The implications of this kind of constitutional directive cannot be entirely known, but questionable public policy results already are occurring in Ohio, where voters approved language similar to the proposed Virginia amendment in 2004. The Ohio amendment has generated at least 12 cases challenging prosecutions of domestic violence offenses. Defendants are arguing that the Ohio Constitution prohibits conferring marriage-like rights on unmarried victims of domestic violence.
While I believe that fundamental fairness dictates an equal right for gays and lesbians to avail themselves of the opportunity for civil marriage — which is legal in Massachusetts, Canada, Belgium, the Netherlands and Spain — most Virginia voters may not be ready to join this vanguard. But neither should they close off the opportunity to take gradual steps toward equality.
The Virginia legislature has done its ill work. Now it is up to Virginians to nullify that harm by voting “No” to the marriage amendment.
— Bill Dever
is a member of the rights organization Equality Virginia.