Saturday, October 07, 2006

Argument against Marriage Amendment is a 'Mirage'

That's the cute headline on this week's Potomac News column, Argument against Marriage Amendment is a 'Mirage', in which I debunk the argument of the pro-gay-marriage forces that their objection to the Marriage amendment has nothing to do with same-sex marriage at all:

Should marriage be between one man and one woman? That is the purpose of a constitutional amendment presented to voters this November. However, opponents of the Virginia Marriage Amendment say the issue isn't about marriage at all. They want gay marriage, but since most Virginians do not, they know they can only stop the amendment if they confuse people into voting against it.

I describe why an amendment is needed at all:

The Marriage Amendment is needed to protect Virginia from being forced to recognize same-sex marriages from other states. Opponents discount this threat, but just this year a judge overturned Maryland's 33-year-old ban on same-sex marriages, leaving lawmakers scrambling to enact an amendment of their own. Waiting until a judge throws out our law is unacceptable.

I left out California, where a judge had ruled their ban unconstitutional -- because a 2-1 ruling just set aside that ruling, so now we are waiting a state supreme court ruling. You know, even if we were able to WIN such a case, it is a costly thing for the state to have to litigate.

The amendment has two paragraphs. The first paragraph defines marriage as the union between one man and one woman. This is what opponents object to. Claire Gastanaga, manager of the anti-marriage-amendment Commonwealth Coalition, recently said "Our fight is to defeat this proposal so we can debate that first paragraph." But rather than debate gay marriage, a debate they believe they will lose, they instead attack the second paragraph.

It's not to hard to find articles that spell out the opposition tactics, but I was fortunate to stumble across a quote that succinctly made the point, albeit with a clmsy reference to "paragraphs". I wanted to note the amendment only had 3 sentences.

The second paragraph is needed because "marriage" is just a word. Another state could legalize same-sex marriage, but call it something different -- like "mirage." A mirage would be just like marriage, but without the name. Virginia could be forced to honor the rights and privileges afforded to "miraged" people, in direct contradiction to the expressed will of Virginians.

To prevent this, the amendment prohibits a mirage of a marriage. It says Virginia can't be forced to create or recognize an unmarried relationship, or any other union however named, which is set up to look just like a marriage. In other words, only opposite-sex couples can get married, and only married people can be recognized as being married.

If it looks like a marriage, walks like a marriage, and quacks like a marriage, it's pretending to be a marriage, and the amendment will protect us from such end-runs around the will of our citizens.

Opponents say this is "confusing." They claim this paragraph might affect any law that matches a benefit provided through marriage, like wills, contracts, or powers of attorney regarding medical care.

The only thing confusing is the arguments of the opposition trying to claim these harms. Oh, also confusing is how Kaine went from supporting the amendment, to opposed but not fighting the amendment, to opposed and vigorously fighting the amendment, all in the space of one year.

But the Virginia Attorney General says their argument is without merit. He issued a detailed legal opinion covering each specific objection raised by opponents. His rebuttal is really not complicated. Basically, the rights and privileges that the opponents claim would be in danger are not defined by marriage, and therefore can't be misconstrued as imitating marriage.

For example, leaving money to your partner using a will is not a "marriage relationship." Virginia law allows you to leave money to anybody. Likewise, entering into contracts is a right afforded to every person. The laws cited by opponents define rights and privileges without regard to a marriage contract, so those laws cannot be interpreted as an attempt to set up a mirage of a marriage.

McDonell's brief is pretty readable, although a bit dry. It is way too long to summarize neatly, but it deals convincingly with each of 5 straw-men put up by the opposition, of which I just glance over here, on my way to the opponent's big toy gun:

The opponent's most common scare tactic is to suggest the amendment will prevent the enforcement of domestic violence laws for unmarried people. Ohio enacted a similar amendment, and opponents' claim that in two cases a court found the amendment overruled the laws. However, in both cases higher courts threw out these rulings, so the amendment did not affect Ohio's domestic violence laws.

Further, the problem the lower court found in Ohio wasn't the amendment's wording, but rather the Ohio Domestic Violence law itself, which was restricted to a person "living as a spouse." The Virginia law specifically includes non-married relationships -- so in Virginia, protection from domestic abuse is not a "right approximating marriage," it is in fact a right of every person in a domestic relationship.

Frankly, I was surprised to find Ohio gave special protection to spouses that was not available to anybody else, although their courts have ruled both before and after thier amendment that "spouse" was meant to cover these other relationships. Would be better if Ohio re-wrote their law to say so.

State Del. Bob Marshall recently debunked the complaints of "unintended consequences." He noted that 13 of the 20 states with Marriage Amendments have similar language barring "mirage" marriages. There are 99 million residents in those states, but the ACLU has not found a single complaint that rights to contract, to probate a will or to sign a durable power of attorney with respect to medical care have been infringed.

It was nice of Del. Marshall to address the local PWC GOP recently, and provide this piece of information.

In summary:

In short, the argument that the amendment is confusing, or will lead to unintended consequences, has no basis in reality. It is a smokescreen used by organizations that support gay marriage, but know most people don't. They hope to derail the amendment, knowing it will take several years to craft a new one -- years in which they hope the courts, or circumstances, will shift in favor of gay marriage.

If you are wondering where the line was where I say we need to ban same-sex marriage, you won't find it. I figure if the OPPONENTS of the amendment aren't making the argument publicly, why should I refute their non-existant argument.

Maybe the "mirage" and "marriage" thing is a little too cute, or trite. But it might stick in people's heads just because the words are similar.


Citizen Tom said...

Nice defense of the marriage amendment, but there is one other point worth mentioning. It goes back to why we have laws. We have laws to protect rights of people? If a law does not protect anybody's rights, it is not needed.

Why do we need a marriage law? Marriage protects the rights of children. It ensures that both of the parties responsible for the conception of a baby take responsibility for the baby's welfare. Hence the need to regulate the union of heterosexuals. Only heterosexual relationships have the potential to produce babies.

Since homosexual relationships do not produce babies, there exists no practical reason for the state to recognize such "marriages." Licensing such "marriages" would only serve as an endorsement by the government. Issuing such endorsements is not the proper role of government.

hr_conservative said...

Being added to my "Marriage Hall of Fame"

This is a great post and love the part where Del. Marshall says that out of 90 some million residents, not one person can the ACLU find to file a lawsuit!

Anonymous said...

Great article debunking the smokescreen.