The culture wars are raging in Virginia, as this year’s election season has become embroiled in a bitter campaign to prevent legal recognition for “relationships of unmarried individuals to approximate the design, qualities, significance, or effects of marriage.” Polls show that although a majority of Virginians support the Marriage Amendment, Northern Virginia voters are squarely opposed to it. According to Del. Adam Ebbin (D-49), the intensity of sectional opposition might spill over into the Senate race between Republican incumbent Sen. George Allen and Democratic challenger Jim Webb.
“The presence of this amendment on the ballot might end up driving Northern Virginia voters to the polls in greater numbers,” Ebbin said. “And that may hurt Allen because he is perceived as a racist right winger.”
During a recent public forum at the Durant Center, Ebbin and Fairfax County trial attorney Faisal Gill debated the merits of the proposed amendment. Gill, who represented Virginians for Marriage and the Family Foundation, said that the purpose of the amendment is to prevent legal recognition of gay marriages from other states. Putting his money where his mouth is, Gill offered pro bono representation to any clients who claim that the amendment has imperiled their contracts, wills, inheritance or advanced medical directives.
“I believe that marriage should be between a man and a woman,” Gill said. “Thus far, the debate over this amendment has focused on the legalities. If we want to be intellectually honest, we will have a debate about the policy issues.”
Gill argued that the full-faith-and-credit clause of the United States Constitution could be interpreted to force Virginia to recognize gay marriages originating in Massachusetts or civil unions from Vermont. He said the amendment was a proactive measure to prevent such recognition, and that those who oppose the measure are trying to confuse the central issue of gay marriage by focusing on potential consequences of the amendment.
“Are we going to have a policy debate or are we going to confuse the issue?” Gill asked. “Except for the rights of same-sex couples to get married, this amendment does not take any rights away.”
SUPPORTERS OF THE AMENDMENT say that its language is necessary to inhibit what they call “activist judges” from ruling in favor of legal recognition of gay marriage or civil unions from other states. Although Gill declined to name any specific activist judges, he said that he currently practices before one in Fairfax County whom he says thinks that laws designed to curb drunk driving are unconstitutional.
“As a lawyer, I can tell you that Virginia has activist judges,” Gill said. “And the purpose of the amendment is to prevent one of Virginia’s activist judges from recognizing a same-sex union from another state.”
Gill said that arguments about contracts, wills and advanced medical directives are a distraction from the real issue — whether or not Virginia should legally recognize the union of same-sex couples. He said that such recognition would be an attack on marriage, which he called “the most sacred of institutions.”
“Do we want to say that marriage is meaningless?” Gill asked. “And if we recognize same-sex couples, where do we draw the line after that?”
OPPONENTS OF THE AMENDMENT say that societal norms that have traditionally discriminated against gays are changing. Likening the struggle for recognition of gays to the civil rights struggle of the 20th century, Ebbin said that Virginia would always be slow to change — and that other states would serve as the battleground for the gay rights debate. In the meantime, Ebbin said, Virginia voters should not weaken the historic Bill of Rights written by George Mason in 1776.
“If it ain’t broke, why fix it,” Ebbin said. “Virginia is not going to become the Las Vegas of gay marriage.”
The campaign against the proposed amendment has argued that nobody knows what the consequences of the new language would mean for Virginia. They have asked a series of questions about potential outcomes: Will powers of attorney hold up? Will unmarried longtime partners be allowed visitation rights in hospitals? Could hostile family members use the language in the amendment to overturn the will of a gay couple?
“This is a lawyer’s dream,” Ebbin said. “The reality is that we don’t know what the consequences of this are, and we’ll have to wait until someone files suit.”
GAY MARRIAGE has been prohibited in Virginia since 1975, when the General Assembly enacted a statute declaring that “a marriage between persons of the same sex is prohibited.” That law was amended in 1997 to exclude recognition of same-sex marriages from other states and again in 2004 to prevent recognition of same-sex unions from other states. The proposed amendment to Article 1 of the Virginia Bill of Rights would prohibit Virginia and its counties, cities and towns from recognizing any legal status by any name that is comparable to marriage.
The process that led to its inclusion on the November ballot began during the 2005 session of the General Assembly, when the House of Delegates passed a measure to amend Virginia’s Constitution defining marriage as the “union between one man and one woman.” In accordance with the procedure outlined in Virginia’s Constitution, identical language had to pass the House of Delegates again after an intervening election. When this happened earlier this year, the amendment was added to this year’s election slate. According to a Sept. 14 advisory opinion from Virginia’s Republican attorney general, the amendment will not have the kind of unintended consequences that its opponents fear.
“It is my opinion that passage of the marriage amendment will not affect the current legal rights of unmarried persons involving contracts, wills, advance medical directives, shared equity agreements or group accident and sickness insurance policies, or alter any other rights that do not ‘approximate the design, qualities, significance, or effects of marriage,’ or create ‘the rights, benefits, obligations, qualities or effects of marriage,’” wrote Attorney General Robert McDonnell in the formal opinion. “It further is my opinion that passage of the marriage amendment will not modify the application and enforcement of Virginia’s domestic violence laws.”
Although Gill used the attorney general’s opinion as proof of his position, Ebbin was dismissive of the document.
“It’s not worth the paper it’s written on,” Ebbin said, adding that McDonnell’s campaign took money from religious conservatives such as televangelist Pat Robertson. “He’s just trying to please his far-right patrons.”
AFTER THE DEBATE, those in attendance lingered at the Durant Center to chat about the issue. The vast majority of attendees seemed to oppose the amendment, citing a number of concerns about civil rights, unintended consequences and basic issues of fairness.
“I agree with Adam,” said Brigitte Guttstadt. “If it ain’t broke, don’t fix it.”
Dorathea Peters also said she opposed the proposed amendment.
“I think its typical of those who are for the amendment to refuse to say what the rights, benefits and obligations of marriage are,” Peters said “That can affect people if this passes.”
“I don’t think I was a popular person,” Gill said before exiting the Durant Center. “But my goal was to make people think.”