Bacon's Rebellion

Virginia’s Marriage Amendment — Not Just a Culture-Wars Issue

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James A. Bacon
in

Bacon’s Rebellion

columnist Doug Koelemay is quoted in the Connection Newspapers as opposing the proposed constitutional amendment to ban same-sex marriage. As he rightfully argues, the proposed amendment is not just a culture-wars issue, it’s a business issue.

Our history in Virginia has been about opening doors, not slamming doors shut,” said J. Douglas Koelemay, managing director of Qorvis Communications, a Tysons Corner public affairs firm. “If this amendment passes, Virginia will be a place where doors are slammed shut. That’s not good for business and that’s not good for anybody else either.”

This amendment would do more than prohibit same-sex marriage. I do believe that civil marriage should be limited to a man and a woman. But the amendment also, as the Connection article points out, would call into question an employer’s right to extend benefits to the domestic partners of gay and lesbian employees. The second paragraph of the amendment bans the recognition of any “legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage.”

In a hyper-competitive global economy, regions compete primarily on their ability to develop, recruit and retain human capital. Any measure that makes Virginia inhospitable to the gay population, five percent or so of the population, creates an unnecessary competitive disadvantage for Virginia businesses.

I recognize that competitive economic advantage must be balanced against other considerations such as upholding the institution of marriage. I’m open to both sides of the argument, indeed I flip-flop worse than John Kerry, but my gut tells me that Virginia’s amendment, as currently worded, goes too far.

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19 responses to “Virginia’s Marriage Amendment — Not Just a Culture-Wars Issue”

  1. Anonymous Avatar
    Anonymous

    I am a solid “no” vote on the amendment, which I view on the same level as the recent “right to hunt and fish” addition to the Virginia Constitution. It’s just politicians attacking a straw man to distract the rubes.

    But I don’t think the second sentence can abrogate private contract rights or can prevent an employer from offering benefits to unmarried partners. It would prevent the state or a locality from mandating them, and probably prevents the state and local governments from offering them to their own employees.

    It won’t be long before this brings CG2 into the debate, who will point out correctly that the law means what a judge says it means, and that is one danger with the wording. But there are better reasons to vote no, the most important of which is why do we care at all? It’s none of my business what Joe and Bill or Jill and Janet do if it causes me no harm. And them standing before some willing preacher and signing a marriage license causes me no harm.

  2. Anonymous Avatar
    Anonymous

    In fact, if there were recognized same sex marriage, most employers who now offer benefits would rush to require “benefit of clergy” before you got “benefit of health care.” It might be good for business. Did Doug K. make that argument for a no vote?

  3. NoVA Scout Avatar
    NoVA Scout

    The amendment will probably pass by a substantial majority. It really is, however, a sad piece of rustic demagoguery. The pols figure it can do them no harm, and might have the added benefit of driving up turn-out in November (if you’re on the side that higher turn-out benefits). It’s totally useless for the purposes it’s advertised to support (“defending” marriage) and it is an affront to the Constitution and conservative notions of why we have constitutions(next thing you know they’ll be sticking a ban on red-light cameras in there, although, constitutionally, a universal ban on a form of governmental surveillance makes a lot more sense in the constitution than does a prohibition on certain arrangements between all but conventionally married heterosexuals). Mr. Koelmay could not be more correct that it’s a particularly black mark on
    Virginia’s aspirations to be a leader in new business development. It’s mean-spirited, unnecessary, badly drafted (unless you’re really trying to do much more than advertised) constitutionally imprudent, bad for business, political manipulation by a leadership class that has shown no particular gifts for dealing with the real problems of Virginia, and ineffective to advance its stated purpose. Other than that, it’s a great idea and will meet with overwhelming voter approval. Too bad for Virginia.

  4. CG2 Avatar
    CG2

    Oh, I hate to be so predictable, Anon 8:09am, but here goes:

    Trust your gut, Jim. It reflects your common sense reading of the convoluted language of this ill-conceived proposal.

    Folks who care about the pro-business environment in Virginia should greet this litigation provoking mess with a resounding NO.

    Remember the “day-of-rest snafu”?

    When the General Assembly screwed up Virginia’s fair labor standards law, the Governor called them into session over the summer and the problem got fixed.

    The screw up that is this amendment can’t be corrected by the legislature if this passes and the inevitable adverse impact of the far-reaching consequences of this proposal becomes clear to some only after the fact.

    Businesses perform best when they are operating in a stable, low litigation environment (hence all that emphasis on tort reform, etc).

    They also perform best where they are free to seek and hire the absolute best talent they can find without artificial restrictions imposed by social engineering legislation like this amendment.

    And, they do best in a vibrant, inclusive and creative environment. Check out this article by Richard Florida in Washington Monthly, “The Rise of the Creative Class: Why Cities Without Gays and Rock Bands are Losing the Economic Development Race.”

    Virginia businesses should speak out loudly and often against passage of this proposal, because as Doug Koelemay and others have pointed out, it’s just “bad for business.”

    Note: Read my profile linked to this blog for info on my interests and employment that inform my views on this and other issues. For more info on the amendment see http://www.voteNOva.org; for more discussion of the issues go to Blogging the Amendment.

  5. Anonymous Avatar
    Anonymous

    Doug Koelemay is clearly one of the better PR guys in NoVA. He’s smart and he does good work. However, he’s is also tied to Tim Kaine, who is hands-down the most dishonest politician in Virginia history. Kaine ran for office opposing increasing transportation taxes without a constitutional lock box, preventing additional development where the roads are inadequate, and against gay marriage.

    But once in office, he ran away from each of these positions. Good, honest and decent people are on opposite sides of these issues, but they did not run for office saying one thing and then doing the other after they were in office. The bottom line is that Tim Kaine is not honest on this or other important issues.

    Is Koelemay’s pieces a slick PR attempt to gather cover for Kaine? I’m not arguing that people are necessarily wrong for opposing the marriage amendment. Rather, I’m asking whether this is another Slick Timmy stunt. Did Koelemay have any contacts with the Governor’s office or his associates? Is this PR to help buy Kaine cover on another issues where he promised one thing, but then switched positions?

  6. Anonymous Avatar
    Anonymous

    Its never been about love, its always been about the money

  7. Vivian J. Paige Avatar
    Vivian J. Paige

    Just listen to your gut, Jim, and Vote NO.

  8. Anonymous Avatar
    Anonymous

    When one goes to a party, one should not talk politics or religion. That applies to business people as well.

    Individuals’ beliefs on gay marriage and amendments to bar it are based on deep personal beliefs and convictions. There are sincere people on both sides of this issue. There are good moral arguments on both sides of the issue as well.

    When a business picks a side on an issue that goes to personal moral convictions, it axiomatically is sticking its finger in the eyes of a lot of people who sincerely feel differently. Why do that? A business or group of businesses that do that are inviting boycotts. (Recall the gay boycotts of Colorado and active church members’ boycotts of certain advertisers.) How does that help business?

    Business people who feel strongly one way or another should join the appropriate coalition as an individual or just vote their conscience in November.

    This looks similar to the blog from earlier in the week where the writer damned those who demonize their political opponents and then went off demonizing those opposed to her views on gay marriage and illegal immigration.

  9. CG2 Avatar
    CG2

    Anon 3:48:

    Businesses should speak up for the free market and their own best interests anytime government regulation unnecessarily threatens the free trade of products or services or the movement of human capital from business location to business location, across state lines or international borders.

    Moral regulation, unnecessary to assure order and preserve the safety of the citizenry, does not belong in our constitution but is the proper province of our churches and our homes.

    This proposed constitutional amendment is a direct threat to the vitality of Virginia’s economy. It’s time for business leaders to remember why they revere limited government, and speak out against this ill-conceived and far-reaching proposal.

    As to your criticism of my earlier post on civility, I’m still trying to find the part where I demonize anyone on either side of the debate simply because I asked folks to temper their rhetoric. To paraphrase Shakespeare, methinks the gentleman doth protest too much.

    P.S. If you’re getting paid to blog this issue or are working for or with one of the groups actively advocating its passage, I hope that you’ll tell your readers so that they can judge your comment appropriately.

    Note: As always, don’t forget to read my profile on this blog (under CG2 at the top of the right hand column) if you want to know who I work for and where I come from.

  10. NoVA Scout Avatar
    NoVA Scout

    Anon 1202 doesn’t think highly of either Mr. Kaine or Mr. Koelemay, But he doesn’t indicate whether he/she agrees or disagrees with Mr. Koelemay’s points.

    Re Kaine’s honesty on this issue, it seems perfectly possible to disfavor gay marriage, but also be against the proposed amendment. A lot of us don’t understand the necessity. I belong to a Christian denomination that does not recognize or perform gay marriages. End of story. We’ve had a lot of good conventional heterosexual marriages start in our church. We’ve launched a few disastrous ones also. None of our married congregants (to the best of my knowledge) has a marriage the quality of which is in any way influenced (or protected) by what some pols do in Richmond.

  11. Anonymous Avatar
    Anonymous

    For years before we married, my husband and I had drawn up our wills, living wills, and durable power of attorney documents naming each other as the person to whom we delegated decision-making authority etc. After we married, we had them modified to reflect husband/wife. That was just about all that changed other than a few notes about sums of money left to organizations etc which we chose to change.

    Would our initial documents have been legal under this new “law”? If one of us were to die, could the other draw up similar documents naming a friend as the decision maker? If I were the one left, I have several friends whom I’d prefer to name over any family member, not because my family is evil but my friends are closer to me than family.

    People are living longer, families are spread all over the country, lots of folks are not married all of their lives. Forget gay marriage – this “law” is unworkable! What it “means” could depend on what judge you got.

  12. James Atticus Bowden Avatar
    James Atticus Bowden

    Red Herring alert. Business in Virginia will be just fine the day after the Amendment passes. Business will continue to grow.

    The 20 states that have passed these amendments have not had contracts, benefits etc. changed because of the law. The same red herrings were called out in those elections too.

    If an employer wants to give benefits to homosexual partners, live in girl/boy friends, steady dates or anyone else they want – they can do it. You just don’t call it marriage, because it isn’t.

    Two greater issues come out of these blog comments.

    If anyone would compromise principles, the foundation institution of civilization, for ‘business’, their values are Mammon alone and, yet, they are all the poorer.

    If the Amendment ends up being what a judge says it is, then it’s past time to start impeaching judges.

  13. CG2 Avatar
    CG2

    JAB:
    In Ohio, arguments about the impact on domestic violence laws labeled by proponents as “absurd” have now become these same folks’ arguments in the Ohio Supreme Court. The amicus brief filed by former amendment proponents argues that the plain language of the amendment prohibits the application of the laws to unmarried individuals.

    Moreover, the language of the Virginia amendment reaches far beyond the language of any of the amendments passed in any other state (including Ohio, and, therefore, the arguments opponents are making here are unique to the uniquely broad and over-reaching language of the Virginia proposal.

    Constitutional language that includes undefined language like “significance,” “qualities,” or “effects” of marriage, “recognize” or “intends to approximate” must be interpreted by …um… judges.

    We aren’t a legislative history state, so judges must look to plain meaning (i.e., the dictionary) to devine the meaning. See the Republican Michigan Attorney General’s opinion for an example of how “recognize” might be interpreted using its plain meeting or the Republican Nebraska AG’s interpretation of what even that state’s narrower language prohibits (unconstitutional after “marriage amendment” to give a domestic partner the same rights as a surviving spouse to control and direct the disposition of the decedent’s remains; a right that is given priority to the rights of the decedent’s children, parents, or siblings). Opinion 03004 at
    http://www.ago.state.ne.us/

    Yelling “red herring” in a serious and reasoned debate about the scope and potential impact of this amendment does not address the real and legitimate concerns expressed by those who apply common sense to a reading of the convoluted language of the proposal.

    The fact is … there is no compelling argument to support the need for a constitutional amendment. There simply is no “fire” here.

    Anyone who takes our constitution seriously as the first in the world to include a bill of rights that secures the rights of individuals against the government should hestitate to amend it based on the flimsy case being made by proponents for this significant and substantial change.

    CG2
    Note:
    As always, check out my profile on this blog for a full description of my interests and paid employment related to this and other issues.

  14. David Avatar
    David

    JAB-

    I’m afraid I have to disagree. If the measure is so broadly and ambiguously worded that different judges come to completely different conclusions regarding the intent of the legislature (which is what we are seeing in other states), then it is past time to start electing better legislators.

  15. James Atticus Bowden Avatar
    James Atticus Bowden

    From the Virginians for the Amendment site: Same-sex marriage advocates point to cases in Ohio where trial courts used that state’s amendment to invalidate domestic violence laws. They fail to mention that appellate courts have already reversed several of those decisions. But frankly, what happens in Ohio is irrelevant to Virginia.

    Virginia is in better legal shape than Ohio. Ohio’s law refers to “spouses”, but Virginia’s domestic violence laws are not based on marriage, but instead are based on “households.” Virginia law clearly defines the “class of victims” of domestic violence as any “household member” who “cohabitates” or “resides” with another person. It has no reference to marriage or, in fact, any relationship at all between the two people who reside together (Code section 18.2-57.2). Basically, our domestic violence law applies regardless of the relationship.

    Here is the amendment:Section 15-A. Marriage.
    That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

    It says the cities, counties and Commonwealth can’t make up faux marriage. That isn’t hard to figure out or a real surprise when those governments do so. A judge won’t have to interpret much. Name a law or regulation that would approximate the design, qualities, significance, or effects of marriag and be so, so terribly confusing.

    Now list the rights, benefits, obligations, qualities, or effects of marriage that would be so, so confusing for a judge to have to interpret. There’s 400 years of marriage law and precedents (actually since 1619) to draw from.

    Not confusing unless its politically expedient to yell “Oh my this amendment goes too far! If it only banned homosexual marriage, we’d be just fine with in (LOL. Not!).”

  16. David Avatar
    David

    Not confusing unless its politically expedient to yell “Oh my this amendment goes too far! If it only banned homosexual marriage, we’d be just fine with i[t]”

    Well, that is in fact true of many conservatives who oppose the amendment, including apparently Jim Bacon, so I’m not sure what point you are trying to make.

    As for the domestic violence statute, I’m surprised that you are buying into that “the Ohio and Virginia domestic violence laws are so different” nonsense.

    The only difference is semantic. The legal definition in Virginia of “cohabitates” has been determined to be “lives together as husband and wife,” in other words, something that looks an awful lot like “approximating” marriage.

    Can you provide a definitive list of the rights, benefits, obligations, qualities, or effects of marriage? With 400 years of marriage law and precedents to draw from, that shouldn’t be a problem, right?

    And yet, no one I have asked this question has been able to do it.

  17. CG2 Avatar
    CG2

    JAB:
    Unfortunately, the folks who wrote the FAQ response for Amendment proponents liberally excerpted in your post either haven’t read or want to ignore an “official opinion” of the Virginia Attorney General that eviscerates their argument about Ohio and Virginia law being different in some legally significant and, supposedly, reassuring way.

    David is right. The Ohio domestic violence law and Virginia’s domestic violence laws are nearly identical in language and effect.

    The one difference is that some of the Ohio trial and intermediate appellate courts that decided not to find their law unconstitutional based their decisions in large part on the fact that the Ohio law had been interpreted by the courts for years before their amendment passed to apply to all unmarried relationships (gay or straight). The argument was that voters had somehow endorsed this preexisting caselaw when they voted for the amendment.

    This is in stark contrast to Virginia where our domestic violence law, which when amended to include “family and household members” was originally thought to apply to all unmarried couples living together, was interpreted in an official opinion issued in 1994 by former Attorney General Gilmore (entitled to deference by the courts) as not applying to gay couples because it applies only to heterosexual couples who could fit within the statutory definition of “cohabiting” which he said meant living as “man and wife.” This opinion has never been questionned by the legislature in the 12 years since it was written nor has it been overturned in the courts. Moreover, there is at least one VA Supreme Court case endorsing a similar interpretation of the meaning of “cohabit.”

    If one accepts Gilmore’s opinion, then, it’s clear that, if applied to any unmarried couples after the amendment passes, the Virginia domestic violence statute would be giving unmarried couples a “legal status” approximating a benefit, obligation, effect or significance of marriage.

    And, while opponents of the amendment have, in fact, acknowledged many times that the courts in Ohio have split, requiring a final decision by the Ohio Supreme Court to resolve almost 3 years of legal insecurity for unmarried domestic violence victims, you haven’t said why you think we should have any confidence that the folks yelling “red herring” here won’t repeat the flip flop seen in Ohio and show up on the other side of the legal arguments if this ill-considered piece of legislative social engineering passes. See, e.g., post and comments here.

    Note: usual note, read my profile linked at top of right hand column for info on who I am and where I’m coming from on this and other issues.

  18. Anonymous Avatar
    Anonymous

    I am a heterosexual, married, Catholic father of five.

    This amendment must be defeated.

    The gay people I know are gay right to the marrow of their bones.

    God made them that way.

    The state has no business restricting these people’s right to marry.

    In 50 years this anti-gay movement will be viewed the same way as the Jim Crowe laws are viewed today – wrong minded and unprincipled.

  19. Anonymous Avatar
    Anonymous

    I strongly agree that this proposed ammendment should be defeated. What I don’t understand is the use of the word “protect” in all the spin associated with anti-gay marriage laws. How does gay marriage hurt marriage in general? It seems to me that divorce is a far bigger threat to the insitution of marriage than homosexuals. Why isn’t there an ammendment banning divorce? Simply put, the right wing is chock full of ignorant extremist hypocrites.

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