Monday, August 08, 2005

Virginia Set to Ban All Unmarried Relationships

If the proponents of the current marriage amendment proposal have their way, by 2006 Virginia will amend its constitution to ban any legal recognition of any unmarried relationship (gay or straight) that purports to "approximate" the "effects," "significance," design" or "benefits of marriage."

What you say? "I support a ban on "same sex" marriage, but what's all this other stuff?"

The proponents of the so-called "marriage amendment" now wending its way through the legislature to a vote by the people keep talking about it as if it doesn't do anything more than define marriage as between a man and a woman.

Nothing could be further from the truth.

I respect the right of individuals to believe that civil and religious marriage should be reserved to couples made up of one man and one woman (though I personally believe strongly that civil marriage should be available without discrimination).

I also accept that some individuals believe that we should amend the state and/or federal constitution to accomplish this objective (though I believe that this is dangerous, unnecessary, immoral and discriminatory).

But, I respectfully suggest that many who currently are lending their support to the proposal now before the Virginia legislature have not read it.

Here's what it says:

Section 15-A. Marriage.
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.

As now proposed, the amendment goes well beyond reserving civil marriage to one man and one woman.

It prohibits the state and its localities from providing any legal recognition to any relationship between "unmarried individuals" that "approximates the design, qualities, significance or effects of marriage."

No "unions", no "partnerships," no "other legal status."

If adopted, this amendment would likely be interpreted to render unconstitutional:

1) the bill just passed this past Session that allows small businesses and insurers to agree on health insurance plans that cover members of households other than spouses, kids, including domestic partners (in fact, I believe that at least one of the conference committee members who rewrote the legislation after it passed the House and Senate was intent on forcing this outcome);

2) enforcement of the domestic violence laws where violence is between two unmarried people (gay or straight) who are living in the same household (perhaps with children common to both or belonging to one)(this is already being argued in Ohio which has language similar to the first two sentences of the current Virginia proposal);

3) loans/mortgages to two unmarried people wishing to buy a house together; and/or

4) access to the courts by parties to an unmarried relationship who wish to enforce a guardianship agreement, will, or other legal agreement purporting to approximate the "effect of marriage" through a contractual agreement.

Because we would be amending the constitution, we would be divesting the legislature (elected by the people) of the ultimate authority to define what it means to "approximate the effects of marriage" and giving the job to the courts.

So, the right question for candidates running this year is NOT "do you support a marriage amendment that defines marriage as between a man and a woman?"

That's not the issue now before Virginians or the 2006 General Assembly.

The proper question is "do you support the current proposal to amend Virginia's constitution to outlaw any legal recognition of relationships between unmarried couples whether gay or straight?"

If the answer is yes, these follow up questions are appropriate:

"why do you support amending the Virginia constitution to define marriage when there has been no legal challenge to the Virginia law prohibiting same sex marriage since it was first adopted in 1975, thirty years ago?"

"why do you think that the state should ban all recognition of unmarried relationships?

If the answer is no, the proper follow up question is:

"will you vote against this proposed amendment in the 2006 General Assembly session?" If the same exact language isn't passed again this year, the proposal cannot be put to the voters before 2008.

Isn't it "conservative" to require proponents of an amendment to the Virginia constitution to provide credible evidence that there is a compelling need to change the status quo, particularly, where, as here, the current proposal has potential unforeseen and, almost certainly, unwelcome consequences?

Wasn't that what opponents of the Virginia Equal Rights Amendment kept arguing when they wailed about forced co-ed micturating?

If the so-called "marriage" amendment passes as now written, you can forget trying to forge any kind of legal relationship with your "significant other." Heck, if you're trying to approximate the benefit or effect of marriage by leasing an apartment together, you may not even be able to enforce the lease against your partner if he or she moves out.

Is this what Virginians want? I don't think even a majority of those who want to ban same sex marriage want to go this far.

At a minimum, it's time to rethink the language of the proposed amendment.

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