Delegate Bob Marshall asked for an official opinion from the Attorney General on the impact of the proposed Marshall/Newman amendment, and he got one.
Too bad he didn’t think harder about the context of that opinion and what it would demonstrate.
The opinion issued by the AG is the opinion of one lawyer. It now joins the public discourse on the potential effects of the proposed amendment, a discourse that includes widely divergent opinions. Mr. McDonnell himself stated to us that it is the responsibility of lawmakers to provide the courts with clear, unambiguous language conveying the intent of their legislation. The Marshall/Newman amendment clearly fails that test, since Mr. McDonnell and other lawyers, former Attorneys General, and legal scholars have provided such vastly different interpretations of its language. What these dueling opinions really mean is that 1) no one knows how the amendment would be interpreted; and 2) it’s guaranteed to generate litigation – at great public expense. This is what the Commonwealth Coalition has been saying all along.
The AG states that “any competent individual may enter into a contract, regardless of his marital status,” and that the right to contract “is not a right that finds its origin in the ‘design, qualities, significance, or effects of marriage,’ nor the ‘rights, benefits, obligations, qualities, or effects of marriage,'” therefore the amendment will not interfere with the right to enter into or enforce contracts.
He then goes on to treat wills, advance medical directives, shared equity agreements, and health insurance benefits separately, as discrete contractual rights that do not originate from the legal status of marriage.
As the Arnold & Porter memo points out, though, the term “legal status” is extremely broad, and has been defined as “any combination of rights, duties, liabilities or other legal relations.” The use of the word “or” rather than “and,” as in “the rights, benefits, obligations, qualities, or effects of marriage,” means that any one of some combination of contracts a couple has entered into in order to “approximate” the legal status of marriage could be challenged in a court of law as violative of the public policy of Virginia.
The AG did not address the issue of a combination of contracts that, in the aggregate, would constitute “a legal status that intends to approximate” some attribute of marriage. He was able to sidestep this question, because of course Mr. Marshall did not ask him this question.
Regarding the 2005 extension of the right to offer health care benefits to the domestic partners of private employees, the AG states that “group accident and sickness insurance coverage provided by private companies to its employees and their designated beneficiaries likewise will not be invalidated by the marriage amendment.” [emphasis mine]
He goes on to argue that the General Assembly passed the Small Business Insurance Parity Act “with full knowledge of Virginia’s existing statutory prohibitions on same-sex marriage and civil unions,” and that the General Assembly “is presumed to act with full knowledge of the law as it stands.” This claim is really nothing but sleight of hand, since the amendment language is quite different from the statutory prohibition on civil unions, and the amendment language was not the law as it stood at the time.
At any rate, he is correct in that the amendment would not invalidate the benefit plans of private companies. This is a straw man argument; no one has claimed that it would. However, there is nothing to stop an anti-gay activist organization from suing one of these private companies for providing such benefits to domestic partners, and according to the Arnold & Porter memo “a court or public medical facility could take the position that to give effect to [such workplace benefits] would be to ‘recognize’ a legal status to which is assigned the rights or benefits of marriage.” For public employees, the employer would be a “political subdivision” of the Commonwealth, and such benefits would therefore be impermissible government recognition of a “legal status.”
The AG again failed to acknowledge that there is a difference between a legal status provision for common law marriage (Virginia does not currently have one) and the recognition of common law marriages entered into in other jurisdictions (Virginia currently does). The Arnold & Porter memo states that the amendment would prohibit Virginia courts from continuing to recognize these marriages and from enforcing the rights and obligations that flow from them. There is already a precedent for this interpretation from the ruling in the Miller-Jenkins case, in which a Virginia court refused to recognize legal parental rights that orignated in a Vermont civil union. The amendment language would extend this precedent to ALL unmarried couples, and could result in Virginia becoming a mecca for those wishing to have their legal obligations to spouse and/or children dissolved.
These are just a few examples of the very different legal opinions spawned by the amendment language, all of which only begin to illustrate just how ambiguous and ill-suited it is to be added to our Bill of Rights. There is one significant difference between the two memos, however. An advisory opinion from the Attorney General is supposed to fulfill a quasi-judicial function, so in that sense, this opinion isn’t from “just one lawyer,” but from someone performing a role closer to that of a judge. A judge, however, is bound by ethical guidelines. When is the last time you heard of a judge issuing an opinion in a case on which he had already cast a vote for one side, as well as actively campaigned and raised money for one side?
That is exactly the circumstance of our Attorney General in issuing this opinion, and I invite readers to draw their own conclusions.