Thursday, September 14, 2006

Attorney General's debunks the views of the Legal Review Committee

In this opinion, the Attorney General's office explains why the marriage amendment will not have the broad effects that are hypothesized in the D.C. law firm's brief written for the Virginia Legal Review effort.

The opinion says that the amendment won't affect contracts, because the right to make contracts has nothing to do with being married or not being married, and the same is true with wills, advanced medical directives, joint property ownership, and insurance contracts. The opinion goes on to explain that the domestic relations laws are not tied to marriage, either, and in a lengthy footnote, distinguishes the minority view of the courts in Ohio, where 2 out of 10 courts have ruled that Ohio's marriage amendment made the enforcement of the domestic violence law unconstitutional.

These kinds of legal arguments against the marriage amendment are at best speculative and at worst phony. Notwithstanding my respect for Claire Gastanaga, who seems to be everywhere all the time in this debate, I think her legal arguments are mostly bogus and provide no basis for making a decision about how to vote on the marriage amendment.

That is not to say that there are no interesting legal issues to consider in deciding whether whether it is a good idea to amend the Constitution on top of the statutory prohibitions against same sex marriage. There are only two ways that it might be, if you are an opponent of same-sex marriage. One is if you think that like the court in the Goodridge case in Massachusetts, the Virginia Supreme Court is going to apply the provisions of the state constitution to declare that state laws prohibiting same sex marriage are unconstitutional. That seems unlikely.

The other is whether a constitutional amendment is necessary or desirable to clarify and emphasize what is the public policy of the Commonwealth in opposition to same sex marriage, so that Virginia courts can refuse to apply judgments and laws from other states that allow same sex unions. We know from the Virginia-Vermont dispute that already at least one circuit court in Virginia has refused based on the public policy stated in existing Virginia law to apply the domestic partner law of Vermont.

If it is true that the proposed amendment is not of much practical use to the opponents of same sex marriage, there's nothing left to say for it other than it is an over-reaching, somewhat irrational response, to the over-reaching, irrational efforts by the proponents of same-sex marriage to litigate their way around the democratic process. In that case, I don't approve of either the cause or the effect.

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