There was great cause for celebration last week when the Attorney General couldn’t resist temptation, and released an advisory opinion on the Marshall/Newman amendment that proved our point: Lawyers and legal scholars can’t agree on how judges would interpret its ambiguous language.
Just for grins, here’s the latest propaganda piece from the Some Families Foundation, explained (don’t worry, it gets more entertaining as you go along):
Victoria Cobb, Executive Director
Friday, September 15, 2006Information Alert: AG dismisses marriage opponent’s claims
Yesterday, Virginia Attorney General Bob McDonnell dismissed claims of so-called “unintended consequences” made by opponents of the marriage amendment in an official opinion released by his office.
For weeks opponents such as Equality Virginia and the Commonwealth Coalition have attempted to scare Virginians into voting against the marriage amendment, claiming that the amendment will undermine legal rights to all Virginians regarding things such as contracts, wills, domestic violence laws.
I think what Victoria means to say is that amendment supporters such as herself intend only to undermine these legal rights for some Virginians, not all of them. Since her organization, you’ll recall, lobbied fiercely against the right of Virginia businesses to offer health insurance benefit packages that include the unmarried partners of their employees, we can assume that certain consequences are very much intended.
Of course, we know that such claims are baseless and are simply an attempt to distract Virginians from the real issue: how we are going to define marriage for future generations. In state after state that has had amendments on the ballot, opponents have used the same tactic regardless of how the amendments are written. They do so because they know they can’t talk about marriage. Unfortunately, opponents are able to get their message out through the mainstream media and the editorial pages continue to carry the banner for the opposition. [Emphasis mine]
There she goes again, openly declaring the intent to disenfranchise future generations. Victoria needs to familiarize herself with the Virginia Bill of Rights that she wishes to deface, especially this part: That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
Victoria, what part of “cannot, by any compact, deprive or divest their posterity” do you not understand?
The General Assembly, the Attorney General and the State Board of Elections have all dismissed the opponents’ baseless unintended consequences argument; the people of Virginia should do the same.
This statement doesn’t even make sense. The Division of Legislative Services, the body that is supposed to draft explanations, has said that the official “explanation” drafted by the Attorney General does not meet the standard of neutrality required by Virginia law. The SBE’s role is simply to print and distribute this material as directed.
Now that the legal concerns have been answered, Virginians can focus on the real issue of protecting marriage.
The release of one legal opinion from the Attorney General that is diametrically opposed to other legal opinions concerning the same language hardly constitutes “answering the legal concerns.” Quite the opposite, in fact – it simply proves what the Commonwealth Coalition has been saying all along, that the language of Marshall/Newman is ambiguous, and that it’s implications are largely unknown. Next.
To this point, opponents have been allowed by the media to avoid the real question. Instead of hiding behind deceptive campaign stunts and misinformation, opponents to the amendment owe Virginians their definition of marriage. How do they want marriage defined in Virginia? Which combinations should be allowed and which should not? Where do they draw the line? How do they say no to other forms of marriage? [Emphasis mine]
You would think, from reading this colorful prose, that some proposal had been made challenging the legal definition of marriage in Virginia. Now, those on the receiving end of this mailing may not know any better, but Victoria, as a long time lobbyist in Richmond, knows perfectly well that this is not the case. The only people trying to change the law in Virginia are the ones trying to amend our Bill of Rights. Victoria, you’re not making things up, are you?
At any rate, as conservative 4th Circuit Judge J. Harvie Wilkinson III asserts, questions of family law belong in the legislature, not constitutions.
Those who wish to redefine marriage have desperately tried to hide behind their fear mongering so they don’t have to tell the people of Virginia how marriage should be defined. It is time they answer that question.
What question? Again, opponents of the Marshall/Newman amendment have not introduced legislation, filed a single lawsuit, or otherwise challenged the legal definition of marriage in Virginia. In fact, many of those opposing the amendment, notably including Governor Tim Kaine, have stated repeatedly on the record that they think marriage should be defined as between one man and one woman – exactly as Victoria Cobb claims to define it. Are we missing something?
Other opponents, such as some faith communities, have been very clear that they support full marriage equality. If anyone from across the spectrum of those opposing the amendment has failed to make their reasons for doing so perfectly clear, I am unaware of it.
The debate over the marriage amendment should be how we are going to define marriage, and that is the debate we are prepared to have with our opponents.
And that is a debate we could be having, if that question comprised the actual content of Marshall/Newman. However, we can’t have a debate about a make-believe amendment, we have to discuss the amendment that will appear on the ballot on November 7.
On a local note: Although amendment proponents in Prince William County are willing to participate in a public forum, scheduled for this Thursday in Manassas (see our calendar for details), their counterparts in Loudoun have so far refused similar invitations. We can understand their reluctance on the grounds that they are only “prepared” to have a debate on the amendment they wish they had, but it doesn’t reflect well on their regard for transparency and the public process.
David:
I understand that you believe the wording of the proposed constitutional amendment will cause colateral damage to such things as hospital visitation rights, powers of attorney, etc. However, I trust you understand the intent of the amendment, which is to prevent some judge for deciding that the law prohibiting same-sex marriages or civil unions violates the Virginia Bill of Rights.
How would you change to wording of the amendment to achieve that intent, without the colateral damage you anticipate?
If you prefer, let us assume that the amendment passes, and the colateral damage you fear comes to pass. Also assume you cannot get enough support for complete repeal of the amendment. How would you word an amendment to mitigate that colateral damage, without gutting the Marriage Amendment altogether (because such an amendment would not pass)?
David,
I really enjoy watching you expose Victoria’s spin. I can understand why the vote NOvaTownHall doesn’t want to entertain a debate. The fact of the matter is that an educated voter is a NO voter. It wouldn’t benefit the pro-amendment cause one bit to engage in a principled debate.
Jack,
A post on the Wilkinson op-ed was published here. Please read it again. Marriage law is statutory. It doesn’t belong in the constitution.
What Jack is discussing is the intent of the amendment, which we can separate from the view that such things don’t belong in constitutions in the first place. It’s a different question.
As to the intent, I don’t think that the extra language was added by mistake or out of incompetence. I think that the individuals who drafted this language had a different intent from what you are being told, and that they do not, in fact, view the threat to contract rights for unmarried people as “collateral damage.” They really don’t want unmarried couples to have those rights.
If the intent of this amendment was simply to prohibit the recognition of legal unions, then that is the term they would have used – not “legal status.” Those terms mean very different things.
Having said that, I will decline to get into the business of suggesting legislative language to those who wish to harm my family.
David:
The ball will be in your court very soon. The odds are the Marriage Amendment will pass. At that point, I assume you will want to try to mitigate the damage to wills, powers of attorney, etc. How would you phrase an amendment to do that, assuming that an amendment that guts the currently proposed one would not pass.
Well at least Jack admits that there will be damage. Given earlier outright denials, I’d call that progress!
Jonathan:
Stop being snarky — we’re trying to have a conversation here. I did not feel the need to repeat “the damage you anticipate” every time.
If you are going to bash the amendment for being ambiguous, you should be able to come up with an unambiguous alternative that achieves the intended result. Failing that, you should be able to formulate a (non-ambiguous) amendment that will fix the alleged ambiguities to your liking.
Apparently, you are simply not up to the task.
Jack,
We have an agreement not to read each other’s minds. You wrote what you wrote. I thought that after studying the amendment and seeing how similar language was used by anti-gay activists in other states to use the courts to not only damage the legal status of gay and lesbian couples but to take away rights from “unmarried individuals”, for example domestic violence victims in Ohio, you finally understood how damaging it is.
David already answered your question.
David:
OK, so you pass on part one, rewriting the current amendment. Fine.
Now, whether the alegedly damaging language in the amendment is intentional or not is irrelevant. You claim that the proponents of the amendment are trying to hide that potential for damage. So we can assume that the voters may not understand things as you do, and will unwittingly vote for the amendment.
So, how would you word a follow-up amendment that mitigates that potential damage, assuming that a total repeal will not pass? (You are now in the business of proposing an amendment for YOUR side.)
Jack, I’m flattered – sort of – by your confidence in my ability to draft legislation, but that’s not really my job. Nor would I be interested in writing legislation that achieves what you think is the intended result of the proposed amendment.
I am not, in fact, in the business of proposing amendments of any kind. I would, if the amendment were to pass, work for its repeal. It doesn’t belong in our constitution, and it never should have been put on the ballot in the first place. The fact that it was represents a moral failure on the part of our legislators.
I hope this puts to rest your demand that I provide you with alternative language for something that should have no language at all.
David:
I thought you might be up to the task. Let’s face it, legislating is not skilled labor. For example, how many jobs do you know in which, upon the death of the worker, the worker’s spouse or child can immediately step in to fill the position? Only in unskilled labor.
Anyway, perhaps you can get someone from Lambda Legal or the ACLU to come up with something.
One more question. Nothing difficult, I assure you. Why “Lambda”? Why not Kappa or Gamma or Epsilon? (I’m not being flippant. I’m really curious.)
Sounds reasonable. It would probably need to include something about “common-law marriages,” too.
Bill, that’s what is so disingenous about the advocates of the amendment. Those contracts are precisely “intended to approximate” some of the rights that are automatically granted through marriage. Of course that’s the intention. Why else spend thousands of dollars on private contracts?
When we acknowledge that, some of the amendment apologists are actually stupid enough to respond by saying that this proves we are trying to gain the rights and benefits of marriage. They don’t seem to realize what they are admitting: That the intention of the amendment is, in fact, to interfere with our ability to implement these contracts.