“If those who wrote this amendment had really written out what they wanted, it would be so repugnant that no one would consider it.” –Delegate Ken Plum, discussing the legislative history of the Marshall/Newman amendment
Sunday night we had the pleasure of attending a public educational forum on the Marshall/Newman amendment hosted by the United Christian Parish in Reston. The forum was organized by the Reston Ministerium, to encourage members of the religious community to get involved in what they term a human rights issue. Let it not be said that a vote for fairness and equality is not a “values vote.” It is.
The panel was able to address what’s wrong with the proposed amendment from a variety of perspectives:
- Laura Robertson, Northern VA Field Director for the Commonwealth Coalition
- Leslie Nickel, one of the attorneys who drafted the Arnold & Porter legal memo detailing concerns about the amendment language
- Delegate Ken Plum, 36th District
- State Senator Janet Howell, 32nd District
- Doug Koelemay, Managing Director for Qorvis Communications
Many audience members knew little about the amendment and had not read the full text before, so it truly was an educational forum. The panel was able to put to rest some common misconceptions, such as the idea that certain private contracts would automatically be nullified by the amendment, and explained with clarity why there are grave concerns about this specific language. The members of the legislature were able to provide insight into both the legislative process and the intent of their colleagues.
Virginia’s competitive advantage at risk
Doug Koelemay did an excellent job presenting the perspective of the business community, pointing out that Virginia was just named the “Best State for Business” by Forbes in large part because of the Commonwealth’s “traditional low-regulatory approach.” One of the fundamental “Ten Commandments of Business” is the freedom to contract – anything that restricts choice in terms of contractual agreements, and anything that creates uncertainty and risk, is fundamentally anti-business. The Marshall/Newman amendment does both of those things.
First, it would make permanent a highly regulatory approach that is disruptive to the marketplace. A business with employees in four different states doesn’t want to have to administer four different sets of rules for benefits packages, for example. That’s why the business community lobbied for the 2005 statutory expansion in health insurance coverage. Koelemay was highly involved in that effort, and on that basis is convinced that, if the amendment passes, “there will be next steps to undo” this change in law that allows freedom of contract between employers, employees, and insurance providers.
Problems with business-unfriendly statute can be corrected legislatively, as demonstrated by the successful passage of the 2005 law; the amendment would make such correction impossible.
The amendment would also create uncertainty and risk for businesses, by inviting litigation. Since being a party to a contract is a “legal status,” and since many benefits are extended through the workplace, businesses would be vulnerable to being pulled into litigation. Risk = cost. It’s bad for business.
The region of which Northern Virginia is part is becoming increasingly diverse and reliant on technology, talent and tolerance. Why would we throw away the competitive advantage that we enjoy?
Cruel, deceitful, and dangerous – your tax dollars at work
The members of the legislature, having witnessed the two-session travesty in which the measure was placed on the ballot, provided insight into that process. For example, the urgency to place it on the ballot this election was initially driven by a strategic plan to bring out the hard right base to support Senator George Allen. Far from an expression of the strong bi-partisan support we keep hearing about from the Some Families Foundation, many of our representatives voted for the measure only because they were threatened with primary challenges. As Senator Howell put it, some legislators “think it’s ok to diminish other people’s rights if they get to stay in their seats.” As we said at the time, those few who stood up to this bullying and did the right thing anyway deserve a lot of credit. History will show that they had the courage of their convictions.
Senator Howell happens to have chaired the committee that drafted our current domestic violence statute, with its language specifically intended to protect unmarried partners. The way that language is currently being interpreted by courts means that under the amendment, unmarried people “will lose the protections we so carefully put in place.” The amendment language is no accident, she says, because those who drafted it simply don’t approve of sex outside marriage.
Both legislators are convinced from witnessing this process that the intent behind the measure is both intentionally cruel and deceitful. Delegate Plum pointed out that, as a general rule, members of the legislature pride themselves on writing law that is very clear. In this case, that was not possible. As he explains, those responsible could not put in print what they actually want to do without looking repugnant. The result is language that is ambiguous in order to deceive.
A field day for lawyers
Leslie Nickel clarified much of the confusion over how the amendment will be used to cause trauma to families. Although it remains unknown how a judge will interpret the language in any given court challenge, that isn’t even the primary cause of harm. Beyond the potential for having a court refuse to enforce legal contracts, considerable harm will be done just by the challenge itself, by forcing a family to go through the litigation process in order to defend their rights. That alone is sufficient to carry out the intent to create trauma to our families. This point recalls the cruelty of a remark made in August by the Some Families Foundation’s Victoria Cobb: She thinks “gays could go to court to defend themselves if a partner’s family members challenged their right to own property in common, arrange powers of attorney or visit each other in the hospital.” As if it’s no big deal to be forced through a court battle in addition to whatever family crisis precipitated the legal challenge in the first place. Despicable and inhuman.
Nickel’s analysis is that the objective of the ambiguous language is to invite litigation of all kinds, to create “a field day for lawyers.” There is no definition of the term “legal status” in the Virginia code, she explained. When there is no definition for a term in code, judges go to the dictionary for a definition. The dictionary definition of “legal status,” according to Nickel, is simply “a basket of rights and obligations.” Interestingly, in a cursory search of several online legal dictionaries, I couldn’t even find a definition. It seems that this is such a broad term that it could mean just about anything. That seems to be the point of using it. If the intent was simply, as proponents claim, to prohibit the legislative creation of and recognition of civil unions or similar arrangements that parallel marriage, the proper legal term would have been “legal union,” not “legal status.”
Even the less broad and ambiguous Affirmation of Marriage Act (HB 751) has already been interpreted to override both federal law and Virginia’s stated criterion for the resolution of child custody disputes. This recent history makes clear that if the amendment were to pass, it would be a matter of fundamental constitutional law that unmarried, especially same sex, relationships are to be disfavored, and that this would override the criterion of the best interest of the child.
The crime of intentionality
Regarding the language “intends to approximate,” the panel was asked whether a court would be obligated to look behind a contract to determine the intent of the parties in creating it. Legally speaking, a litigant can present information that would be considered outside of the contract itself as evidence to support their case. In other words, if a couple has drafted agreements to give each other property rights, medical decision-making power, and similar rights, the fact that they have also been joined in a commitment ceremony at their church, or otherwise made announcement of their partnership, is evidence that could be presented as to the intent of those contracts. Given the wording of the amendment, it should be assumed that a person or organization challenging these contracts would find it in their best interest to present such “evidence.”
This should be read as outright discouragement for couples to make their commitment to each other publicly known in any way other than through legal marriage.
“We’ll kick you back under your rocks”
So says an amendment supporter who has misplaced his copy of the approved talking points. What he was supposed to say is “none of us wishes to see the gay community returned ‘to the closet.'” Bullshit.
If you want to destroy a people, you keep them from having a family. –Candy Cox, NGLTF, soon to be former Virginia resident
One of the most important aspects of marriage is the social recognition of the partnership, the expectation that these two people will take care of each other no matter what, the understanding that they have loyalty to each other above everything else. That function is only possible with the public declaration of that partnership – to stand before family and community and the universe and have them all witness and give blessing to that commitment.
Gay couples have that. Not from everyone, certainly, but from a significant segment of society and within our own strong communities. It’s not something that has to be authorized by any governmental body, and it’s an incredibly powerful affirmation of reality: This is who I am, and this is my family.
Therefore, it appalls and terrifies the anti-gay crowd. The claim that they don’t intend, with this amendment, to force us back into the closet, is a lie. They very much want to discourage the open declarations of loving commitment between same sex couples, the “intent to approximate” marriage.
Opposition to marriage equality is dropping like a stone, and it’s because people can see us. The anti-gay crowd needs for people not to see us. It’s not that hard to understand, from their perspective, but it’s hard for them to be honest about.
For us, the knowledge that this fundamental truth will not be changed by either a positive or negative outcome on November 7th, is tremendously powerful. That knowledge will be powerful if the amendment passes, but we can and should use it to bring about a different outcome.
Use your power. Tell your story.