By Chris L. Jenkins and Tim Craig
Washington Post Staff Writers
Friday, September 15, 2006
Gov. Timothy M. Kaine (D) urged Virginians to vote against a proposed constitutional amendment banning same-sex marriage and civil unions, saying the ballot question puts thousands of unmarried couples at risk of losing a slew of benefits.
Kaine's comments, as well as his pledge to campaign vigorously against the measure, came just hours after Virginia Attorney General Robert F. McDonnell (R) issued a legal opinion arguing just the opposite. McDonnell said the rights of unwed couples to sign over property, develop wills and make other contracts will not be threatened by the proposed amendment on the November ballot.
The dueling perspectives of two of the state's top elected officials indicate an intensifying campaign over a ballot question that will decide whether Virginia will join 20 other states that have banned same sex-marriage. At least six other states will be considering similar measures this fall.
Speaking to reporters in Richmond, Kaine said he will use "the power of his office" to tell voters about what he says are the amendment's "unintended consequences" for both gay and straight unmarried couples.
The amendment says in part that "the state shall not recognize another . . . legal status to which is assigned the rights benefits, obligations . . . of marriage."
"This is language I don't feel comfortable putting into the constitution," said Kaine, who opposes gay marriage. "I'm married. You ask what the benefits of marriage are? They are infinite. . . . Unmarried individuals are not entitled to any of those?"
But McDonnell, who voted for the ballot question last year when he was a state delegate, said that hundreds of hours of legal research by his office found that contracts that cover issues such as granting hospital visitation rights won't be affected, because they are independent of marital rights.
"The general legal rights to enter into contracts, wills, advance medical directives, shared equity agreements and other legal instruments, are not rights that arise from marriage," McDonnell wrote. "Rather such general rights find their sources in other statutes or common law. Thus these rights would remain unaffected after enactment of the marriage amendment."
The 13-page legal opinion was requested by each of the state lawmakers who sponsored the measure to place the amendment on the November ballot.
The question of what impact the marriage amendment would have has been one of the most contentious points of the debate over the ballot question. Opponents have focused on what they say will be unintended consequences to rally opposition to the measure.
They have had limited success: Two polls conducted by Mason-Dixon Polling and Research Inc. for Virginia newspapers have found that a majority of voters support the amendment, though one poll showed that Northern Virginians opposed it.
Opponents also argue that, because there are varying legal interpretations of the measure, there are sure to be legal challenges, as has happened with similar measures in Ohio and Michigan.
"All the attorney general has done is proved my point: The only thing we know for sure is that there are lawyers that are saying . . . diametrically opposed things," said Claire Guthrie Gastañaga, executive director of the Commonwealth Coalition, which is working to defeat the amendment.
Kaine said he expects to spend considerable time talking to voters about the issue to counteract claims that the amendment merely bans same-sex marriage. "I suspect I won't be talking to just one or two people, but in a way a lot of Virginians will hear," Kaine said.
McDonnell said potential court challenges were nothing to fear.
"When a constitutional amendment is passed, over time there are questions of interpretation that come before the court that are litigated. . . . it's been done thousands and thousands of times," he said. "That is part and parcel of our democracy."