Why the gay marriage ban is bad for Virginians.

Why the gay marriage ban is bad for Virginians.

Why the gay marriage ban is bad for Virginians.

The law, lawyers, and the court.
Nov. 4 2006 7:02 AM

Yes, Virginia, This Is a Terrible Amendment

Why the gay marriage ban is bad for all Virginians.

Virginia voters go to the polls in the next few days to decide whether to amend their constitution not only to ban gay marriage, but also to refuse to recognize any legal arrangement between "unmarried individuals"—gay or straight—that confers marriagelike benefits. The ballot initiative is shocking not only in its bigotry against all unmarried couples, but in its attempt to transform a constitution—a document meant to lay out our highest freedoms and aspirations—into a vicious cudgel to separate "us" from "them."

The voters of Virginia have already made their feelings about gay marriage perfectly clear: State statutes already prohibit both civil unions and marriages between same-sex couples. Laws on the books already nullify marriages or civil unions entered into in any other state. So, having blocked any last road to Virginia recognizing a same-sex marriage, a civil union, or an out-of-state or Canadian gay marriage in Virginia, our cynical legislators have gone one step further: They propose doing away with adoption laws, custody arrangements, medical directives, or domestic-violence statutes with which both heterosexual and homosexual families protect their children and property.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Advertisement

Why the terrific urgency to gild—or should I say, further tarnish—the state's anti-gay-marriage lily? Its supporters advance a single argument: It's an insurance policy against "activist judges" who might someday rise up and strike down the many existing state laws banning gay marriage. Last week, the state's lieutenant governor, Bill Bolling, announced that the "amendment is necessary to protect traditional marriage from possible judicial assault." Judicial assault from whom? The hemp-wearing, patchouli-burning vegetarians who dominate the Virginia bench? State judges here are exceedingly conservative, having been selected by our exceedingly conservative legislature. A local Web site is carrying out an enthusiastic search for Virginia's unhinged, liberal-activist judges. They're proving tough to find.

What's wrong with amending the state constitution to hedge against an unexpected influx of imaginary liberal judicial activists in the future? It's the voters' prerogative to do so. But in voting "yes" on Ballot Question 1, voters should consider the impact of the law on the existing judiciary—judges made of flesh and bone, as opposed to the spectral ghost judges who inhabit Karl Rove's election-year playbook.

Real judges in Virginia will be asked, in the coming years, to give real legal force to the ambiguous terms of Ballot Question 1: terms like "legal status" and "unmarried individuals" and "rights, obligations, privileges and immunities of marriage." And while state Attorney General Bob McDonnell has generously offered his advisory opinion that the"amendment will not modify the application and enforcement of Virginia's domestic-violence laws," or "prevent prosecution of an individual cohabiting in a same-sex or other unmarried relationship for assault and battery," the fact is that state Attorney General Bob McDonnell doesn't get the last word on these matters. Judges do.

Attorneys at the Washington, D.C., law firm of Arnold and Porter, along with more than 200 attorneys and legal scholars around the state, have produced a 70-page memo detailing the unanticipated legal consequences of the gay marriage amendment—consequences including barring unmarried couples from the protections of state domestic-violence laws; nullifying trusts, wills, and medical directives between unmarried couples; and undermining custody and visitation agreements for children of unmarried couples. Characterizing the amendment as "the most expansive such proposal ever to have been put before the voters of any state," the memo raises serious legal problems with its "exceedingly broad and untested language."

Advertisement

Seeking to reassure Virginia voters that this is all merely liberal fear-mongering, the amendment's supporters insist that none of these hypothetical legal issues can ever arise. And how do they know this? Last week, the state's attorney general and lieutenant governor took to the stump to announce that there was no chance the state's high court would invalidate, for example, contract laws or domestic-violence protections for unmarried partners. Come again? The bulwark against this amendment's terrible consequences will be the judges? The same judges of whom we are so terrified that we must amend the constitution? Brilliant.

Instead of speculating about imaginary future judges, let's consider some real ones. While we don't yet have a nothing-marriagelike law here in Virginia, they've passed something close to it in Ohio, where they amended their constitution in 2004 to bar the state from affording any of the legal rights of marriage to unmarried couples. And what have the Ohio judges done with that law? In two appellate courts, judges have struck down the state's domestic-violence law, which protects against battery from a "family member, spouse or a person living as a spouse." The courts found, not unreasonably, that the words "living as a spouse" give an unconstitutionally marriagelike status to unmarried couples.

According to Legal Aid in Cleveland, the result of the current confusion about the enforceability of domestic-violence laws, now unconstitutional in some jurisdictions and not in others, is that unmarried domestic-violence victims there are in "limbo" while police and prosecutors wait to learn whether the law protects Ohio's unmarried couples.

Next month, the Ohio Supreme Court will decide whether Michael Carswell—who allegedly choked his girlfriend and threw her on the floor—is immune from these domestic-abuse laws. And whether they strike down the domestic-violence law or strike down the gay marriage ban, they will likely be excoriated for "judicial activism." Just for the record, the same advocacy group that pushed for the gay marriage ban in Ohio is backing Carswell in claiming that the domestic-violence laws don't apply to him. Evidently, keeping unmarried heterosexual couples safe from abuse is less urgent to them than keeping marriage pure.

Advertisement

Two months ago, Judge J. Harvie Wilkinson III, an esteemed Republican from the 4th Circuit Court of Appeals and beloved shortlister for the U.S. Supreme Court, wrote an almost unprecedented op-ed for the Washington Post, *urging Virginians to vote against Ballot Question 1. Nobody could accuse Wilkinson of being either a liberal activist or a reflexive supporter of gay marriage. His principal concern with the amendment is that, by constitutionalizing that which should merely be legislated, we enshrine in an ageless, timeless document, the passions of a fleeting legal moment. "The more passionate an issue, the less justification there often is for constitutionalizing it," he wrote. "Constitutions tempt those who are way too sure they are right."

Perhaps not everyone in Virginia knows, as I do, loving unmarried families who are attempting to arrange their finances and custody matters to protect their children. Perhaps few of my fellow Virginians have yet been confronted by out-of-state friends who ask, as mine have begun to, "Are you sure you want to live there?" And maybe they haven't yet heard the stories I'm starting to hear about candidates turning down jobs here because of the bigotry that's found a foothold here. 

If you want to protect traditional marriage, fine. You already live in a state that does so in multiple ways. But, before you vote "yes" on this marriage amendment, ask yourself if you're so afraid of imaginary liberal-activist judges striking down all those laws someday that you want our custody, contracts, medical directives, and domestic-violence laws re-evaluated by the judiciary today. Don't end your thinking on this issue by asking yourself whether you believe the institution of marriage should be sacred. Instead, ask yourself whether you believe so strongly in its sacredness that you'd turn Virginia into a vast constitutional Noah's Ark—where only married people are welcome, and the state's 130,000 unmarried couples are leftout in the cold.

A version of this piece appeared in the Washington Post Outlook section.

Correction, Nov. 6, 2006: This article originally labeled Judge Wilkinson's column an editorial as opposed to an op-ed. Return  to the corrected sentence.