Virginia Faces Draconian Proposal

Amendment could void all gay partnership agreements, even private contracts

With final approval last week from the Virginia Senate, it is now all but assured that an anti-gay marriage amendment to the commonwealth’s Constitution will go before the state’s voters in November.

If passed by voters, the amendment would be added to Virginia’s Bill of Rights and ban all forms of legal recognition for same-sex couples, including civil unions and domestic partnerships. Gay advocates in Virginia, as well as the Democratic governor, Tim Kaine, have concluded that language in the measure would void basic contractual agreements made by gay couples as well as heterosexual couples who choose not to marry.

However, before the statewide referendum, Kaine must sign legislation accompanying the amendment itself that instructs how it will be described on the ballot.

As that legislation currently stands, the House’s version calls for a ballot question in which the proposed amendment is explained as defining marriage in Virginia as between a man and a woman and adding “provisions relating to the legal status of other relationships.” The version approved by the Senate is nearly identical, except that it also says that the amendment would require that Virginia not recognize “a legal status for relationships that intend to approximate marriage.”

Virginia’s major political gay groups contend that neither version of the ballot language accurately and comprehensively frames the extent of the proposed amendment’s reach.

“It is almost absurd how poorly written these ballot questions are,” said Dyana Mason, executive director of Equality Virginia.

She said her fear is that without proper explanation, voters will approve an amendment that they believe bans same-sex marriage without realizing it also prevents civil unions, domestic partnerships, and any other legal agreements between two people that might be considered an attempt to gain benefits normally available through marriage. Such agreements might include power of attorney, inheritance, hospital visitation, and child custody agreements.

Language that would have ensured the amendment not extend to rights outside marriage was defeated by the Legislature.

Virginia law requires that a constitutional amendment pass with a super-majority during two consecutive sessions of the Legislature as well as by a majority in a voter referendum. Passed once last year, the Virginia House and Senate fast-tracked the marriage amendment this session to ensure it would go to the voters in November. It was the first order of business heard in the House’s Privileges and Elections Committee, brought up by the chairman only minutes after the committee members for the current session were named. The amendment passed a full House vote on January 16, Martin Luther King Day. A week later, the Senate’s version rocketed out of committee and sailed through an overwhelmingly favorable floor vote.

The 230-year-old Virginia Bill of Rights was written by founding father George Mason, and served as a model for the first 10 amendments to the U.S. Constitution.

Equality Virginia has called on Governor Kaine to make sure the amendment’s accompanying language—which is what actually appears on the ballot—reflects its full reach. That language is not part of the amendment per se, but rather embodied in a separate law, and therefore subject to the governor’s veto or change.

Altering the ballot language would be an unusual step for a Virginia governor. There have been several amendments to the current Constitution, ratified in 1970, but never has a governor interfered in the ballot language for an amendment that has crossed the two-thirds threshold in the House and Senate. For this reason, the governor’s signature on the measure that sends the amendment to the voters is viewed as largely procedural. It is unknown if any action by Kaine to interfere might be considered illegal.

“It is our position that he has the authority and right to amend the accompanying legislation,” Mason said.

Kent Willis, executive director of American Civil Liberties Union Virginia, agreed.

“Governor Kaine would certainly be within his legal authority,” he said.

But Willis also noted that the amendment and supporting statutes were passed with a veto-proof majority, and so the governor might not succeed in an attempt to alter the ballot question language.

The state branch of the National Stonewall Democrats, the Virginia Partisans, is also urging Kaine to ensure voters know what their approval means.

“If the House and Senate doesn’t reflect was the amendment would do, we ask he use his power to amend it,” said Josh Israel, president of the group.

Israel added that demanding that Kaine take certain action was premature, as the final version of the amendment, yet to be hashed out in a House-Senate conference committee, was not yet before him.

For his part, Kaine—endorsed by Equality Virginia and the Virginia Partisans in last year’s election—has expressed reservations about the amendment’s unintended consequences. Although Kaine believes marriage should be limited to heterosexual couples, his spokesman, Kevin Hall, said the governor believes the amendment “overreaches… potentially voiding all sorts of contractual relationships.”

“The governor would probably seek to amend the ballot language if he felt it did not make the law clear,” Hall added, putting special emphasis on the word “amend,” and adding that how and what the governor might do once the final bill reaches him is still “under active consideration.”

Kaine, who assumed office in January, gained national attention this week as the Democratic choice to deliver the response to President George W. Bush’s State of the Union speech.

When Kaine was elected in November, beating Virginia’s Attorney General Jerry Kilgore, he was held up as an example of a Democrat who can appeal to conservative voters and win in places like the South. He defeated Kilgore, despite last-minute stumping by Bush.

Though Kaine opposes same-sex marriage, Eric Stern, executive director of the National Stonewall Democrats, said the new governor demonstrated that conservative politicians can be inclusive and still appeal to voters in locales where Republicans traditionally dominate.

“He has an open-door policy for Virginia’s LGBT groups, something we would never have gotten with a Republican,” Stern said.

“On his very first day in office, Governor Kaine signed Executive Order One,” Stern added, pointing to the mandate prohibiting job discrimination against state employees based on sexual orientation.

In neighboring Maryland, a similar marriage amendment, one that would also ban all marriage-like contractual arrangements between unmarried couples, is pending before the House Judiciary committee.

Dan Furmansky, executive director of Equality Maryland, said the amendment will probably receive a committee vote this week, though he expected its defeat. Two weeks ago, a judge in Baltimore ruled that the state law banning same-sex marriage did not survive a constitutional challenge, though the decision has been stayed pending appeal.

A Republican effort to bypass the committee process and bring the amendment for a full vote has not met with success. Legislators can bypass committee approval for a bill if they have sufficient votes, but the minority Republicans are too few in number to do so without some Democratic support.

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