We are supposed to believe, according to the proponents of Ballot Question #1, that Virginia’s marriage law is vulnerable to being overturned by an “activist judge,” and that we can’t be sure how Virginia judges will rule if there is ever a challenge to that law.
At the same time, we are supposed to believe that we can be sure of how judges will rule on challenges to the contract rights of unmarried couples. Proponents of the amendment are absolutely sure that judges won’t rule based on the actual wording of the amendment, but rather based on the supposed intent of the legislature as embodied in Attorney General Bob McDonnell’s “explanation.” Luckily, we have some empirical evidence pointing to which of those things is more likely to be true. Hap tip to Vivian:
All voters should have learned a lesson from the dismissal of the charges against Tammy Skinner, the woman who shot herself and intentionally killed her unborn child but could not be charged under the existing statues because of the wording of the statute.
We lawyers know that when it comes to statutory construction, what was intended is irrelevant. It is what the statute says that counts. Yes, we were all outraged by her admissions, but the judge was correct in dismissing the charges based on the wording of the statute.
It is now up to the legislature to change the language to make it clear what was intended. Similarly, although supporters of the proposed marriage amendment say that it is not intended to invalidate perfectly legitimate contracts and agreements between unmarried partners, the broad wording of the amendment could very easily be read to do exactly that.
Judges have to decide cases based on the statutes as written, not as intended. The proposed amendment is not well drafted, and for that reason, should not be passed. Otherwise, we will end up with a Tammy Skinner-type situation very quickly, and we will have to go through this process all over again.
Josephine Ursini Krantz
Was it the intent of the legislature to exempt from prosecution a woman who shoots her fetus through her own uterus? It’s hard to know what our legislature is thinking sometimes, but I think it’s safe to say: Probably not. Judges are bound by the language of laws and constitutions, not the political pronouncements of advocates.
Advocates from the Attorney General’s office are trying to claim that Ballot Question #1 means something other than what it says. In fact, it does not contain any language that would exempt particular contract rights, nor does it specify that it only applies to those rights that are “unique to marriage.”
Dahlia Lithwick is also unconvinced:
Characterizing the amendment as “the most expansive such proposal ever to have been put before the voters of any state,” the [Arnold & Porter] memo cites serious legal problems with its “exceedingly broad and untested language.”
Seeking to reassure Virginia voters that this is merely liberal fear-mongering, the amendment’s supporters insist that none of these hypothetical issues could ever arise. And how do they know? Last week, Bolling and McDonnell took to the stump to announce that there was no chance that the state’s high court would invalidate, for example, contract laws or domestic-violence protections for unmarried partners. Come again? The bulwark against this amendment’s terrible consequences would be the judges? The same judges of whom we are so terrified that we must amend the constitution? Brilliant.
We are also being asked to believe that the objective of this amendment is simply to “protect marriage,” that it is not in any way motivated by anti-gay animus, and that the intentions of supporters are as pure as the driven snow. One activist touchingly writes:
Many authors of letters opposed to the marriage amendment seem not only to fear its effects, but also to feel that supporters of the measure hold some personal animosity towards them. On behalf of the amendment’s supporters in Loudoun, I wish to assure you that we hold no ill will towards you or your families. Nor do we wish to disrupt the legal arrangements by which you have provided for your families.
This particular author happens to also be the author of a resolution adopted by the Loudoun County Republican Committee calling on the US Supreme Court to reverse the decision in Lawrence v. Texas. That resolution refers to the following as “sound precedent” to which the Court should return:
The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court’s prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable.
Just to be perfectly clear: This writer, who wants us to believe that she bears “no ill will” toward our families, thinks that loving relationships between same sex partners can reasonably be criminalized. This would be in addition to the more candid spokespersons, such as this one expressing the intent to “kick you back under your rocks in November,” and this one that likes to associate the GLBT community with deviant, predatory behavior.
Also at the same time, the chief patron of Ballot Question #1, aka the Marshall/Newman amendment, proudly tells the Washington Post that he is Virginia’s “chief homophobe,” and openly admits in forum after forum that the amendment is not really about marriage, but about “stopping the gay agenda.”
And what is this “agenda” that he wishes to stop? The ability of same sex couples to live with honesty and integrity, dignity and safety, publicly declaring commitment to our families.
Finally, we are expected to believe that the official explanation of Ballot Question #1, published by the State Board of Elections as required by law, is a neutral explanation.
At the same time, we (not to mention the SBE) are supposed to accept the use of this supposedly neutral document as a campaign tool for passage of the amendment. Isn’t it interesting that the “neutral” explanation, drafted by an active proponent of the amendment (Bob McDonnell vigorously lobbied for the measure as a delegate in the 2005 General Assembly session, and continues to actively promote it) would just happen to be exactly the position of the activist groups campaigning for the amendment?
Laughably, in order to create the impression of neutrality, amendment proponents refer to the the SBE as “a solidly bi-partisan organization.” The SBE only publishes the explanation that the legislature adopts, and has no role in influencing or approving its content. In fact, the language of the explanation was criticized by professional staff of the Division of Legislative Services, both in writing and in meetings at which the language was adopted. The brutal truth is that, although the language only represents one side of the arguments presented to the Privileges and Elections committees, those committees had the votes to override any attempts to insure that the language was indeed neutral, as required by law.
Proponents of the amendment have proven themselves utterly unable to address these contradictions in any substantive way. They can only respond by repeating one of the aforementioned points, but fail to explain how they can simultaneously be true.
According to yesterday’s Mason-Dixon poll, six percent of voters are still undecided on Ballot Question #1. Those who have managed to remain undecided this long obviously have some reservations about the language. These contradictions should only heighten those reservations. If you have read and understand the entire amendment, and are completely comfortable with having Virginia judges bound by that language in any case that a lawyer may bring before them, then go ahead and vote for it. If you feel that way, your objective is to intentionally inflict harm on families of which you don’t approve, and I have nothing to say to you.