Tuesday, May 16, 2006

VA Marriage Amendment -- a bad idea made worse

What if judges interpret the proposed marriage amendment to the state constitution to mean what it says?

For a refresher, the full text of the amendment:

"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 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"

A. Barton Hinkle wrote in today’s Richmond Times Dispatch,

The Commonwealth needs the amendment, its advocates contend, because activist judges could override the existing statutory language restricting marriage to one man and one woman.

Yet the amendment's language may go beyond the one-man-one-woman restriction in its first sentence. The second and third sentences also forbid creating or recognizing a "legal status" for "relationships" that "approximate the design, qualities, significance, or effects of marriage" or recognizing any "partnership . . . to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

Amendment foes contend such language is too sweeping and could have unintended consequences. They warn it could impede the enforcement of domestic-violence laws, for instance, or prevent someone from authorizing a friend to make end-of-life decisions through an advance medical directive. Such consequences already have come to pass elsewhere. In late March the Dayton Daily News reported: "County prosecutors cannot charge some unmarried people under Ohio's domestic violence law because it conflicts with the state constitutional amendment banning gay marriage, this area's state appeals court ruled Friday." Other courts have ruled differently, and the question remains unsettled.

He goes on and discusses the language in that will appear in official explanation of the amendments promoted by Attorney General Bob McDonnell and approved by the Senate P&E Committee which downplays the language of the amendment beyond the first sentence.

…….But isn't the case for the marriage amendment also built on a hypothetical -- the possibility that a judge in Virginia might take a page out of Massachusetts' book and declare homosexual marriage a right by fiat?

IF ACTIVIST judges can disregard the existing law on marriage and interpret the Virginia Constitution to force homosexual unions down the state's throat, then could they not also disregard other existing laws and interpret the marriage amendment to produce regrettable unintended consequences?

The Virginia General Assembly seems to have a certain knack at taking a bad idea and making it worse.

Read Hinkle’s piece here.

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