At a regular rate (almost biannually), the voters of Virginia are called upon to consider amending the State Constitution, even though most of us are unable to tell the difference between the Constitution and the Code of Laws. Generally, that’s O.K.: The amendments we’re asked to vote on are usually relatively minor technical alterations, and after one reading of the question and the explanation, the average voter is ready to cast his ballot.
But almost never are we called upon to vote for an amendment that is so deeply flawed philosophically, practically and (many would say) morally as is the proposed amendment banning same-sex marriage and civil unions. And this time, before reflexively voting “yes” to something that might seem harmless to the majority of Virginians, we should consider what belongs in a constitution, and the meaning of those actual words we’re about to commit to it. [For full text, see sidebar feature, Not So Fine Print]
“I’ve spent my life thinking about constitutions,” says A.E. Dick Howard. “I’ve thought about it a lot, I can at least say that.” The day Howard speaks to a reporter, he has just returned from casting his absentee ballot for the November 7 election. He has a lot to say about why he voted “no” on the marriage question.
“[The amendment is] grand sounding, but as you read it, you say, ‘What in the world does it really mean?’ You think you know what they’re talking about, but you’re not sure, in practice, where it goes,” he says. “It responds to a non-problem.”
Not many people know the Virginia Constitution like A.E. Dick Howard does. How could they? After all, Howard, a UVA law professor, was the executive director of the commission that rewrote the modern Constitution in 1971.
“This is a bad amendment,” says Howard, even for the reported majority of Virginians who believe that marriage should be defined as a union between one man and one woman.
This guy isn’t some flaming liberal hell-bent on shoving gay rights down the throats of red-state America. “I don’t represent the gay rights community,” says Howard.
What he does represent is the wizened elder who has a broader view of the State Constitution—what it should do, and what it has no business doing. And the State Constitution has no business in the realm of marriage, he says.
An older, married gentleman, Howard, who is reticent about his personal politics, is a distinguished professor who has written volumes on Virginia’s Constitution as well as the Magna Carta. His resumé is impeccable, characteristic of the legal elite: Born and raised in Richmond, he got his undergraduate degree at the University of Richmond before going on to a Rhodes scholarship and then UVA law school. He clerked for Supreme Court Justice Hugo Black. He has argued cases before the State and federal supreme courts. In addition to heading the committee that rewrote Virginia’s Constitution, he has served as a constitutional consultant to countries on nearly every continent: Brazil, the Philippines, Hun-gary, Czechoslovakia, Poland, Romania, Russia, Albania, Malawi, South Africa. It’s a respectable record for a man of any political inclination.
“The people of Virginia are properly concerned with the status of marriage and I have no objection to their making that judgment through the statute book,” Howard says. “And if a majority of people of Virginia think that it ought to be defined as between a man and a woman, they’re entitled to that.” But there’s a huge difference between a statute book and a constitution, and everyone casting a ballot on this amendment should consider the difference.
What’s a constitution?
A constitution doesn’t spell out the specific laws. Rather, it’s more of a framework for the law. It defines the powers of government, establishing which powers belong to the governor, which to the General Assembly, which to the courts, which to local government. It’s the document that establishes the governor’s power to veto a bill and the legislature’s power to impeach the governor. A constitution, in other words, lays out that system of powers, checks and balances.
With its “Bill of Rights,” the Virginia Constitution also defines the rights of individuals in relation to the government, giving them the right to free speech, the right to bear arms, the right to exercise their religion freely.
But the Bill of Rights does not define the relationships between individuals themselves. The Constitution doesn’t say it’s a crime to assault someone; the Code of Virginia, our body of statute law, does that. And for the record, the Code of Virginia already bans marriage between “persons of the same sex” and prohibits civil unions. Neither the federal nor the State Constitution (at this point) so much as mentions the concept of marriage.
“It’s a mistake to put social policy in the Constitution,” says Howard. “It’s a confusion of the fundamental difference between constitutions and statutes. Including provisions like the marriage amendment in the Constitution mistakes [the Constitution] for a code of laws.
“Each generation has tried to read its social preferences into state constitutions. For example, in Virginia we used to have a ban on dueling. In Virginia, in the 19th century, if you fought a duel you lost the right to vote. Well, what is that doing in the Constitution? In writing the present Constitution, we took that ban out. It’s not that we approved of dueling—that’s the kind of policy judgment which the legislature should make. If they want to ban dueling—fine, put it in the Criminal Code. But it doesn’t belong in the Constitution. I haven’t noticed any sudden outbreak of dueling since it was taken out.”
 “Whether it has to be this way or not, the fact of American history into its third century has been the enlargement of rights against government,” says A.E. Dick Howard, father of Virginia’s modern Constitution. “This amendment is really not in the spirit of that history.” |
A constitution’s bill of rights “keeps government at a distance,” says Howard. “It protects free speech, it protects free exercise of religion, it protects us from illegal searches and seizures, and any number of other rights. It doesn’t regulate conduct among individuals. It forbids government discrimination on the basis of race, but it doesn’t tell private parties how they should treat each other. It doesn’t tell you as a private employer whether you may or may not discriminate on the basis of race in your employment policy—statutory law does that. The Civil Rights Act of 1964 says that public accommodations can’t discriminate on the basis of race. That’s good public policy, but that’s statutory law.
“So there’s a fundamental principle that I think is being disregarded by those who would amend the Constitution and put in the marriage amendment. I would feel that way regardless of what the subject matter was,” Howard says.
How did we get here?
Virginia is not alone in its current obsession with getting a definition of marriage into the Constitution. While last week’s ruling from the New Jersey Supreme Court holding that gay and lesbian unions must be guaranteed all the rights and benefits afforded to traditional marriage cheered gay marriage advocates, 20 other states have already passed constitutional amendments banning gay marriage. Eight other states, including Virginia, have the issue on their ballots this year. Almost all the rest have state statutes that forbid same-sex marriage or civil unions. The exceptions? Only Massachusetts recognizes gay marriage, per se (the New Jersey justices have punted the question of “marriage,” that is, the use of the word itself, back to the state legislature). Seven states, plus the District of Columbia, allow for some sort of civil union.
America wasn’t always obsessed with banning legal unions between gay and lesbian couples. The hullabaloo started in 1993 in Hawaii with a State Supreme Court ruling that directed the state to find a “compelling reason” to forbid same-sex marriage. The Hawaii legislature responded by passing a constitutional amendment banning gay marriage (but Hawaii has also established domestic partnerships).
The tipping point came in 2003, when the Massachusetts Supreme Court ruled that marriage is a right under the State Constitution that couldn’t be denied gay couples. That decision fired up conservatives nationwide to fight “activist judges,” leading to a profusion of proposed amendments banning gay marriage in 2004 that voters overwhelmingly approved.
But, the Massachusetts decision and the recent New Jersey ruling notwithstanding, the threat of “activist judges” may not be as great as advertised. Courts in New York and Washington states have upheld state laws banning same-sex marriage.
That’s not to undercut the debate, which continues to be lively, impassioned, and full of hyperbole, as one would expect from any volatile issue. But that debate is all the more reason to leave the question to the democratic process and not compress the current prevailing sentiment against gay marriage into a document as purposefully rigid as the Constitution.
“Today’s views about marriage and same-sex marriage may not be tomorrow’s views,” says Howard. “This is a Jeffersonian principle, that each generation should decide for itself what public policy should be. ‘The earth belongs to the living generation’ was his language. And this amendment tries to freeze policy of the moment into the Constitution so that the next generation would have its hands tied.
“Curiously, it reflects a distrust that people might change their mind: ‘We better freeze this into the Constitution lest Virginia become too lax in these matters.’ It’s like legislating morality—except this constitutionalizes morality.”
And what of the activist judges, those bogeymen who have become a popular rallying cry for those who want to amend the Constitution?
“In Virginia? Activist judges? Show me Virginia’s activist judges,” Howard exclaims. “The bench of Virginia are simply not people who will go around discovering new undefined constitutional rights. This is not Massachusetts. Talk about a non-problem.
“If there were a problem to be solved, one might take that risk. But since there isn’t a problem to be solved, it seems to be an unnecessary gamble.”
Unintended consequences
Set aside the issue of philosophy—what should and should not be in the Constitution—and this proposed amendment has another problem: the unintended consequences of a vague second paragraph, says Howard.
The wording of the amendment says that the State won’t recognize “another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.” Nowhere, in either the first or second paragraph, does it say anything about gay people, same-sex couples or any other direct reference to the group intended to be excluded. The amendment only speaks of “unmarried individuals.” And many, including Howard, worry that such language might restrict current legal rights of all unmarried couples to own a house together, make life-ending or -prolonging decisions for each other, or access the protections of domestic violence laws.
“That I think is a forceful objection to this amendment,” Howard says. “We don’t even know what doors it opens. And I don’t see why we would want to go down those uncharted roads.”
When you go to the polling place next Tuesday, you’ll get a handout explaining the marriage amendment question. That explanation holds that “there are other legal rights, benefits, and obligations which will continue to be available to unmarried persons” such as joint property ownership, advance medical directives or domestic violence protections. State Attorney General Robert McDonnell in September issued an opinion that these rights will remain for unmarried couples if the amendment passes.
Yet neither the ballot explanation nor the attorney general’s opinion is binding, says Howard. The Constitution trumps State statutory law, of which all those protections are part.
“I’ve read the attorney general’s opinion, that all these things are covered by state law. That begs the fundamental question: Suppose those laws themselves are called into question under this amendment? A judge might decide that this amendment, if approved, overrides any of those laws—we don’t know which ones and we don’t know whether,” says Howard. “But a party to a private lawsuit could easily invoke this amendment to say that [another] amendment is not valid because of the state constitution. So you see the ripples of potential consequence that flows from this amendment. And that can be any judge, it doesn’t have to be the Supreme Court of Virginia, it could be a trial judge. That’s a lot of judges—that’s a lot of lawsuits.”
Lawsuits are stranger than fiction, but a hypothetical case might go like this: I arrange legally for my girlfriend to make life-ending decisions for me. A tragic accident leaves me in a permanent vegetative state, and my girlfriend decides to pull the plug. But my family, unhappy with that decision and wanting to take control, files a suit claiming that the arrangement between my girlfriend and me is unconstitutional because it “approximates” the “benefits” of marriage, to use the language of the proposed amendment.
Howard points out the irony that a fear of “activist judges” sets up the opportunity for more “activist judges.”
“If the concern is judicial activism, here we have an amendment which likely expands the work judges will do. It will give them more occasion to interpret Virginia’s Constitution to see if this particular law or arrangement is valid. So we’ll see more judicial activism, not less.”
Why is this amendment’s language so vague? Part of the answer seems to lie in Colorado: In 1992, that state passed a constitutional amendment essentially forbidding local governments from passing laws that protect gay rights—a response to cities like Denver and Aspen that had passed such laws. Yet in Romer v. Evans, the U.S. Supreme Court voted 6-3 to strike down the state constitutional amendment because it violated the equal protection clause of the 14th Amendment to the U.S. Constitution. The Colorado amendment showed “animus” toward homosexuals, wrote the majority. Most amendments, including the one proposed for Virginia, are now trying to get around accusations of “animus” by avoiding any mention of same-sex couples—hence the references instead to “unmarried individuals.”
One doesn’t have to speculate that legal troubles might arise from such wordings. Ohio, which passed language similar to that of Virginia’s proposed amendment, has since faced trouble with domestic violence protections, according to Nancy Neylon, executive director of the Ohio Domestic Violence Network. Appellate courts in two of 12 Ohio districts have ruled that their marriage amendment prevents the unmarried from seeking domestic violence protections. The Ohio Supreme Court will rule on this matter in the spring. Whether this amendment limits legal rights for unmarried straight couples is now in the hands of judges.
Could it be reversed?
If a simple majority of voters choose “yes” on the ballot, then this amendment, vague language and all, becomes part of the Virginia State Constitution. Once that happens, how can we step back? How could we reverse such an action?
There are two conceivable routes. A judge could rule that, like the Colorado amendment, Virginia’s shows animus toward homosexuals, and therefore violates the U.S. Constitution, which would nullify it. Alternately, the people could once again amend the Constitution to expunge the amendment—a process “deliberately cumbersome and difficult,” says Howard, which “should not be undertaken lightly.”
Howard imagines that legislators that would be willing to repeal the amendment would also feel political pressure not to appear “pro-gay.” It’s possible that this amendment will stay on the books for generations, limiting the discussion and debate on the issue of marriage until someone like A.E. Dick Howard comes along and rewrites it.
“Constitutions represent aspirations,” says Howard. “This is the way people speak to the Commonwealth. This amendment is not in the spirit of the Bill of Rights.
“It doesn’t seem to reflect a healthy picture of what Virginia ought to be.”