Position on Virginia’s Proposed Constitutional Amendment Submitted to Voters for November 2006


The Marshall/Newman Amendment would read:


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


Equality Virginia is mounting a large campaign to defeat this amendment. Of course, supporters of anti gay-marriage amendments know that they can use deceptive language, polarize voters with wedge issues, and tie up the resources of advocacy organizations with self-defensive activity. The Commonwealth Coalition has a a website, "Votenova" that gives many details.


Of course, this amendment should be defeated, as should all similar amendments in all states and any future federal amendment. First, a constitution should deal with matters of governance, not with public policy, which should be addressed by statutes. And constitutions should not target people to take away their rights, or force some people to make sacrifices for others. For example, there should not be a constitutional amendment to guarantee an otherwise social right of health care, because then at a constitutional level others could be forced to “sacrifice” their rights for the rights of one group. It is appropriate, as I developed in my books, to reinforce individual rights (such as a "right to be left alone") as fundamental with constitutional amendments or rulings. In Virginia, the amendment as proposed (compared to similar amendments in other states) doesn't just stop with prohibiting "civil unions"; it could undermine even legitimate business relationships of same-sex "couples", possibly interfere in unprecedented ways with private businesses that would offer domestic partnership benefits to employees, and interfere with otherwise legitimate child custody rights. The amendment sends a message to GLBT people: "Go away, lead your own lives on an inaccessible other planet light years away from us, and don't take any responsibility for other people; your lives don't matter enough."


Of course, conservatives claim that this amendment is needed to “protect” the “sanctity of marriage” from “activist judges,” and (despite the federal DOMA law) to prevent the Full Faith and Credit Clause from being used to force Virginia to honor same-sex marriages from other states (like Massachusetts). Both sides seem to be simplifying the argument as much as possible for what they perceive as intellectually lazy and impressionable voters. There is some elaboration offered. We maintain that the amendment takes away rights of GLBT people, and conservatives argue that everyone has the same right to marry an opposite sex member and participate, at least symbolically, in the biological paradigm for transmitting life and rearing the next generation--thereby "earning" social approbation and privileged deference from others. Liberals argue that gays are born biologically different, as if such an observation (if true) could absolve gays of equal responsibility for others.  Often the arguments stop short there. Left unarticulated are the different psychological commitments different kinds of people make to different areas of life: For some people, biological lineage seems to be the most important value that they know, whereas for others personal aesthetic selection and expression is the paramount value. These cultural priorities will come into conflict at deep personal levels, as in families with GLBT children.


An anti-gay-marriage amendment is bad constitutional law. As a public policy issue, same-sex marriage becomes important when it is put on the table along with a long list of other issues dealing with shared social obligations. Particularly today a troubling question is how the difficult sacrifices and challenges that it takes to defend freedom, raise kids, take care of the elderly and give every one dignity are to be made and apportioned.  These responsibilities can exist even for people who do not "choose" to have their own children. That’s why gays in the military, gay marriage and gay adoption become important moral issues. Sharing of responsibility would invoke a whole list of other legal and practical questions, about the availability of both more heterosexual parents and gays to adopt children, about how the burdens of caring for an increasing elderly population will be handled (in the face of failing pensions, lower birth rates and longer life spans), and common responsibility raises the threat that state filial responsibility laws could be enforced much more vigorously than they are now (especially in Virginia). An exposition of these issues would provide a lot of rich material to justify further arguments for gay marriage, as a statutory (but not constitutional) matter. The behavior of many conservatives, however, demonstrates bad faith indeed: It seems as though some social conservatives envision a strategy of forcing people disinclined to marry (heterosexually) in order to create their own biological lineage, to remain second class citizens at the beckon and call to provide contingent support those who do have children. After all, that is how things were a couple of generations ago. But whatever one's "moral" ideology, that kind of policy can harm children and elderly parents (that is, vulnerable people) of GLBT people in many circumstances, and can undermine the respect for life itself, a value ordinarily of prime importance to conservatives and to our whole civilization. 


©Copyright 2006 by Bill Boushka, subject to fair use


On April 10, 2006 Gov. Timothy Kaine of Va. (D) refused to sign the bill placing it on the ballot as a referendum for voters in November. It remains to be seen whether the veto will be overridden or whether Gov. Kaine would sign a reworded bill. The governor said that was extremely concerned about the unintended consequences for unmarried heterosexual couples.


On April 21, 2006 the AP reported that a state Senate committee was adding language to a draft of an "explanation" for voters that the "law is not meant to target relationships unless they mimic 'the design, qualities, significance or effects of marriage.' "

 Blogspot essay (10/20?2006): here.   Nov 7 2006 result blogspot entry  amendment passes

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