Virginia Bill of Rights to deny legal status to same-sex and unmarried relationships

A ballot referendum to amend the Virginia Bill of Rights that denies to same-sex and unmarried couples any legal status that approximates that granted to married couples was approved by state voters during the U.S. midterm election by a 57% to 43% margin.

The Virginia result, along with voters from seven other U.S. states who decided on similar constitutional amendments, brings the total to 27 states that now constitutionally ban the recognition of same-sex unions at the state level. Arizona voters failed to pass a similar ballot initiative this election cycle, making it the first and only U.S. state to reject a constitutional ban.

Both the governor of Virginia, Tim Kaine, and Senator-elect, Jim Webb, publically opposed the amendment before the vote. Governor Kaine said the broad language against the recognition of the "legal status for relationships of unmarried individuals” within the referendum might have negative consequences on the state's business climate. Further, that "it would invite protracted court challenges in areas including contracts, custody cases and end-of-life decisions."

The Attorney General of Virginia, Robert F. McDonell argued that the rights of unmarried individuals are still protected, because such legal protections flow from common law, not solely from marriage.

However, the Bill of Rights is the | basis and foundation of government. Thus, as discussed by |Judge Raymond A. Warren, any portion of common law that is determined by the seven-member Virginia Supreme Court to be in conflict with the amendment would no longer provide any such protection within Virginia.

The amendment establishes a section that explicitly prevents the government from recognizing the legal status of any relationships outside of heterosexual marriage. Though paragraph one of the amendment specifically bans same-sex marriage, paragraph two prevents the government from recognizing the legal status of any relationship of unmarried individuals that would in anyway approximate marriage.

Transfer of power and business concerns
Judge Warren argues that one of the greatest dangers of this amendment is that “no body knows what the sentence means”. The Judge’s position is reinforced by the views of an eminent Professor of Law within Virginia, who is a recognized expert on the social issues surrounding marriage. The professor described the amendment as “murky”.

Judge Warren argues that this modification affectively transfers broad power to the 7-member Supreme Court to interpret how this amendment affects the existing laws, benefits and rights that unwed partners currently enjoy. This would be in contrast to instead creating public policies, which could be adjusted through democratic processes as social understandings of the underlying issues evolve.

The Judge’s argument, which is consistent with Tim Kaine’s and Senator-elect Jim Webb’s position, is that there will be significant costs to the society and many years of uncertainty, as these issues are worked-out in the courts.

For instance, the domestic partner benefits that are offered by many companies operating in Virginia are a concern. Since corporate policies must be consistent with Virginia law, these domestic partner benefits are at risk. This uncertainty may then discourage both the talent and the employers who need to attract that talent from doing business in the state.

Making “murky” modifications to the very foundation of government, which in-turn underlies the most complex social system in history, argues for prudence and pause.

Potential for unintended impacts on current law
All of Virginia’s current laws were formed on the foundation that they needed to secure the rights identified in the Bill of Rights. However, that foundation has now fundamentally changed. The state is now forbidden from recognizing a broad set of previously recognized rights associated with unwed relationships. So many existing laws may now be unconstitutional, or will no longer safeguard same-sex or unwed couples and their families.

For example, in 2004 Ohio passed a similar amendment with practically identical language. They also had a 27-year-old domestic-violence law that was applied to all domestic partners. But on May 30, 2006, Ohio’s Third Appellant Court ruled that that law was now unconstitutional due to Ohio’s 2004 “Defense of Marriage” amendment. Though Ohio’s Supreme Court must still hear this case, it does demonstrate how the amendment threatens the stability of existing laws concerning unwed relationships. An excerpt from the ruling follows:

Stabilizing the marriage tradition
The institution of marriage, as a union between one man and one woman has been a dominant tradition within our society for at least 2 thousand years. The existence of a fundamental tradition that is rooted with the procreation of the human species argues for a conservative and measured approach when faced with absorbing the changes demanded by an evolving society. (Buckley and Ribstein)

Since the recognition of same-sex marriage represents a significant departure from these traditions, Virginia law has prohibited same sex marriage for over 30 years. Judge Warren argues that it would have been unlikely that Virginia's rather conservative judges would have changed the definition of marriage, even without the amendment.

However, supporters of the amendment are also concerned that the recognition of new standard form relationships, such as same-sex unions could have unintended consequences.

For example, a writer of The Weekly Standard, Stanley Kurtz, a fellow at the Hudson Institute, blames same-sex marriage in the Netherlands for an increase in parental cohabitation contracts. He asserts that same-sex marriage has detached procreation from marriage in the Dutch mind and would likely do the same in the United States.

However, in the 1999 case of Baker v. State, the Vermont court rejected as illogical and lacking empirical support, the argument that giving the same benefits to same sex and heterosexual couples would have unpredictable effects on the institution of marriage(Buckley and Ribstein). However, it stopped short of requiring the recognition of same sex marriage. The court noted that arguments about destabilization of the institution of marriage are “not altogether irrelevant. A sudden change in the marriage laws or the statutory benefits traditionally incidental to marriage may have disruptive and unforeseen consequences.”

Security of Individual Rights
The 1776 |Virginia Bill of Rights was the first document in the Americas to declare protection of Individual Rights to all people, to define these rights as forming the foundation of the government and to recognize Individual Rights as being superior to all other Laws instituted by the government.

Rights differ fundamentally from other instituted laws. Individual Rights are an inherent power or liberty, not awarded by human power, to which one is justly entitled and which cannot be legally deprived or restricted by government. Laws, on the other hand, are the obligations and restrictions instituted by governments that are needed to secure those rights. Since rights are considered superior to laws, the judicial branch should necessarily strike down the passage of any law that violates any of these rights.

The state Supreme Courts of Massachusetts in 2003 and of New Jersey last month, have ruled that anti-same-sex marriage laws were unconstitutional because they found that the state had to give the same rights to gay couples as they did to heterosexual couples.

To avoid this outcome, proponents of preserving only heterosexual marriage as an acceptable partnership, have chosen to amend marriage laws, which carried the risk of being found unconstitutional, into the Bill of Rights.

The following sections of the Virginia Bill of Rights may be in conflict with the “Marriage” amendment:

The Bill of Rights is also a vehicle whereby Virginia decided what is a right.