By Chris L. Jenkins
Washington Post Staff Writer
Monday, October 2, 2006
Backers of a state constitutional amendment that would ban same-sex marriage contend that the measure wouldn't change life for Virginians, gay or not, one iota.
So why are they asking voters to alter the state's 230-year-old Bill of Rights -- a document that served as a model for the U.S. Bill of Rights -- for the first time in a decade?
Supporters say action is needed to protect the commonwealth's laws against same-sex marriage from state judges who could rule that they are unconstitutional, as happened in Massachusetts in 2003 and in Maryland in January when a circuit court judge ruled that a law banning same-sex marriage was discriminatory.
"Nothing will change," said Del. Robert G. Marshall (R-Prince William), one of the amendment's sponsors. "All this would do is prevent the gay rights crowd from gaining any perceived right to marry by going to the courts."
Opponents of the measure vehemently disagree with the notion that the ballot question simply enshrines the status quo for Virginians. They have largely based their campaign on convincing voters that the amendment could have all sorts of unintended consequences, including jeopardizing contracts between unwed heterosexual couples, threatening safeguards for unmarried victims of domestic violence and hurting Virginia's business climate.
What impact, if any, the proposed amendment would have on the everyday lives of Virginians has become the defining issue in the fight over the measure, which will appear on the Nov. 7 ballot. The debate has split lawmakers, legal scholars and some of the state's highest elected officials as the campaign heads into its final stretch over the next five weeks.
The battle reflects those in other states where similar measures have appeared on the ballot. Since 1998, 20 states have passed constitutional amendments banning same-sex marriage. In many of those states, opponents have argued unsuccessfully that the amendments go too far. Several other states are considering measures this fall.
The portion of the Virginia amendment in question states: "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."
Opponents argue that because current law specifically bans "same-sex" couples from such rights and because the amendment says the state should not "recognize a legal status . . . for unmarried individuals" -- without specifying what kind -- it jeopardizes all relationships. They have released their own legal analysis, signed by more than 100 Virginia lawyers, backing their claims.
"One says same-sex couples, the other says unmarried couples -- they don't mean the same thing," said Claire Guthrie Gastanaga, campaign director for the Commonwealth Coalition, the organization leading the opposition. "If the General Assembly meant 'same-sex couples' for the constitutional amendment, they would have said 'same-sex couples.' "
Opponents say that the language could ban heterosexual couples from making contracts on health-care decisions and property ownership. Married people get these rights automatically through long-established common law; unwed couples, both gay and heterosexual ones, use legal documents to ensure they can will property to a partner or allow the partner, rather than family members, to make end-of-life decisions.
Gov. Timothy M. Kaine (D), who is against same-sex marriage, said the "broad" wording of the measure could threaten protective orders and additional safeguards for unmarried victims of domestic violence by barring all legal recognition of unmarried family or household members. Kaine has also said the amendment has the potential to hurt the state's business environment because it could stymie a company's efforts to recruit talent.
Supporters, including Virginia Attorney General Robert F. McDonnell (R), who voted for the amendment last year when he was a delegate, say the commonwealth is not in jeopardy of having existing laws invalidated. They argue that the right to enter into a contract isn't exclusive to marriage.
"I can't see how a judge would rule that basic rights such as wills and other contracts can be seen only as marital rights," said Lynne Marie Kohm, a professor of law at Regent University in Virginia Beach.
Nonetheless, several legal experts who have studied similar amendments said that, rather than clarifying legal questions, the measure will raise additional ones and that Virginia is sure to face court challenges.
In Ohio, where a similarly worded constitutional amendment was adopted in 2004, two appellate courts have concluded that it exempts unmarried couples from prosecution under domestic violence laws, while eight other courts have ruled otherwise. The matter is now before the Ohio Supreme Court.
"We don't know how far-reaching this type of amendment would ultimately be interpreted by the court. . . . That's the problem with the way this is worded," said Cheryl Lynn Hepfer, president of the American Academy of Matrimonial Lawyers and an expert in contractual law. "Often people don't understand the consequences until the courts interpret it. And sometimes it's interpreted more broadly and sometimes less broadly."
Aside from the legal arguments, opponents have also questioned the motivation of the amendment backers, saying that the ballot measure has been designed specifically to help U.S. Sen. George Allen (R-Va.) drive conservative voters to the polls to win reelection.
"This is a contrived initiative straight from Karl Rove's playbook," said Del. Brian J. Moran (D-Alexandria). "It has nothing to do with marriage and everything to do with partisan politics."
Republican drafters of the amendment point out that dozens of Democrats in the legislature voted to place it on the ballot.
"Opponents are looking for every single nuance to say why we've put this on the ballot," said Del. John A. Cosgrove (R-Chesapeake), another sponsor of the amendment. "All the brouhaha about unintended consequences and any partisan motivations are just scare tactics."