Still More Say: 'Vote No on No. 1'

Every day more and more newspapers and community leaders are joining the opposition to Ballot Question #1, the Marshall/Newman Amendment.

Even the Richmond Times-Dispatch, which arguably has one of the most conservative editorial pages of any big-city newspaper in the country, is urging its readers across Virginia to cast a "no" vote on November 7. In its edition for Sunday, October 29, the RTD concluded a well-reasoned editorial by saying:

Constitutions are in essence rhetorical covenants. In democracies, practically all else is politics.

Jefferson noted that societal change "may require occasional and corresponding modifications" in constitutions. But he and Madison (see The Federalist) and Marshall (see McCullough v. Maryland) stressed the "occasional" -- believing constitutions should be relatively spare documents, and amendments to them few. Legislatures were designed to be the most powerful branch. Because they are closest to the people, they also are the most reflective of citizen opinion, and the most responsive to it.

Virginia's judges live largely apart -- insulated and removed. If they begin knocking down the Commonwealth's statutory bulwarks protecting marriage, then let the Assembly send to the citizenry a proposed amendment consisting of a simple statement confining marriage in Virginia to a man and a woman.

And let it be a measure lacking this amendment's aggressive add-ons that could empower judges to engage -- practically unchecked -- in blue-sky interpretation of what its language means, while simultaneously denying the legislature the flexibility it ought to have to reconstruct the bulwarks.

On this amendment, as written, we incline against.

In The Examiner on Monday, the Cato Institute's David Boaz explains why the hoary argument about "activist judges" imposing same-sex marriage against an unwilling citizenry holds no water:

There’s never been a same-sex marriage in Virginia, and they’ve been outlawed by statute for more than 30 years. So why are Virginia voters being asked to vote on a constitutional amendment to ban gay marriage?

Mostly because it’s a bait-and-switch game. The proposed Ballot Question No. 1 is far broader than a simple ban on gay marriage.

Supporters say the amendment is needed in order to prevent activist judges from unilaterally changing the definition of marriage. But no liberal activists have yet been sighted in the Virginia judiciary. And that’s no surprise because judges in Virginia are selected by the same legislature that has repeatedly passed bans on gay marriage, civil unions and domestic partnerships, including this proposed amendment.

In fact, Virginia is one of only two states where the legislature directly appoints judges to the state courts, including the state Supreme Court. It is inconceivable that Virginia judges, including four members of the Supreme Court, are going to impose gay marriage on the state. Virginia is not Massachusetts nor Vermont or New Jersey, and our judges are certainly more conservative than those in New York, where the high court recently upheld the state’s ban on gay marriage.

The irony in Virginia is that conservatives fearful of an out-of-control judiciary are in fact inviting the judiciary to get involved in micro-managing family law.

Boaz's article reminded me of a recent blogpost by conservative lawyer Steve Minor, who writes the South West Virginia Law Blog. Referring to the recent New Jersey Supreme Court ruling that explicitly rejected the idea of same-sex marriage in that state, Minor writes:

The opinion is written in such a way that it could never be followed in Virginia. The Court cites all the protections against discrimination based on sexual orientation written into the law of New Jersey. None of this background exists in Virginia law. I doubt that the analysis in this case would make it any more likely that some day the Virginia Supreme Court will find that the statutory ban on same-sex marriage violates the Virginia Constitution.

The Roanoke Times also examined the New Jersey ruling and found it has little relevance to the situation in Virginia. An editorial in Monday's paper notes:

Despite the tolerance of New Jersey voters, however, the court specifically passed the question of marriage back to state lawmakers and the democratic process: Legislators can provide for nondiscriminatory civil unions or sanction "marriage."

The distinction is important to those religious Americans who regard homosexuality as sinful and argue that, while they do not condone discrimination against anyone, they regard marriage as a sacred institution that would be sullied by gay unions."The great engine for social change in this country has always been the democratic process," the New Jersey ruling acknowledges. "Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society. Plaintiffs' quest does not end here. They must now appeal to their fellow citizens whose voices are heard through their popularly elected representatives."

The ruling flies in the face of fear-mongering conservatives who insist that constitutions -- state or federal -- must be amended to "protect" marriage from judicial overreach.

Virginia voters have many valid reasons to go to the polls Nov. 7: to affect the war in Iraq, the erosion of constitutional guarantees such as habeas corpus, the growing gap between the very rich and everyone else that will change the future of people's children and grandchildren, a national debt that will burden them their entire lives.

The sanctity of marriage in Virginia, however, is not in any danger.

From Southwest Virginia itself, a guest writer in the Bristol Herald-Courier also finds good reasons to reject the Marshall/Newman amendment. An opinion piece in its Sunday editions by Dr. Teresa Keller of Emory and Henry College stated:

Voters have an opportunity to move Virginia backward by passing an amendment to the state Constitution on Nov. 7.

Changing the Constitution is a powerfully broad action that will prevent future generations from establishing policy for themselves. The proposal claims to "protect marriage," but fails. Homosexual relationships will not be affected, but others could be affected by unintended consequences. Most serious of all, the amendment blurs the line between the government and religion.

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THE TRUTH IS that under our existing system, changing our laws or our state Constitution in regard to marriage should not affect religious belief or practice. Churches will marry or not marry whomever they choose. Furthermore, those who want homosexual relationships will continue to have them, state sanctioned or not.

The American Association of University Women, the League of Women Voters, the Virginia Legal Review Committee and many high-profile officials have announced their opposition to the proposal. Even Gov. Tim Kaine, who opposes gay marriage, has announced that he will vote against the amendment.

Virginia voters have a powerful decision to make on Nov. 7. Those who want to maintain the state Constitution as a document that protects rights rather than restricts them will vote "no."

Across the mountain, the editorial board of the Staunton News-Leader has also decided that Virginians should vote "no" on the amendment. Monday's lead editorial says:

Before we dissect the proposed amendment to our state constitution, we would be remiss if we did not state for the record that we do not believe that marriage between homosexual men or lesbian women ought to be the object of a constitutional amendment. We believe any decision about religious blessing (or censure) of unions between same-sex couples ought to be made by religious authorities. We also believe that businesses and corporations who deem it appropriate to recognize same-sex partners as bona fide beneficiaries of health or other benefits ought to be free to make those decisions without interference from state or federal government.

That stated, we are pragmatic enough to realize that marriage — whether it is viewed as a holy sacrament or merely a cold legal contract — is as regulated as voter registration or records held by the Department of Motor Vehicles. Under current state law, it is illegal for same-sex individuals to become married and any such unions undertaken elsewhere are not recognized by the state of Virginia. We are comfortable with those legal bans and we believe they are adequate, despite the bogeyman of "activist judges" the amendment's supporters love to cite. We do not fear that state judges will suddenly give their blessing to either same-sex civil union or marriage. If a sea-change sweeps the land such as that which occurred concerning what used to be called miscegenation — marriage between white and non-white citizens — we may either live with the change or our lawmakers may engage in another round of "massive resistance" similar to what followed the Supreme Court order to integrate public schools. We hope it never comes to that, but we have faith in our legislative, judicial and executive branches that it will not. Should that faith fail, we have our personal faiths to fall back upon — and they will rule as they shall.

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Please — vote "no" on Tuesday, Nov. 7 when you are faced with the specter of this overzealous and potentially dangerous amendment to our state constitution.

Across the state, in Hampton Roads, the Virginian-Pilot urges its readers, too, to cast a "no" vote on Election Day. Its Sunday editorial argued:

You don't have to delve deeply into Virginia's constitution to find these words, penned by George Mason and adopted on June 12, 1776:

"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."

Neither will you have to look beyond the ballot on Nov. 7 to find these words:

"That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.

"This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

Parse them anyway you like, but those 87 words seek no less than to undo what Mason wrought in Virginia's first days, sentiments that have stood the test of 230 years.

The contrast in language is itself stark, between Mason's soaring elegance and the clumsiness of what is commonly referred to as the marriage amendment, penned by Del. Bob Marshall and Sen. Steve Newman.

The mere possibility that such gracelessness might find its way into Virginia's high-minded Bill of Rights - among protections for religious liberties, assembly and free elections - is insult enough to the commonwealth's founding sentiments.

But the marriage amendment's intent - to deprive unmarried people of basic legal rights otherwise guaranteed by Virginia's constitution and by common law - makes a mockery of Mason's hope of protecting the inherent rights of all men to be equally free and independent.

The fact is, the conservative position -- that is, the position skeptical of change and of legislative solutions to social problems -- is to vote "no" on the Marshall/Newman amendment. Those who support this proposal and claim to be conservatives are liberal social engineers masquerading as conservatives. They are wolves in sheep's clothing.