After four judges on Massachusetts’ Supreme Judicial Court ruled that denying marriage benefits to gay couples violated their constitutional rights, many states asked voters to approve amendments to their own state constitutions saying otherwise. Voters did so, unequivocally. All 20 of the 20 marriage amendments put to a popular vote passed; 13 on the 2004 ballot with overwhelming majorities.
Now eight more states — Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Wisconsin and Virginia — are doing the same. Since 41 states already have laws outlawing same-sex marriage (including Virginia and Maryland), at first glace such amendments do appear to be unnecessary, as amendment opponents maintain.
They’re not. For the past two years, the American Civil Liberties Union has been actively seeking plaintiffs to challenge Virginia’s prohibition of same-sex marriage. The proposed amendment is insurance against out-of-state judges (like the four in Massachusetts and another in Maryland) imposing same-sex marriage from the bench, even in states like Virginia where the people’s elected representatives have soundly rejected it.
This is the way an oligarchy is governed, not a democracy.
Preventing unelected judges from changing the legal definition of such a fundamental institution without the consent of the people is reason enough to vote “Yes” on Virginia’s constitutional amendment question. A recent Washington Post poll found that 53 percent of likely voters plan to do just that, with black voters favoring it by an even larger 61 percent to 34 percent margin.
In a Sept. 14 advisory opinion, Virginia Attorney General Robert McDonnell noted that passage “will not affect the current legal rights of unmarried persons” involving contracts, wills, advance medical directives, end-of-life decisions, shared equity agreements, real estate transactions, joint bank accounts, group insurance policies or domestic violence laws. They would retain their current right to enter into enforceable legal contracts with whomever they choose. In other words, nothing would change for them.
However, legal experts at the Becket Fund for Religious Liberty warn that legalizing same-sex marriage would roll back religious freedom for many others in areas of taxation, charitable giving, housing, public accommodations and professional licensure. They cite Boston Catholic Charities’ decision in March to stop placing any children for adoption for fear that a Massachusetts courts would force them into an untenable position regarding their own church laws.
What Virginia’s marriage amendment really attempts to do is prevent what happened in Massachusetts, Vermont, Hawaii and Maryland, where state courts altered or struck down statutory definitions of marriage. A court can’t logically declare a law “unconstitutional” if the same wording is itself part of the constitution. But this is what you get when you send the judiciary to do a legislature’s job.
The Virginia General Assembly passed the current marriage amendment twice, as required by law, with an intervening election leaving no doubt as to the intent of the oldest legislative body in North America: to preserve traditional marriage without infringing upon the existing rights of unmarried persons. Voters will now decide whether the commonwealth’s centuries’ old protection of marriage “between one man and one woman” will be swept aside by the courts or continue for future generations.
