House marriage proposal raises serious concerns
Pro-family advocates are hailing the passage of marriage amendment bills this week in both houses of the Virginia legislature. The Senate proposal would bar the Commonwealth and its political subdivisions from giving a legal status to relationships that “intend to approximate” various aspects of marriage, while the House proposal would bar recognition of any relationship “to which is assigned” of the various incidents of marriage.
The good news is that both houses of the Virginia General Assembly voted overwhelmingly to preclude the government from creating or recognizing “gay” marriages, civil unions, domestic partnerships or any other counterfeits to marriage. The bad news is that there are still some concerns about the way the amendment language was written in the House of Delegates, which could negatively impact the final wording, and ultimately jeopardize the intended effect of the amendment.
Since early November, Family Policy Network has focused almost exclusively on working to find and promote the best language possible for a Virginia Marriage Amendment. Hundreds of hours have been spent consulting with constitutional attorneys from groups like Alliance Defense Fund, American Family Association, Citizens for Community Values, Concerned Women for America and Liberty Counsel to determine the best language possible to protect the institution of marriage in the Commonwealth of Virginia. (NOTE: Mentioning these organizations does not imply that any or all of them have endorsed any particular language or position in the debate over the best marriage amendment language for Virginia. Rather, it only means their collective advice and counsel is the basis for FPN’s own perspective in the struggle to determine the best language for such an amendment.)
One of the difficulties involved in determing the best language for a state marriage amendment is the fact that there are so few court decisions resulting from such amendments in other states. This is because state marriage amendments are so new. One pro-family attorney describes this problem as a “black hole” in court precedent, which often keeps anyone from knowing what one version of a marriage amendment will do over another.
With a tremendous amount of counsel from eight pro-family attorneys (five of whom are actually litigating cases involving marriage laws in other states), Family Policy Network has endorsed the marriage amendment proposal that passed by a 30-10 vote in the Virginia Senate. Unfortunately, we are NOT able to endorse the language that passed by a 78 to 18 vote in the House of Delegates.
REASONS FPN OPPOSES THE HOUSE VERSION OF THE VA MARRIAGE AMENDMENT
Reason #1: The House proposal ONLY bars recognition of CERTAIN relationships – namely ones that derive certain things from the Commonwealth.
Homosexual relationships and/or unmarried heterosexual relationships could still be legally recognized by the Commonwealth and its political subdivisions if the House language prevails
Around the country, over fifty local governments have created registries so that any two “committed” adults can sign up for a fee, and declare that they are “partners.” Several localities; including St. Louis, New Orleans and Key West have instituted such registries; thereby granting legal recognition to non-marital relationships.
Unfortunately, the House language would not preclude localities or even the General Assembly from creating domestic partner registries – as long as no benefits are granted to those who join the list. That is precisely the situation in Cleveland Heights, Ohio – where the City Council created a registry to sanction non-marital relationships, but without conferring any governmental benefits.
A legal battle over the registry’s existence began before the voters in Ohio passed a marriage amendment to that state’s constitution. Unlike the current House proposal, the Ohio amendment precludes government entities from recognizing “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”
The House language states:
“This Commonwealth shall not recognize or create another union or partnership to which is assigned the rights, benefits, obligations, or status of marriage.”
Here’s the problem: What if a Virginia locality creates a registry like Cleveland Heights which, according to one pro-homosexual news source, “offers no legal or health benefits to couples, but is ‘an important affirmation of non-traditional families’?” Cleveland Heights created the registry so private companies could use it for verification purposes. That way, employers and insurance underwriters would not have to investigate claims of partnerships. Instead, they can just check with the locality.
Reason #2: The House proposal would actually jeopardize marriage benefits by making the Constitution dependant on the code.
In the future, state and local lawmakers could only grant certain rights, benefits, etc. to so-called “non-traditional” couples – but first would have to REMOVE them as benefits of marriage.
The House proposal states:
“This Commonwealth shall not recognize or create another union or partnership to which is assigned the rights, benefits, obligations, or status of marriage.”
Question: How are “the rights, benefits, obligations, or status of marriage” assigned?
Answer: They are found in the code.
Therefore, if a future General Assembly wanted to grant certain things to so-called “non-traditional” couples, lawmakers would be tempted to change the code to remove those things as automatic results of marriage. After all, it would be much easier to change the code than to change the Constitution.
Reason #3: The House version stands a good chance of being struck down by a federal court because of the way it is written.
The wording of the House version appears to ban same-sex relationships in a way similar to Colorado’s “Amendment 2,” which was struck down by the U.S. Supreme Court in the 1996 case known as “Romer vs. Evans.”
When the people of Colorado voted to amend their state Constitution to ban government policies designed to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships,” conservatives in that state were jubilant. However, joy turned to sorrow when the U.S. Supreme Court determined that the amendment was “inexplicable by anything but animus toward the class that it affects.” In other words, the Court was unwilling to allow the amendment to stand because it was against people who engage in homosexual behavior, rather than being for marriage, which (directly or indirectly) benefits every member of society.
The House version is written in a way much like Colorado’s Amendment 2. It looks like a denial of rights to homosexuals, rather than public policy to establish the preeminence of one-man, one-woman marriage. The legislative summary even lists as examples of its intended effect, bans on four things: same-sex marriages, same-sex civil unions, same-sex domestic partnerships, and “the like.” Perhaps “the like” refers to anything that might begin with the words, “same-sex”! – – That sure sounds like a proposal that would be vulnerable to an easy federal court challenge under Romer vs. Evans.
Supporters of the House version contend that the preamble provides the positive reasons for affirming marriage, and indeed it does. However, it appears that the preamble is merely a Band-Aid that intends to cover what clearly appears to be motivated by animus in the rest of the bill.
Reason #4: The House version of the marriage amendment would create political problems for its supporters when it goes to ballot for ratification by Virginia voters.
The same appearance of animus in the current proposal will put the proposal and its supports at a disadvantage when it appears on the statewide ballot.
When the campaign for the marriage amendment gets underway, everyone knows what kind of attacks the language will suffer. For that matter, some of the members of the General Assembly will be attacked for supporting it. Why, then, would legislators want to propose language that smacks of the same animus that the U.S. Supreme Court struck down in Colorado? Instead, they should propose language that positively establishes the preeminence and exclusivity of one-man, one-woman marital relationships in the Commonwealth.
The following language, passed by the Virginia Senate, is a replica of the language passed in November by the voters of Ohio. It is clear and short, and avoids the problems mentioned here as difficulties in the language passed by the House of Delegates:
“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 effect of marriage.”
This Senate marriage amendment language is superior to the House version in the following ways:
– It is SHORT, yet clear.
– It bars recognition of ANY non-marital relationships, rather than just ones that derive certain rights, benefits, etc.
– It is a POSITIVE affirmation of marriage, which:
a.) is much less likely that the House version to trigger a federal court challenge under Romer vs. Evans.
b.) is much more likely than the House version to draw a larger number of voters to support it on the ballot.
This Senate version of the Virginia Marriage Amendment better represents what legislators and citizens alike want to accomplish, which is to affirm and protect the centuries-old definition of one-man, one-woman marriage.