Dueling lawyers

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.

Let’s compare the AG’s 13-page advisory opinion with the 70-page legal memo issued by Arnold & Porter, LLP (an executive summary is also available) on just a few points.

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.

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16 Responses to Dueling lawyers

  1. jacob says:

    I asked a question in the midst of the debate back in ‘your’ post on NOVA Townhall. I was wondering if you missed it.


    Or, are not willing to answer it. Just curious.


  2. Jack says:

    I read it (the memo). In the interest of full-disclosure, it seems to ahve been written for VoteNoVA. Much of it is a considerable stretch, especially the part about “domestic partners who qualify as tax dependents.” Wouldn’t that be incest?

    Anyway, much of the document discusses the effects on unmarried heterosexual couples. Since they choose to forego the benefits of marriage, that entire discussion is irrelevant.

    The dicussion on wills and trusts is interesting, but since one can set up a trust or will with anyone or anything, including pets, as the benficiaries, naming a domestic partner as the beneficiary hardly approximates marriage, any more than it approximates being a pet.

    The part about a hospital denying care to an insured domestic partner is also specious. No hospital is going to refuse any patient with insurance. They need the money to cover the uninsured that they are forced to treat.

    Only one part was interesting, if also specious. That was visitation rights of non-related individuals. A case is discussed in which a female-female couple, joined in a civil union in VT, had a child via artificial insemination. Of course, only one can be the biological parent. When they broke up, they agreed that the woman who was not the child’s mother would have visitation rights. Then, the mother moved to VA, and went to court to prevent the visits. The judge granted her request, saying the civil union under which the visitation rights were granted was not recognized in VA, thus the visitation rights were also not recognized. I think the case was wrongly decided. The well-being of the child should be paramount, as VA law dictates. The judge apparently made no determination of the benefit or detriment that such visits would have for the child. These cases should be based on such determinations, and those determinations would not be affected by the Amendment.

  3. Jonathan says:


    Equality Virginia is the LGBT statewide lobby organization. You can find answers to your questions about legislation and lobbying there.

    Jack asks,

    “Wouldn’t that be incest?”

    The analysis is written by lawyers experienced in family law and real-world cases. The issue with other legal statuses is not that the state will prevent people from entering into contracts, it’s that the contracts will be open to challenge.

    The Miller-Jenkins case was decided against the best interest of the child because the court relied on the statute created by the anti-gay bill HB751. If you oppose that court ruling, you definitely should vote NO! on NOvember 7.

    If your interest is in safeguarding children, you must review the report issued the the American Academy of Pediatrics “The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-Being of Children” which you can find here.

  4. Jonathan says:

    Here is further proof that any gains made by our community will be challenged. Live, from New York:

    Four Westchester County residents, backed by an Arizona-based conservative group, claim in a lawsuit filed last week that Hevesi acted illegally when deciding in 2004 that the state retirement system would consider same-sex Canadian marriages in the same manner as traditional marriages. Under Hevesi’s decision, surviving same-sex partners from Canadian marriages could in certain cases be eligible for accidental death benefits or cost-of-living adjustments from the system.

    The Arizona-based conservative group is the Alliance Defense Fund, the legal arm of Focus on the Family. The smelly red-herring throwing organization VA4Marriage is also associated with Focus on the Family.

  5. Jack says:

    > Jack asks, “Wouldn’t that be incest?”
    > The analysis is written by lawyers experienced in family law and
    > real-world cases. The issue with other legal statuses is not that
    > the state will prevent people from entering into contracts, it’s
    > that the contracts will be open to challenge.

    You missed my point. Let me rephrase the question: “How can a domestic partner also be a dependent under federal tax law without the relationship’s being incestuous?”

    > The Miller-Jenkins case was decided against the best interest of
    > the child because the court relied on the statute created by the
    > anti-gay bill HB751. If you oppose that court ruling, you definitely
    > should vote NO! on NOvember 7.

    I disagree with the decision because the judge did not use the criterion set out in VA law. That criterion, the psychological welfare of the child, would not be affected by the VA Marriage Amendment, so the Miller-Jenkins case is irrelevant to the discussion.

    I have read the report you cite. Thank you — the bibliography points me to many papers I am interested in reading, and I did not know where to look. I will need to dig into that reference material before I can respond properly. (I have access to many of these journals through GMU.) Unfortunately, Psychology is worse than my own field, Astrophysics, in following the scientific method. Controlled experiments are essentially impossible in both fields (as well as in Sociology and Economics). At least in Astrophysics, the process of observation does not affect the object of observation.

  6. Jonathan says:

    I understood Jack’s question perfectly. He seems to think that he’s not only an expert in souls and sin, but also in legal scholarship. In the case in point, Virginia judges invalidated a clause in Arlington county’s domestic partner benefits language because the gay-friendly county attempted to extend benefits to domestic partners who were not federal tax dependents. Jack seems to think that domestic partners always have IMMORAL SEXUAL RELATIONSHIPS. If somebody becomes incapacitated and can no longer earn wages, a relative can take care of them and claim them as a dependent. They can also claim them as a domestic partner and obtain insurance coverage in Arlington County. The county doesn’t require proof that domestic partners are HAVING SEX!

    No additional comments on Miller-Jenkins. The judge ruled. He used the HB751 statute. The amendment goes even farther and could be used by unmarried or common-law married couples looking for a sympathetic judgements in a custody disputes.

  7. Jack says:

    Just testing blockquote, to use it in a post.

    This should be in blockquote.

  8. Jack says:


    Re. Arlington County:

    I contacted Arlington County’s Human Resources office. A disabled dependent is eligible for coverage under the family health plans. There was never a need to claim someone as a “domestic partner” to get coverage.

    How would YOU define “domestic partner”? (If there is no sex, we call them “roommates.”)

    According to Minneapolis, which offers domestic partner benefits, a domestic partners “[are] committed to one another to the same extent as married persons are to each other, except for the traditional marital status and solemnities.” Since a marriage is not consummated unless there has been sex since the marriage was entered into, sex is required to meet the above definition. (I actually knew a guy who got an annulment after a year of marriage, becuase he could prove that they had not consummated the marriage.)

    A dependent may be, according to the Internal Revenue Code, “[an] individual… who, for the taxable year of the taxpayer, has as his principal place of abode the home of the taxpayer and is a member of the taxpayer’s household,” with the proviso that “[an] individual is not a member of the taxpayer’s household if at any time during the taxable year of the taxpayer the relationship between such individual and the taxpayer is in violation of local law.”

    Since cohabitation, as defined in VA Code 18.2-345, is illegal in VA, a cohabitant cannot be a dependent. So to be a dependent, one must be related to the taxpayer. Thus, being a domestic partner and a dependent requires that incest has occurred.

    Re. Miller-Jenkins:

    The judge ruled incorrectly. The used HB751 properly to invalidate the Civil Union, and the visitation agreement upon which it was based. That’s fine. However, VA law says:

    16.1-278.15. B. In any case involving the custody or visitation of a child, the court may award custody upon petition to any party with a legitimate interest therein, including, but not limited to, grandparents, stepparents, former stepparents, blood relatives and family members. The term “legitimate interest” shall be broadly construed to accommodate the best interest of the child.

    HB751 has no bearing here, becuase the legal status of the individuals does not matter. The judge misused HB751, and could similarly misuse the Marriage Amendment. But that is the fault of the judge, not the Amendment.

    Does that make sense?

  9. Jack says:


    I messed up the end of the blockquote. Can you fix it?



  10. David says:


    I fixed your blockquote. Is that how you wanted it?

    The judge in the Miller-Jenkins case heard all of the arguments you are making, and more – specifically that to rule the way he did would violate the federal Uniform Child Custody law – and he said when he handed down the ruling that “this case is exactly the sort of case for which the Affirmation of Marriage Act was intended.”

    Whether one thinks he misused the law or not, why would we want to deliberately hand over a blunt weapon like the amendment language for vindictive parents or other family members to use? It really serves no compelling public policy interest.

  11. Jack says:

    Yes! Thank you, David.

    I hope and expect that he will be overturned. The VT S.C. has already ruled (Aug 4th) that the VA judge had no jurisdiction (http://overlawyered.com/cgi-bin/mt/mt-tb.cgi/2025). I believe that the case is also before the VA Court of Appeals, which has been waiting on the Vermont ruling before issuing its own.

    Either way, the Marriage Amendment will have no effect. If it comes out that Vermont has jurisdiction, then the VA Marriage Amendment will not matter. If VA has jurisdiction, HB751 either doesn’t apply, or it does. If it does not apply (and I think it doesn’t) the Marriage Amendment won’t either. If it does apply, the harm is already done by HB751, and the Marriage Amendment still won’t make a difference.

  12. Jonathan says:

    Jack, the anti-gay family scholars will claim – as argued by many proponents of the amendement – that the abstract model of gender-bipolarity is best for the child. See Focus on the Family’s Refuting Points No One is Making where they basically say (in consonance with your “no sin” line) that same-sex headed families should not exist. Given your alignment with the argument that we are going “straight to hell”, I find your reasoning incongruent. If you really believe that the child is best served by two female parents, you definitely must vote NO, as the amendment will negatively affect all same-sex headed households with children. See the AAP study.

    If you would like to overturn the Miller-Jenkins ruling, you can donate to Lambda Legal.

    An answer to your Arlington County query is contained on page 68 of the PDF.

  13. Jack says:

    I said the judge decided wrongly. He used the wrong criterion for his decision. That is what should be overturned. I do not know whether the child is better off being visited by the unrelated woman. Each case must be decided on the specifics of the child’s situation. They may overrule the judge, but still say that it is in the best interest of the child not to have such visits. I could not disagree with such a decision without knowing the specifics of the case.

    Since she has the backing of the ACLU, I suspect she has plenty of money for her legal defense.

    As for Arlington County, I made no query. Only a statement: that a domestic parnter cannot also be a dependent as defined by the Internal Revenue Code. Any household member, adult or not, for whom the taxpayer provides more than half of the support, may be claimed as a dependent by the taxpayer, unless their relationship violates local law. Since a domestic parnership relationship is illegal under VA Code 18.2-345, a domestic partner cannot be a dependent. As such, Justice Kinser’s argument on page 69 completely falls apart, because he is discussing a class of people (domestic partners who qualify as dependents under the IRC) that does not exist in VA.

    As for disabled relatives, the A&P memo makes no mention of disabled dependents; you did. A disabled dependent of any age or relationship is covered under the “family” medical coverage for Arlington employees, if the disablility occurred before age 19, and if the dependent is certified as disabled by the insurance company.

  14. Jonathan says:

    A young “Scriptual literalist” came to one of our church services and explained to us that our problem is that we attempt to apply the Bible to objective reality. Instead we need to shape reality with the Bible. This type of thinking is disasterous, and it’s good to know that Jack is studying to be a space scientist since if his calculations show that there is dark matter in the universe (there is – in Bob Marshall’s brain) , it won’t mean a hill or beans to us. Jack tenaciously holds fast to odd and wrong beliefs that have nothing to do with the facts.

    Let’s go over this one more time.

    1. The amendment would permanently forclose on the ability of any state institution (University, hospital, department…) or any locality to offer domestic partner benefits. The existing statute currently forbids these benefits, but statute can be overturned by the legislature. Constitutional amendments are more permanent. This issue demonstrates why the language of the amendment is so terrible. It’s not about marriage. It’s about imposing a religious-right view of sex and sin on all Virginians.

    Jack has his panties all wadded up over a sentence in a proposed Arlington County benefits policy that said a domestic partner may be a tax dependent. He has conflated “domestic partner”, which from the point of view of the policy is a legal status that provides an entire benefits package with one aspect of that package, health benefits. Jack’s sexual obsessions seem to be clouding his reading comprehension.

    2. The Miller-Jenkins case demonstrates how two laws can conflict. The judge ruled that the desire of the Commonwealth not to “promote homosexuality” is more compelling than the interests of the child. This is just one example of the types of cases that will come before the court because the “design, qualities, significance or effects of marriage” are nearly infinite and anti-gay activists will find abundant opportunity to shred the constitution, to take away our rights and to make life miserable for us.

    Jack has explained that he thinks we are going to hell – because he has fantasies about our sex lives – so his claim that promoting a former lesbian relationship is in the best interest of the child appears to be a charade.

  15. Jack says:


    I entirely agree with you first point. I don’t think my astro research will have any bearing on day-to-day life. But it sure is a lot of fun, and I do gain useful skills and knowledge, even in the pursuit of the useless.

    1) The Amendment is not permanent. (See Prohibition.) The Amendment is a response to judges “concocting” rights in lawsuits. If there were no lawsuits, no-one would have bothered with Constitutional Amendments. If, as David believes, you will “eventually” (but “not in the foreseeable future”), get your way through the legislative process, the Amendment will only delay that future.

    I was unaware of that the “dependent domestic partner” language was in the Arlington proposal — I was under the impression that it was merely Justice Kinser’s babbling about a legal classification that does not exist in VA. I apologize, especially to Justice Kinser. Actually, I was somewhat incorrect on that point — sex is not required to be disqualified as a dependent. A couple’s simply calling themselves “husband and husband” disqualifies the taxpayer from claiming the other as a dependent. Either way, my argument stands.

    In any event, I was using the Minneapolis’ legal definition of “domestic partner,” which was the only one I could find. If you could provide me with Arlington’s definition, I’d appreciate it. Perhaps Arlington has some definition that does not include that “living as husband and wife” part, and so does not require sexual intercourse to have occurred.

    2) The Miller-Jenkins case was wrongly decided. That does not mean the result was wrong, only that the judge’s logic was flawed. I was making no comment on whether visits by the non-mother were beneficial or not, only that the judge did not use that criterion to make his decision. I never claimed “that promoting a former lesbian relationship is in the best interest of the child.” It may be, or it may not be. That depends on the specifics of each situation. I only claim that the judge did not properly consider those specifics. That explanation is about as unambiguous as I can make it.

    Judges can, and frequently do, shred our constitutions. The U.S. Constitution is one of the most clearly written documents in the world, and it is routinely shredded. There is no way to write something that others, particularly lawyers, will not twist. (Just this year, a Canadian company lost over $20M because of a comma in the contract.)

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