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McDonnell Opinion on Same-Sex Marriage Ban

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James A. Bacon
in

Attorney General Bob McDonnell has issued an opinion on the same-sex marriage ban, specifically upon the question of whether the proposed constitutional amendment would affect the rights of unmarried persons involving contracts, insurance policies, shared equity agreements and advance medical directives.

Money quote:

“The intent of the amendment is clear. The first sentence defines marriage as solely the union between one man and one woman. The second and third sentences collectively prevent attempts to establish same-sex marriage, or similar relationships that attempt to create marriage-like unions by any other name.

The General Assembly’s own official explanation of the Marriage Amendment, passed on May 12th of this year, clearly states that all other legal rights, benefits and obligations continue to be available to unmarried persons. I can find no legal basis for the proposition that passage of the marriage amendment will limit or infringe upon the ordinary civil and legal rights of unmarried Virginians.”

Somehow, I doubt this will settle the issue.

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14 responses to “McDonnell Opinion on Same-Sex Marriage Ban”

  1. Married Man Avatar
    Married Man

    This is a very well written opinion. In the opinion McDonnell points to the true legal implications of the amendment.

    As you said, this isn’t really news. The opinion is mainstream. Even Creigh Deeds and Don McEachin support his amendment… also remember that it has broad bi-partisan support.

    The AG is doing his job and doing it well. He is simply calling the law as is… not as it should be or what anyone wants it to be. He answers the questions out there. Consequently, the opponents of the amendment should be honest and debate the amendment. The big question is “what form should marriage take in Virginia.” That’s what the amendment is all about.

  2. Anonymous Avatar
    Anonymous

    So now 80 percent of the General Assembly, the Attorney General and the State Board of Elections agree – opponents are flat out wrong.

    Issue settled.

    Survey USA Poll today: 68 percent yes, 29 no.

  3. David Avatar
    David

    Are you the same anonymous who said he’s going to “kick us back under our rocks,” whatever that means? You kind of sound like him.

    No, all that this advisory opinion does is to highlight the fact that nobody really knows what this amendment says, because opinions differ so broadly – ask five legal scholars, get five different opinions. And, the AG didn’t answer “the questions out there.” He only answered the questions asked by Bob Marshall. What we have here is a case of dueling legal memos, not really something you want in your Bill of Rights.

    By the way, the State Board of Elections hasn’t actually had a chance to weigh in on this – the AG wrote that explanation, too.

  4. James Young Avatar
    James Young

    Yeah, David. God knows, we never have “dueling legal memos” about the “Bill of Rights.” The Supremes just sit up there in their temple with their thumbs up their fundaments.

    What a maroon!

  5. Anonymous Avatar
    Anonymous

    I’ll take the legal opinion of Arnold & Porter over Bob McDonnell’s political opinion any time, any day.

  6. Anonymous Avatar
    Anonymous

    Creigh Deeds, McDonnell’s opponent, voted in favor of this amendment (this langauge!) 5 times.

    Do you accept his opinion?

  7. David Avatar
    David

    Oh my. How revealing that JY puts our Bill of Rights in scare quotes. That speaks volumes.

    Anon 12:02: No.

  8. Chris Porter Avatar
    Chris Porter

    It is not accurate to say that the opinion written by three lawyers is inherently “legal” while the AG’s opinion is inherently “political.”

  9. CG2 Avatar
    CG2

    Suffice it to say that the AG’s opinion resolves nothing, in part because it is not controlling legal precedent, although it is entitled to some deference by the courts.

    The “explanation” written by his office was criticized by the professional lawyers in the Division of Legislative Services in writing and in committee as not “neutral” as required by law.

    Taking a diametrically opposed view of the amendment is a 70 page memorandum written by the Washington law firm of Arnold and Porter to which more than 125 Virginia lawyers and legal scholars (including two former Virginia AG’s and one former Republican candidate for AG and Governor) have added their names saying that they agree with its analysis and conclusions and expressing concern about the significant and substantial legal consequences of the proposed amendment.

    Best we can say about whether this issue is “settled” or not is: good lawyers on both sides of the debate are 180 degrees apart, and we now have dueling legal opinions.

    Voters exercising common sense need do no more than read all of the language of the amendment to see clearly for themselves that a lot of it reads like legal nonsense.

    What’s a conservative voter who doesn’t want to take unnecessary legal risks with our bill of rights to do?

    Vote NO.

    Actually, Jim, I would have thought that Judge Jay Harvie Wilkinson’s oped would have put this issue to rest for conservatives. He said … conservatives would “leave constitutions alone.”

    Or, perhaps, more persuasive, Bart Hinkle’s blog post highlighting the fact that the language of the amendment turns the job of interpreting this vague and ill-crafted proposal over to “activist judges”:

    “McDonnell says he can “find no legal basis for the proposition that passage of the marriage amendment will limit or infringe upon the ordinary civil and legal rights of unmarried Virginians.” But what’s to stop an “activist judge” from doing so?”

    If you don’t want the government in your home or private life, if you don’t want to write discrimination into the constitution, if you don’t want to risk years of litigation when there is no compelling reason to do so … the conservative choice is clearly to vote NO on ballot question #1.

    P.S. Delegate Donald McEachin now opposes the amendment saying that, like the blind man in the new testament, he had to be touched twice to “see” the amendment for what it is.

    Disclosure: This will amaze… I am an advocate on this issue. Read my bio, upper right, for full details. 🙂

  10. Jim Bacon Avatar
    Jim Bacon

    I’m inclined to buy J. Harvie Wilkinson’s argument on this issue. The state constitution, like the U.S. constitution, should provide the framework for the governance structure and fundamental rights of the citizens. It should not be cluttered up with what properly belongs to the realm of legislation. I can understand and sympathise with those who want to protect themselves against the activism of leftist judges who would likewise trample constitutional principles and impose their minority views upon a majority — and, in this issue, impose it upon minorities of other states. But I’m not persuaded yet that this amendment is the best way to do it.

    I don’t follow the issue that closely, but my sense is that the judicial activism on the same-sex marriage issue is in retreat. Virginia may be trying to protect itself from a receding threat.

  11. Chris Porter Avatar
    Chris Porter

    Judge Wilkinson is very smart – far smarter than me. However, he is wrong to say that there are not policy choices in the U.S. Constitution.

    This issue was already addressed over at Bench Memos
    * No taxation of exports
    * No preferential treatment of one state’s ports over another
    * No state printing of money
    * No state may impair the obligation of contracts
    * No titles of nobility
    * How to count people for a census

  12. Chris Porter Avatar
    Chris Porter

    CG2: “what’s to stop an “activist judge” from doing so?”

    Answer: Nothing. However, if we acknowledge that activist judges could rule either way, then the majority can express its public policy preference in the strongest possible terms. That increases the liklihood that the “activist’s” action will be overruled on appeal.

  13. James Atticus Bowden Avatar
    James Atticus Bowden

    Our opinions are as individual as we are. So, too with judges.

    I think the amendment to stop flag descrecation is absurd – even the word descrecation applied to the flag is ridiculous.

    Yet, I support the amendment (at the Federal and Virginia levels) to protect the fundamental institution in the country – the family based on marriage – because it is at risk from judges.

    Amendments pour the constitutional concrete needed.

    The homosexual agenda is to have legal marriage. I quoted a fellow saying so on Hampton Roads Politics blog on my blog, Deo Vindice.

    So, the ‘NO’ folks should have commercials and billboards saying the truth, “We want homosexual marriage in Virginia.” Quit throwing out the red herrings about court challenges to the second paragraph.

    The Commonwealth, cities and counties have to do something that approximates ‘marriage’, not contracts, to cross the line.

    Homosexuals can put anyone in their wills, on the visitation list, etc without being married.

    They ought to be honest about their agenda.

  14. CG2 Avatar
    CG2

    Actually, the localities don’t have to “do” anything under the amendment language … all they have to do is “recognize” “a legal status” for “unmarried individuals” that “intends to approximate” any one of the benefits, obligations etc of marriage. … like offer domestic partner health benefits to unmarried individuals.

    The AG said this week that the amendment was “similar” to one in Nebraska. (It’s not, but that’s another point). No matter, the Nebraska amendment has been interpreted by the Nebraska AG to prohibit the legislature from enacting a law to allow long time partners to make decisions on burial rights or organ donations because this would recognize or give legal effect to the partnership. Why then wouldn’t Virginia’s amendment be interpreted the same way? Opinion 03004 http://www.ago.state.ne.us/

    The bottom line here is that there is no reason to amend our constitution to prohibit gay marriage, civil unions and domestic partnerships (any more than we need to put other restrictions on marriage in the constitution) or to constitutionalize discrimination against unmarried individuals.

    Leave the constitution alone.

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