Equality Loudoun Archive, 2003-2015

The NoVA Town Hall meeting featuring Attorney General Bob McDonnell drew over 100 attendees last night, an impressive feat in August by any standard.

The AG spoke on two allegedly “hot” controversial topics, the Marshall-Newman amendment and immigration policy. I must say that the latter topic was considerably hotter than the former. The amendment segment seemed of little interest to the crowd, other than the questions posed to the AG from amendment opponents. There was no applause for any of his statements or answers to questions during that segment. There were no questions from the pro-amendment side, other than a statement from a local anti-gay activist about the supposed “name-calling” directed at people who support the amendment (“bigot” was his example, a term I have said many times I don’t find particularly helpful). As a side note, it’s ironic that this comment came from a person who has been found guilty of defamation by a Virginia court, but I digress.

The immigration segment, on the other hand, became very animated and emotional, with frequent outbursts of applause and interjections from the audience. Why? I would suggest that the issue of immigration actually has a material impact on the day to day lives of people. The issue of whether GLBT Virginians have access to the benefits of marriage does not. Our ability to protect our family relationships, whatever it’s called, has no impact whatsoever on the quality of life of our neighbors. Sensible people can see that, and they did not come to Sterling on a hot August night to hear about same-sex marriage.

Having said that, there were some very good questions posed about the proposed amendment. I will discuss three of them, rephrased for better clarity and conciseness. The first was this:

You have said that basic private contract rights would not be affected by the amendment. If I and another person were to enter into a particular set of contracts, such as a will, a medical directive, a beneficiary of insurance benefits designation, a power of attorney, etc, and this set of contracts aligned more or less with the rights that would be granted by a domestic partnership, is there a point at which this aggregation of individual contracts would become an “approximation” of marriage and become unenforceable, as private contracts? Would Virginia courts enforce and uphold these contracts, or would the fact that they approximate a domestic partnership in aggregate render them unenforceable?

Unfortunately, McDonnell either misunderstood the question or chose to answer a different question. His answer was that the amendment would prohibit domestic partnerships as a “legal status.” Well, duh. That is what the amendment says. That was not the question, however.

McDonnell did say at one point that it is the responsibility of the legislature to make sure that the bills they draft are clearly written and in this case, clearly define what is prohibited. The fact that the above question needs to be asked is a stark indication that the proposed amendment fails to meet that standard.

The second question was mine. It irks me that pro-amendment activists continue to repeat the falsehood that “the amendment only puts in the constitution what already exists in law,” when that is so demonstrably untrue.

You stated that the amendment “merely raises to the level of constitutional protection what is already in existing law.” How then do you explain the fact that existing law, for example the “Affirmation of Marriage Act,” explicitly states that these restrictions apply to same sex couples, while the proposed amendment does not contain this language, and would therefore apply to all unmarried couples? It seems to me that this is a very significant extension of these restrictions, since there are many, many more unmarried straight couples than there are same sex couples in Virginia. Do you not feel that this is a significant difference?

McDonnell conceded that yes, the amendment is in fact an extension beyond what is already in Virginia law, and I hope that having this on record will end the perpetuation of at least that piece of misinformation.

The third question is one that I would like to explore a bit more, because I really didn’t understand the implications of this until last night. This question was asked by someone I know to be a very religiously conservative person, who is not at all a friend of the GLBT community.

Virginia code currently says that it is a criminal misdemeanor for a minister to perform a marriage ceremony for a union that would not be a legal union in the Commonwealth. The law is effectively unenforceable because to enforce it would violate the religious liberty clause of our Bill of Rights. With the passage of this amendment, a particular definition of marriage would be elevated to the same constitutional level as the religious liberty clause. Wouldn’t these two elements of our Bill of Rights then be in conflict with each other, and would ministers who perform the religious rites of marriage without including the civil license be subject to prosecution?

An excellent question that didn’t get a satisfactory answer. McDonnell never addressed the undeniable fact that the language of the amendment would become part of our Bill of Rights and elevated to the same level as our other basic freedoms that reside there.

Let’s take a stroll down this potential trajectory. As is often the case, we have a law on the books that is clearly unconstitutional. The right of any faith community to define for themselves what they consider religious marriage and what rites they will perform is fundamental to religious liberty. We don’t make orthodox rabbis perform intermarriages between Jews and non-Jews. We don’t force traditional Catholic priests to perform marriages of divorced people. And we do not tell open and affirming congregations that they may not celebrate sacred unions for same sex couples if that is what their faith calls them to do. To do any of these things would be flat out unconstitutional.

Currently, there is no particular motivation to repeal this ridiculous law, because our Bill of Rights renders it effectively unenforceable.

Enter the Marshall-Newman amendment.

Suddenly, we have a situation in which the particular definition of marriage that will be recognized by the state has been raised to the same level of constitutional protection as the clause in our Bill of Rights that guarantees the right of people of faith to celebrate the religious rites of marriage as dictated by their faith, not the state.

Now that unconstitutional law is no longer unconstitutional, because its basis has been elevated to the level of the constitution itself.

Now it is enforceable, and ministers whose deeply held religious beliefs don’t permit them to discriminate by performing civil marriage for only some of their congregants, or who believe that marriage should be only a religious rite, are subject to prosecution.

Now that the religious liberty of Virginia citizens is at risk from criminal prosecution, there is motivation to repeal the law – but now that a particular definition of marriage has become a part of our Bill of Rights, repealing the law becomes politically impossible. The basis for it is now part of our constitution, and it can be enforced at will.

One down, four to go. Which one of our basic freedoms is next?