GAY MARRIAGE AMENDMENT - As Vote Nears, Opponents Attack Ban's Wording
By Chris L. Jenkins
Copyright by The Washington Post
Monday, July 31, 2006; Page B02
Opponents of a constitutional amendment that would ban same-sex marriage in Virginia have been fighting the proposal with emotional pleas: "Don't write discrimination into the state Bill of Rights," goes one rallying cry. "We are your friends and your neighbors," says another.
But as voters get closer to deciding whether to approve the amendment, opponents are using a more cerebral argument as well. The wording of the amendment is so vague that it might affect a broad range of Virginians by potentially voiding contracts between unwed heterosexual couples as well, they say.
"This amendment would affect unmarried couples whether they are gay or straight," said Dyana Mason, executive director of Equality Virginia, the state's largest gay rights organization. "One of our biggest fears is that these documents [such as contracts or wills] could be found unconstitutional if a third party tries to come in and stop their enforcement. Those same concerns apply to heterosexual couples who haven't gotten married."
Because the amendment reads in part that the Virginia Constitution should not recognize "a legal status for relationships of unmarried individuals," opponents have consistently raised the specter that the amendment could interfere with any unmarried couple trying to make a health-care decision or pass along property ownership.
They said the measure as written also could threaten protective orders and additional safeguards for unmarried victims of domestic violence by barring legal recognition of unmarried household members.
Since the beginning of the campaign, however, supporters of the amendment have said that the accusations are merely distractions from the essence of what the amendment hopes to do: ensure that Virginia does not have to recognize civil unions made in other states and codify a traditional definition of marriage.
"This has been the primary tactic used in other states as well," said Chris Freund, spokesman for the Family Foundation, a group that advocated for placing the amendment on the Nov. 7 ballot. Twenty states have passed similar constitutional amendments. "But it simply isn't true. It's just a scare tactic."
The real and perceived consequences of the proposed amendment are becoming a contentious aspect of the emotional fight over the ballot question. Although it is largely an untested legal argument, opponents have seized upon the wording as a way to try to convince those who ordinarily might oppose same-sex marriage that the amendment would have a broad impact on those who are not gay. Opponents have been buoyed by Gov. Timothy M. Kaine (D), who has said he will vote against the amendment because he also believes it would affect unwed heterosexual couples.
The continued wrangling comes as supporters and opponents continue to expand their organizations and increase their outreach. Supporters will be at county fairs in August and have been attending dozens of church picnics and other events this summer. Opponents say they have visited thousands of homes across the state.
Opponents' message has centered on the legal benefits now enjoyed by unmarried heterosexual couples and trying to cast doubt on whether they would exist under the amendment. These include a law that went into effect last year that allows companies to offer health benefits to a range of loved ones.
Opponents say that the amendment would take Virginia law -- which already bans same-sex marriage and same-sex civil unions -- one step further by applying the same ban to opposite-sex couples.
"We're in for a long line of litigation for a long period of time that will tie up families who are trying to sort out what the consequences of what this amendment are about," said Claire Guthrie Gastanaga, campaign manager of the Commonwealth Coalition.
Supporters of the amendment say it would not have any impact on current Virginia practice.
"The ability to enter into a contract about anything isn't exclusive to marriage," said David Johnson, a deputy for Virginia Attorney General Robert F. McDonnell (R), a supporter of the amendment. "The overall, overarching principle here is that this amendment is very clear in defining marriage and to prevent any rhetorical sleights of hand that create marriage by another name. A contract to buy a house or to sell property . . . or write a will, [is] not exclusive to marriage."
Some legal scholars said that the wording of the document is broad enough that it could expose the state to court challenges.
"There are plenty of open questions given the breadth of the language," said Carl Tobias, a professor of constitutional law at the University of Richmond. "In terms of the wills and health care, various contracts that people engage in . . . much of that could be unclear and subject to litigation. . . . That's not a healthy development."