Monday, September 11, 2006

On the Virginia Legal Review Committee

Somewhat in the manner of Wisconsin's Attorneys Against the Ban, opponents of the same-sex marriage amendment in Virginia have collected lawyer names for a Virginia Legal Review Committee.

Related to this effort, the website post a link to this brief from a D.C. law firm, speculating on the effects of the amendment on Virginia law. Arnold & Porter has previously evidenced its willingness to try to correct the backwardness of the Commonwealth, as in the case of the Commonwealth against Roger Keith Coleman, which resulted in litigation against the firm for defamation. Their most famous pro bono case was the representation of Clarence Earl Gideon before the U.S. Supreme Court by former Justice Fortas. The supervisor of the project does not appear to be a Virginia litigator or business or domestic relations or criminal defense lawyer, but that doesn't matter, I don't guess. Some of the names I recognize on the list certainly are Virginia lawyers with expertise in those areas.

One of these days, I'll post my views on the amendment. I think that probably I am against it, just because it is mean-spirited and mostly a waste of time. The key legal issue, in my view, is wholly omitted from the Arnold & Porter brief, and that is whether a constitutional amendment, as opposed to mere legislation, would improve Virginia's position if and when the question is raised as to whether Virginia's institutions are obligated by the Full Faith and Credit clause of the U.S. Constitution to honor same-sex marriages or other domestic arrangements that are recognized by the laws of other states, principally Vermont and Massachusetts. I would not expect that the Virginia Supreme Court, notwithstanding its lame decision in the Martin case, will ever come out with an opinion like Goodridge. Indeed, the more liberal appeals courts in New York and Washington state have refused to join Massachusetts in finding state marriage laws unconstitutional.

Besides the legal arguments, I think the stigmatization of homosexuals for mostly political purposes is offensive, and an unfitting subject of legislative priority.

I agree with the Arnold & Porter brief only in its conclusion that the untested language of the amendment is indeed, untested, and uncertainty invites litigation. The application of the amendment to private arrangements strikes me as remote. The point of the amendment is to deny to same-sex couples the hundreds or thousands of benefits to which married couples are entitled by operation of law. Married couples don't have to make private contracts. As for the application of the amendment to opposite-sex couples, my outlook starts with the notion that "[c]onstitutional provisions in pari materia, like statutes, are to be construed together, and effect is to be given to the policy established by the Constitution." Swift & Co. v. City of Newport News, 52 S.E. 821, 823 (Va. 1906). The attempt to isolate the later sentences in the proposed amendment from the first sentence strikes me as unsound, and that first sentence makes plain that that the amendment is targeting same-sex marriage.

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