Marriage Amendment Still Has Ten-Point Margin

As the calendar peels away before the election, Virginians still support a constitutional ban on same-sex marriages by a wide margin. The latest poll, by Mason-Dixon Polling & Research, shows Virginians favoring the amendment 52 percent to 42 percent. That represents a shift of four percentage points against the amendment since late July, but amendment foes don’t appear to have enough momentum to change the final result materially.

I guess I’ll be on the losing side again. My inclination is to oppose the amendment. Here’s why: A constitutional amendment offers no flexibility. If you don’t like the way things turn out, there’s no easy way to fix it. You can’t go, “Oh, we didn’t think of that, we’ll just patch it up with a piece of legislation next year.” The process of amending the state constitution is simply too cumbersome, and rightfully so, to permit fine tuning.

I’m not a constitutional scholar, so I cannot make an intelligent judgment on what the amendment means for the legal rights of gays. Some experts say one thing, some say another. The only thing we know with any certainty is that people will file lawsuits, that judges will rule on them, that the rulings will be appealed, and that the state Supreme Court has the final say-so. If we don’t like the rulings, that’s too bad. We’re stuck.

Like many who support the amendment, I feel that traditional values, many of which I share, are under siege in our society today. But you protect those values by winning in the marketplace of ideas and winning in the electoral process, not by trying to enshrine them in the state constitution,. I’m still open to new arguments, but if the election were today, there’s an 80 percent chance I would vote no.

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54 responses to “Marriage Amendment Still Has Ten-Point Margin”

  1. Anonymous Avatar

    Jim, we are winning in the “marketplace of ideas,” as is shown by the fact that 20 states have overwhelmingly passed this type of amendment. And polls still show that over two-thirds of Americans support traditional marriage.

    Unfortunately, we’ve seen too many cases where courts ignore that fact and impose their will on the rest of us. I support the amendment. I wish we didn’t have to do this, but we’ve been left with no choice. I simply can’t take the word of opponents that “there are no activist judges in Virginia” or “this can’t happen here.”

    Marriage is simply too important.

    I know I probably can’t change your mind, but I think supporting this is very reasonable in light of what we have seen in the courts.

  2. James Atticus Bowden Avatar
    James Atticus Bowden

    Jim: I respect your opinion. I agree that the Constitution shouldn’t be a legal salad bar.

    This amendment goes to the quote I put in the front of my book (final stages of publishing) by George Orwell, appropriately, that “We have now sunk to a depth at which the restatement of the obvious is the first duty of intelligent men.”

    Frankly, I think that need to state the obvious is pathetic. The absence of commonsense is appalling.

    For instance, is it true as reported in the MSM that the local woman hereabouts who shot herself in the stomach to kill her unborn baby was let off by a judge who read the word ‘anyone’ in the code didn’t mean ‘the mother’ because it didn’t specify the mother as anyone?

    To that point of specificity, if we look at the super scary second paragraph of the Amendment, let’s name something a city, county or the Commonwealth could create that approximates marriage.

    Name that tune. What could the cities, counties or Commonwealth do that would trigger the Amendment? Class?

    “Yes, in the back. Ferris.”
    “Create civil unions in addition to marriage as defined in the Virginia Code.”
    “Okay, that would be unconstitutional.”
    “Anything else? Class? Class? Ferris?”

  3. Anonymous Avatar

    If a handful of gay people want to fool themselves into thinking they are married, why should anyone else think it affects their own values?

  4. James Atticus Bowden Avatar
    James Atticus Bowden

    Anon: The issue is a bit bigger than your (rhetorically speaking) values.

    It goes to a fundamental institution of civlizations – all civilizations for all of history – being destroyed by making marriage mean anything and nothing.

    It is about what is best for children.

    It is about what is best for the secular state.

    It is about the agenda that leads inevitably to suppressing Christian free speech.

  5. Anonymous Avatar

    “What could the cities, counties or Commonwealth do that would trigger the Amendment? Class?”

    A business, organization, or local government could recognize domestic partnerships for inclusion in benefits such as health insurance, life insurance, family medical leave, etc.

    Deena Flinchum

  6. James Atticus Bowden Avatar
    James Atticus Bowden

    Read the second paragraph, Deena. It’s about government. So a local government could recognize a ‘domestic partnership’?

    How is that different from a civil uniom? Why would a locality recognize a domestic partnership for what purposes? How would the city or county define a domestic partnership?

  7. …let’s name something a city, county or the Commonwealth could create that approximates marriage.

    You “forgot” recognize. As in “create OR recognize.”

    Restating the obvious: A court (as in a “political subdivision” of the Commonwealth, appointed by the legislative branch) could decline to enforce (recognize), when challenged, one or more of the private contracts executed by a couple who executed them in order to “approximate” some of the many rights and obligations of marriage.

    A court (as in a “political subdivision” of the Commonwealth, appointed by the legislative branch) could declare the prosecution of a “cohabiting” batterer under Virginia’s domestic violence statute unconstitutional, since it would be “recognizing” a “legal status” that “intends to approximate” an aspect of marriage. Defense attorneys are obligated to make this argument. “Cohabiting” means “living as a spouse.”

    These things will happen, because they already have happened.

  8. lontlont Avatar

    “I’m not a constitutional scholar, so I cannot make an intelligent judgment on what the amendment means for the legal rights of gays.”

    That’s not very descriptive: what do you think the legal rights of gay people _should_ be?

    I think that gay people and their families are no threat to society and the more stable their unions are the better. They should have full access to the same sort of legal rights (such as visitation, power of attorney, et.c), and preferably it should come in a single simple package rather than thousands of dollars of legal fees for something that’s still far short of assured. I don’t really care whether it’s called marriage or not. But it’s justice: their families exist, they are appropriate, and they functionally reproduce everything that I think that marriage is supposed to be about. The law needs to recognize that, regardless of the details.

  9. Anonymous Avatar

    Someone such as CG2 could certainly answer this better than I but my understanding is that a “civil union” is similar to a civil marriage except that it is largely extended to people who cannot “marry”, that is, gays. It requires a formal registry and must be recognized as a governmental right in order to exist. For example, a gay couple could not enter into a “civil union” in Virginia. Virginia does not recognize civil unions now.

    Domestic partnership identifies a personal relationship between individuals who are living together and sharing a common domestic life but are not joined in any type of legal marriage or civil union. Some legal jurisdictions recognize that individuals who live together after a long period of time, while not entitled to common-law marriage status may be entitled to some protection under the legal concept of domestic partnership. See “ for an extended definition.

    Generally speaking, a domestic partnership can be established more informally. And a business could recognize domestic partnerships by requiring an affidavit of domestic partnership which can cover various conditions but usually requires that domestic partners must be able to demonstrate they have lived together for a specific amount of time, have certain financial responsibilities toward each other, are not married to other persons,etc. In short it is not a marriage or a civil union but a more informal situation.

    I am willing to drop local government from my list, JAB, and stick strictly to organizations and businesses. However I hasten to point out that one of the “selling points” of this amendment was that it would not affect existing arrangements regarding benefits and legal protections for gay citizens.

    {“As for the instances you cite regarding the recognition of legal rights of gay people, I am totally sympathetic to their plight. I’m not entirely convinced that Virginia’s protection-of-marriage amendment would nullify such arrangements, but I definitely would be opposed to the amendment if I could be persuaded that it did.” Jim Bacon in a recent posting.}

    A business or organization may recognize domestic partnerships for the same reason that it might offer family coverage for health insurance instead of just individual coverage: It wants to attract the best employees. For strictly business purposes, a business might want to offer a gay person domestic partner benefits because it wants to employ him or her because it considers him or her to be the best qualified employee and might – rightly – believe that this person would seek employment in a friendlier atmosphere if he or she finds Virginia inhospitable to gays.

  10. Anonymous Avatar

    I neglected to sign the Anon 4:42 posting but I am Deena Flinchum.

  11. lontlont Avatar

    I have a feeling that the NJ ruling will make the passage of this amendment in VA a sure thing, if it wasn’t already.

  12. James Atticus Bowden Avatar
    James Atticus Bowden

    Need a lawyer here. Since when is a branch of government specified in our Constitution with its own article – the judiciary – a political sub-division?

    Let’s say it isn’t. So when would GOVERNMENT want to create a marriage like arrangement? Why?

    If a company wants to give benefits to employees pets – that is contract law, not marriage and not government.

  13. Anonymous Avatar

    Three paragraphs, and I couldn’t figure out what you were saying or what point you were trying to make in any of them.


  14. Bill Garnett Avatar
    Bill Garnett

    For heaven’s sake – you folk are still dancing around this issue and pretending like giving homosexuals equal civil rights would bring down society.

    I recently lived in Saudi Arabia for six years and in The Netherlands for 2 ½ years. I’ve seen the two extremes (decapitation in one and “no big deal” in the other). The erudite posters on this site seem clueless to the medical and scientific conclusions of recent decades, and seem to have little appreciation for the expansion of civil rights that have been a hallmark of our democracy.

    Marriage as an institution is under attack by heterosexuals and not by homosexuals. And apart from sexual orientation, homosexuals are and should be equal citizens in our democratic experiment. Our wiser forefathers saw the possibility of tyranny by the majority – look around and you see it in its reality today.

    Pompous pronouncements by the inheritors of the Orval Faubus, George Wallace, Strom Thurmond type of southern white boy mentality is an insult to better nature of Virginians.

  15. The NJ Supreme Court put it about as well is it can be put.

    “Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose.”

  16. James Atticus Bowden Avatar
    James Atticus Bowden

    Ok,Class, no one has given a reason that Government – cities, counties, or the Commonwealth – would want to create anything that approximates marriage,except to create civil unions or domestic partnerships – which approximate marriage.

    What would be the compelling reason for government to create civil unions and domestic partnerships?

    The real purpose of civil unions and domestic partnerships is to approximate marriage. So, the New Jersey Supreme Court said quasi-marriages need to be the same as real marriages.

    Aha. Precisely why the second paragraph is needed. If we don’t have quasi-marriages in Virginia then judges don’t have any basis to make up rulings.

    The most appalling thing about the NJ ruling isn’t the institution of homosexual ‘marriage’ in NJ, but the Judicial branch ordering the Legislature to write the laws it wants. That’s judicial tyranny. The Liberals in the NJ legislature look forward to it. The Conservatives, who are so outnumbered, should act to constrain such an abuse of power.

  17. Anonymous Avatar

    “What would be the compelling reason for government to create civil unions and domestic partnerships?” JAB

    It would in the the interest of government to “create or RECOGNIZE” domestic partnerships in Virginia (civil unions are not at issue) for the exact same reason that it is in the interests of businesses and organizations to do so: to attract and KEEP excellent employees.

    Example: It is fairly common for universities, including state universities, to offer jobs to the spouses of academics and administrators whom they are trying to recruit. Some equally offer positions to domestic partners of those whom they are trying to recruit.

    I forget the details but there was some big whoop at VT a few years back about this issue and I believe that the end result was that the domestic partner got a job offer and the sought-after employee and her domestic partner came to VT.

    If this amendment passes, would state universities in VA be able to use this offer as a recruitment tool for other than state recognized spouses? Keep in mind this amendment applies to unmarried couples – gay or straight. To the best of my knowledge, this job offer applies only to spouses or their equivalent, not any other relative.

    If no, what affect might this have on the ability of VA’s colleges and universities to recruit staff, especially as other states do recognize domestic partnerships and act accordingly? What affect might this have on the standing of VA’s higher education system?

    Deena Flinchum

  18. Anonymous Avatar

    “The most appalling thing about the NJ ruling isn’t the institution of homosexual ‘marriage’ in NJ, but the Judicial branch ordering the Legislature to write the laws it wants. That’s judicial tyranny.”

    Are you really so legally ignorant as to not know that this is, in fact a pretty common and uncontroversial thing?

  19. Bill Garnett Avatar
    Bill Garnett

    I offer this opinion from J. Harvie Wilkinson III, a judge on the U.S. Court of Appeals for the 4th Circuit.

    “Ordinary legislation — not constitutional amendments — should express the community’s view that marriage “shall consist only of the union of a man and a woman.” To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country’s founding charter as their own.”

    Democracy is far from perfect – as anyone who has read from our founders’ writings will agree. And certainly there exists the tyranny of the majority – which is essentially what opposition to gay rights is, now that science and medicine have concluded that homosexuality is a state of being and NOT a moral choice. Perhaps you think it was “activist judges” that stopped segregation or allowed mixed marriages or found in Lawrence v. State of Texas a right of privacy. We have a three part balanced government, and having the wisdom of independent and wise judges is often a balance against the tyranny of the majority and the hypocrisy of our recent elected officials.

  20. James Atticus Bowden Avatar
    James Atticus Bowden

    Deena Flinchum: So the compelling reason for the state to recognize homosexual marriage – but not others or all others (Muslim, Fundamentalist Mormon, Group, etc.) – is to keep state employees from going to another state? That’s it? That’s the most powerful moral-ethical-legal-political reason?

    Bill Garnett: Was why homosexuality one thing in 1972 but something different in 1973 in science and medicine? Was there a big discovery or politics in the professional associations? The science isn’t settled on homosexual behavior.

    The Judiciary doesn’t have the power under any state or the Federal Constitution to write laws or order the legislature to write laws. That is a seized power, not a separated and balanced power.

  21. Bill Garnett Avatar
    Bill Garnett

    TO: anonymous

    Judge James Harvie Wilkinson, III

    Judge, U. S. Court of Appeals for the Fourth Circuit
    Nominated by Ronald Reagan on January 30, 1984, to a seat vacated by John Decker Butzner, Jr.; Confirmed by the Senate on August 9, 1984, and received commission on August 13, 1984. Served as chief judge, 1996-2003. Republican candidate for U.S. House of Representatives from Virginia, 1970 – Law clerk, Justice Lewis F. Powell, Supreme Court of the United States, 1972-1973.

    This judge is most certainly NOT a liberal nor activist judge and anyone who knows anything about law would laugh at your assertion.

    As for gays having an agenda to get their hands on children, that is equally ludicrous. Abuse and sexual misuse of children is well known by all research to be predominantly by heterosexuals and specifically by heterosexual males on young girls. If you have contrary data, then put it up or shut up. Here is the conclusion of the American Psychological Association: “Gay and Lesbian Parents Are as Fit and Capable as Heterosexual Parents, and Their Children Are as Psychologically Healthy and Well Adjusted. By Singling Out Same-Sex Relationships as Inferior, the State Harms the Children of Those Couples.”


    You are anonymous – and like your KKK forebears use ignorance and prejudice to spread your lies. I am available and in the phone book and can stand behind every assertion I’ve made. Society needs to fear you far more than gays.

  22. Bill Garnett Avatar
    Bill Garnett

    TO: James Atticus Bowden

    I’ve seen your pompous ratings all over the web and I wonder at your irrational fear of, aversion to, or discrimination against homosexuality or homosexuals. I also wonder at your entrenched attachment to outdated and superstitious views on homosexuality. Perhaps if you’d avail yourself of the research, you might educate yourself and avoid being an anachronism.

    Here are two places to start:

    And how convenient that when federal judges or state supreme court judges make a decision you don’t favor, you can dismiss then as “liberal activist” judges.

    And again, as a student of history, people like you help me understand how men like Galileo were such an upset to entrenched fundamentalist positions and to those who, regardless of the evidence, would forever be opposed to evolving truth.

  23. James Atticus Bowden Avatar
    James Atticus Bowden

    Bill Garnett: Better to worry less about the messenger and just try to contend with the message in the marketplace of ideas as best you can. Name-calling ‘anonymous’ doesn’t improve your arguments, although it may be the best some folks have.

    Here is a website for you to check out

    Why does 1% (2 or 4% depending upon which stat is right about the homosexual male population in the US) of the population commit 35% or so of the crimes of sexual abuse against children?

    The issue of the NJ court isn’t its like-ability. It’s the point that one of the separate branches of equal political branches of government is ordering another to step lively – and in NJ the Liberals look forward to doing it. The judiciary has usurped executive and legislative powers and the no one has stood up to their tyranny.

    A better sobriquet than Liberal activist judge is ‘black-robed priest-kings’. The tyrannical judges seek to take the powers of priests for moral-ethical decisions and the powers of kings for all the powers of government – legislative, executive and judical.

    Thanks for reading my stuff at other places on ‘all over the web’.

  24. It’s not hard to fix it if you don’t like it, just as it hasn’t been hard to get it to this point where it looks like it will pass.

    Next january the assembly could pass changes to the parts they don’t like, if there is a majority view that it should be changed.

    Then the next year they can do the same thing, as there will have been an intervening election.

    Then we can vote on the changes in November of 2008.

    There is NO WAY that any “bad side effects” could possibly be invoked within that time period. And there was no chance Virginia was going to overturn any of its current laws in that time period.

    On the other hand, I happen to think it’s a GOOD thing that it would take at least a couple of years and an election AND a referendum to get Virginia to support same-sex marriage.

    Seeing how many democrats who voted for this bill TWICE are now coming out against it simply because of special-interest pressure tells me that we could well have had an assembly overthrow the law in short order without this amendment, and the people would have little redress.

    Something as big as changing the fundamental building block of society should be a LITTLE harder than getting a bare majority of the legislature to agree with you.

  25. Bill Garnett Avatar
    Bill Garnett

    TO: James Atticus Bowden

    If I have offended you, I apologize. I would hope that you are willing to engage in Socratic debate and to be open minded and accepting of facts. Far too many of the proponents of this amendment appear to be unburdened by the facts.

    I visited your reference to Dr. Warren Throckmorton’s website and I fail to see how this one person and this one website expresses more than a very minority view, and one that is not based on peer reviewed medicine and science. I have given references to numerous studies carried out over decades and which are acknowledged as professionally peer reviewed. These include the conclusions of the American Medical Society, the American Psychological Society, The National Association of Social Workers, and the World Health Organization. They uniformly conclude that homosexuality is a state of being and not a moral choice. Child welfare and mental heath professional also agree that children raised by gay and lesbian parents fare as well as children raised by heterosexual parents on all measures of well-being, development and adjustment

    If you are in disagreement with these facts then lets debate this on the basis of facts.

    As I think you know, Judge James Harvie Wilkinson, III, is a conservative Republican and I would be surprised to find any member of the bar who would even remotely characterize him as an “activist judge”. He has said in part, “Ordinary legislation — not constitutional amendments — should express the community’s view that marriage “shall consist only of the union of a man and a woman. To use the Constitution for prescriptions of policy is to shackle future generations that should have the same right as ours to enact policies of their own. To use the Constitution as a forum for even our most favored views strikes a blow of uncommon harshness upon disfavored groups, in this case gay citizens who would never see this country’s founding charter as their own.” Which coincidentally is very much aligned with the philosophy of government espoused by Thomas Jefferson. Here again, if you differ, let’s debate on the basis of facts.

    There is disagreement among learned theologians on the interpretations of the few Biblical verses that even tangentially touch on the matter of homosexuality. I offered one such interpretation by a Baptist theologian, Dr. Rembert S. Truluck – Doctor of Theology from Southern Baptist Theological Seminary, Louisville, KY, 1968. Southern Baptist Pastor from 1953 to 1973, Professor of Religion at Baptist College of Charleston, SC, 1973-1981.

    “This incorrect rendering of malakoi and arsenokoites as references to gender orientation has been disastrous for millions of gay, lesbian, bisexual, transsexual people. This mistaken translation has enlisted a mighty army of ignorant religious fanatics against homosexual people and has turned many Lesbians and Gays against the Bible, which holds for them as for all people the good news of God’s love in Christ.

    Three of the passages: Genesis 19:5; I Corinthians 6:9 and I Timothy 1:10 are incorrectly translated. The other three: Leviticus 18:22; 20:13 and Romans 1:26-27 are taken out of their original setting of condemning idolatrous religious practices and wrongly used to judge and condemn people of the same sex who love each other. None of these passages refer to people of the same sex who love each other. None originally were aimed at homosexuals.”

    I provide this in the hope that a rational, fair, and open-minded Socratic debate can take place where all points of view are respected, but where a rational enlightened discussion can take place.

  26. Ray Hyde Avatar

    Who cares what the Bible or anyone else says about gays? They are here, they are a fact, they are our friends and relatives. Even chimpanzees have gay relationships, with no conception of marriage one way or another.

    We don’t need a constitutional amendment to find a way to get along with the least amount of mutual grief. We certainly don;t need a constitutional amendment that gets in the way of finding the Way.

    Bfore we get all High and Mighty about this, lets try being a little Christian. And while we are at it, let’s find a way not to offend our Jewish, Muslim, Hindu, Sikkh, or Agnostic friends who may be gay and wish for some continuity, either.

  27. James Atticus Bowden Avatar
    James Atticus Bowden

    Ah, Ray, but do homosexual chimps get married?

  28. James Atticus Bowden Avatar
    James Atticus Bowden

    Bill Garnett: There are your facts and my facts and others’ facts. Ultimately, on many issues reasonable people agree to disagree.

    When I taught ‘Research and Methodology for the Social Sciences’ the text we used for the ‘words’ part of the class was Karl Popper’s “onjectures and Refutations.”

    Popper asks, “How do we know we know?” – basic epistemology.

    What passes as knowledge among learned people is actually a conjecture that stands until it is refuted by a better – hopefully empirically proven – conjecture.

    So for about 1500 years every learned person KNEW that the universe was made up of earth, water, air and fire in different combinations. To think otherwise was insanity or witchcraft evil. Oops. It was merely a good conjecture for the times.

    Rational empiricism is the energy for the Enlightenment and is based on a Protestant Christian view of the world that grew out of Thomas Acquinas’s thnking about knowing knowledge and knowing God. It assumes that the universe is created, not random – and obviously not based on the thermodynamics law of entropy.

    Thus, conjectures are challenged by a null hypothesis. If that null hypothesis stands, then it can be the new conjecture of facts – knowledge. Which is precisely the technique used in statistics for causal analysis.

    Therefore, the case of what homosexuality is – other than the sex acts – is not settled. Regardless of what it is, it isn’t the basis for marriage. No one in history – ever – made that mistake.

    I find fixing our Virginia Constitution distasteful, but given the ill temper of the times and loss of reason and commonsense among Liberals, it is a bit of necessary Constitutional concrete to protect a fundamental institution from judicial tyranny.

    Finally, homosexual behavior is sinful to the God of the Holy Bible. OT and NT.

  29. Anonymous Avatar

    “Deena Flinchum: So the compelling reason for the state to recognize homosexual marriage – but not others or all others (Muslim, Fundamentalist Mormon, Group, etc.) – is to keep state employees from going to another state? That’s it? That’s the most powerful moral-ethical-legal-political reason?” JAB

    Of course not. I think I made it clear that my posting was in response to your question as to what the compelling reason for government to create (or recognize)civil unions and domestic partnerships would be.

    If there has been any consistent opinion on this excellent blog in the months I’ve followed it, it has been that “the business climate” in Virginia is the Holy Grail. This amendment will hurt “the business climate” in Virginia while at the same time doing nothing to strengthen traditional marriage IMO. I could go on with why I think this amendment is wrong but I think most of what I’d say has already been said.

    Deena Flinchum

  30. James Atticus Bowden Avatar
    James Atticus Bowden

    The Holy Grail about marriage in Virginia is the children. What is best for the children.

    So, (let’s see if I get this right), the compelling reason for Virginia’s governments to create civil unions or domestic partnerships is to keep homosexual government employees and not lose them to other governments?

    Businesses can create whatever benefits packages they like. The Amendment and the DOMA law don’t change that.

  31. Ray Hyde Avatar

    No, chimps don’t get married, but they do form long term polygamous bonds, and the entire tribe takes care of the children.

    It seems to work fine for them, but it is immoral and against the law for humans.

    Maybe that’s our problem.

  32. James Atticus Bowden Avatar
    James Atticus Bowden

    Ray, I’ve been married for 31+ years. Polygamous, hmmm. I gotta think about that. Does that mean there would be more than one ‘she-who-must-be-obeyed’ and/or would there simply be more than one fun partner? Gets complicated here? Who would you have to go shopping with – one or all or what?

    It’s a bit confusing. The alternatives are.

  33. NoVA Scout Avatar
    NoVA Scout

    JAB: Let’s stipulate that homosexual chimps don’t get married (while we’re at it, we might as well go out on a limb and postulate that heterosexual chimps don’t get married either). Now what?

  34. James Atticus Bowden Avatar
    James Atticus Bowden

    Beats me, NoVa buddy, beats me. If we can’t do as the chimps do, I just dunno.

  35. lontlont Avatar

    “The Holy Grail about marriage in Virginia is the children. What is best for the children.”

    What about the children of gay parents? What’s best for them? Deportation?

    Tell me James: what WOULD you do with the faux families that gays procure just to get you angry, if you had your druthers?

    “The Judiciary doesn’t have the power under any state or the Federal Constitution to write laws or order the legislature to write laws. That is a seized power, not a separated and balanced power.”

    Except that’s not what’s at issue, funnily enough. The court told the legislature that it had a time period in which to remedy a situation they deemed unconstitutional.

    YOU asserted that this is an amazing grab of power. However, in the face of that, it turns out to be fairly common and uncontroversial in legal circles. Heck, even the most conservative jurists aren’t pointing to that part of the ruling as wrong. It’s only the legally-illiterate.

  36. James Atticus Bowden Avatar
    James Atticus Bowden

    Iontient: “The court told the legislature that it had a time period in which to remedy a situation they deemed unconstitutional” That is ordering the legislature to legislate. That isn’t in anyone’s constitution. The fact that courts have been seizing and abusing power – and lawyers are comfortable with it – doesn’t make it right.

    What should faux families – assuming they are homosexual, not Fundamentalist Mormon polygamy which is more complicated – do with the kids? I suppose it depends on where they procured them. Did one parent provide seed or egg for someone else who isn’t a parent, but actually is the real mother or father? Or did they get the kids by adaption?

  37. James Atticus Bowden Avatar
    James Atticus Bowden

    Iontient: If you are a lawyer, please tell us where in the Constitution of Virginia or the Code it says courts can tell the legislature to write laws.

    Has a Virginia Supreme Court done this? When was the first instance of the Virginia Supreme Court telling the General Assembly to step and fetchit?

  38. Bill Garnett Avatar
    Bill Garnett

    Consider an unmarried couple, gay or straight, that decides in Virginia that they want to approximate the rights and benefits of marriage and who go to an attorney and pay untold amounts of money to have wills, contracts, visitation rights, declarations concerning life sustaining procedures, child custody, etc. etc. drawn up.

    “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”

    Legal experts are already having opposing views on whether or not these documents are prima facie evidence of a violation of the marriage amendment. When there is anything at stake: property, children, emotions, etc, you can be sure there will be endless litigation.

  39. Bill Garnett Avatar
    Bill Garnett

    “A writ of mandamus or simply mandamus, which means “we command” in Latin, is the name of one of the prerogative writs in the common law, and is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly”

    We have a system of government where power is delicately balanced. Our founders knew that power corrupts and intended to retain power with the people while at the same time preventing a tyranny of the majority.

    It is in American legal and constitutional tradition to have the courts require the executive or legislative branch to follow a judicial interpretation. And we have seen this in many civil rights areas where “the law of the mob” has been replaced with judicial restraint and reasoned argument.

  40. Ray Hyde Avatar

    I’m just poking a little fun here, with the chimps. All I’m saying is that God hasn’t set clear standards for behavior amongst his creatures, even though we believe he has set clear standards for us.

    Sometimes, when you see a tribe of chimps screaming and gesticulating over some social insult, you wonder how different we really are.

  41. James Atticus Bowden Avatar
    James Atticus Bowden

    Bill Garnett: Are you saying that the NJ Supreme Court was a writ of mandamus? It wasn’t.

    Are you saying that laws from the legislatures = the rule of the mob?

    Ray: I thought it was funny – nice break.

    God gave humankind good standards with the Ten Commandments.

    When you think of how we quarrel, remember Jonathan Swift and Gulliver’s Travels. Remember the cause de guerre for the Lilliputians? So we are.

  42. Bill Garnett Avatar
    Bill Garnett

    Mr. Bowden, I wonder if we can find an area of common ground. I agree that the writ of mandamus was not the legal basis of the recent New Jersey Supreme Court ruling. I was attempting though to inform as how there is a balance between branches of government and that mandamus is a part of that.

    The ruling was the court’s interpretation of that state’s constitution and gave the legislature free rein as to how they would address that. The legislature can move to amend their constitution to mute the issue, one way or another, or they have a variety of ways in which they can modify the state’s legal code.

    By using the metaphor of the mob, I was attempting to remind about the response we are all familiar with of some whites, especially in Mississippi and Louisiana, to the Brown vs. Board of Education decision, and the reality that it was the court and not the legislature that stood up for the inherent rights of all to public education access regardless of race.

    Mr. Bowden, there does exist the concept in our democracy of “the tyranny of the majority”. How do you view this concept?

  43. James Atticus Bowden Avatar
    James Atticus Bowden

    Bill Garnett: Re:”The ruling was the court’s interpretation of that state’s constitution and gave the legislature free rein as to how they would address that.” Let me try plainer English. It isn’t the Court’s job to do this. It isn’t in the Constitution under their powers and authority.

    You need look no further than Virginia for the problem of de jure segregation. SCOTUS said it was okay in Plessey v Ferguson. So, it should be ‘settled law’ and untouchable, right? LOL. SCOTUS is one of the 3 political branches of government.

    Obvioudly not, so after the SCOTUS’ Brown v Topeka Board of Education reversing itself (as it will someday on many issues – Hooah!) Democrat Harry Byrd lead a response called Massive Resistance.

    In decision after decision – for de jure segregation it was easy enough to cite Brown as the basis for unconstitutionality of racial segregation (Although there are 14th Amendment misapplications in Brown I don’t want to get into here).

    But, it took the 1964 Civil Rights Act and the 1965 Voting Rights Act – and their Constitutional tests – to win the Civil Rights struggle for all Americans.

    Since then a number of Court decisions abusing the moral high ground of Brown and the 64/65 Acts have been acts of Judicial tryanny in the name of integration. The classic example of this abuse is the Federal Court’s ordering Kansas City Schools to spend more money (and thus raise more money) in a failed attempt to improve education.

    I taught American Government. The concerns of ‘faction’ and direct democracy are addressed in the Federalist Papers. James Madison addressed those concerns in his design of the Federal Government in this second Constitution with separated powers, checks and balances – which are gone when the Judges seize power and no one stops them. Madison provided that Senators be elected by the legislatures not direct votes.

    I suppose you must oppose that Constitutional amendment that clearly provides for a tyranny of the majority – even in tiny states – to elect co-equal 100 senators to 6 year terms.

    The answer to any tyranny of the majority is our Constitutions – Commonwealth and Federal not the supra-Constitutional abuse of power by the judiciary.

  44. Bill Garnett Avatar
    Bill Garnett

    I recommend that Mr. Bowden and all readers on this blog read this recent posting:

  45. James Atticus Bowden Avatar
    James Atticus Bowden

    Actually, in America we have INDIVIDUAL rights which can not be denied based on a minority status (sexual behavior is not a minority identity like race, creed , color or national origin). The idea of group rights was discussed at great length by the Founding Fathers for the present Constitution – and rejected as a concept. We have individual rights which can not be abused by majority rule through government.

  46. Bill Garnett Avatar
    Bill Garnett

    Well, James Atticus Bowden, do you view Lawrence v. Texas as an improper judicial action? The decision seems to have found a right to privacy that never before existed in the Constitution.

  47. Bill Garnett Avatar
    Bill Garnett

    James Atticus Bowden, You state, “sexual behavior is not a minority identity like race, creed, color or national origin”. Is this just your opinion or can you reference this factually?

  48. James Atticus Bowden Avatar
    James Atticus Bowden

    Bill Garnett: Lawrence v Texas was another terrible decision by SCOTUS.

    I tried to show that there are your facts, my facts, etc… So, how to reference that a sexual behavior isn’t a minority group? How about the fact that homosexuals come in every race, creed, color and national origin, and are engaged in a type of behavior but bear no other distinguishing characteristics (or do they – that’s for you to tell everyone how ‘gaydar’ works), that would indicate that behavior does not a minority group make.

  49. Bill Garnett Avatar
    Bill Garnett

    James Atticus Bowden

    Could you clarify, is it that it was terrible for the court to make such a ruing OR that it’s terrible for citizens to have that right to privacy?

    And it seems to me that creed, color, and (under some views) national origin are variable, and on a spectrum. I find it puzzling that you don’t see sexual orientation (from an objective point of view) as a characteristic also. You seem to be as reluctant as Delegate Robert Marshall to accept the predominate science on this subject. I could be skeptical too, except that this has been the conclusion of the scientific community now for decades – certainly a researcher could make a name for himself by proving this rather accepted science wrong – I’m not paranoid enough to believe that such a major contrary conclusion could be obstructed.

    And do you also take the position that Loving v. Virginia was also wrongly decided?

  50. James Atticus Bowden Avatar
    James Atticus Bowden

    I posted a response, but it didn’t take.

    Loving was properly decided but at least one of the decisions had some loose rhetoric trying to establish new ‘rights’.

    The Lawrence v Texas was a bad decision in many respects. There is no right to privacy, abortion or sodomy in the U.S. Constitution. The rights listed there are in Enlish. You can list them.

    Stay puzzled all you like that sexual behavior doesn’t make one a minority.

    What is the distinction in sexual behaviors for adultery, incest, homosexuality, bestiality, pediophilia? All of those are sexual behaviors.

  51. Bill Garnett Avatar
    Bill Garnett

    James Atticus Bowden

    No you are not correct. Homosexuality is a sexual preference, which science and medicine conclude is a state of being. It may or may not occur with any sexual activity at all.

    To associate homosexuality with adultery, incest, bestiality, and pedophilia is often a mean-spirited attempt by homophobes to demonize gays and lesbians. I don’t know if that is what you are trying to do, I’ll let you clarify that yourself.


    To the readers of this blog: Every person is a member of a minority group based on some defining characteristic. On this website and others one can find attacks on minorities for one reason or another. And often there attacks are argumentum ad hominem. I bite my tongue not to attack James Atticus Bowden personally. I do ask though that someone who presents himself with such credentials be fair minded and balanced in their arguments and would, at the least, look for truth through facts and rational argument.

    Some will start with a conclusion, and then fight to the end with any ammunition available, to insist that they are correct. Or they will find facts especially threatening to their interests. If these people are powerful, then their wraith can be to silence any opposition.

    Copernicus and Galileo came up against such people. Too often the intersection of religious belief and scientific fact results in such conflict. Frequently the conflict between two sets of religious beliefs results in conflict. But eventually science wins out as science is the best evidence we have of the reality in which we life. And science is, for some, the discovery of Gods’ laws.

    Perhaps here is a good place to share from the Department of State an except of Democratic Principles that our country preaches around the world:

    “Majority rule is a means for organizing government and deciding public issues; it is not another road to oppression. Just as no self-appointed group has the right to oppress others, so no majority, even in a democracy, should take away the basic rights and freedoms of a minority group or individual. Minorities — whether as a result of ethnic background, religious belief, geographic location, income level, or simply as the losers in elections or political debate — enjoy guaranteed basic human rights that no government, and no majority, elected or not, should remove.”

  52. James Atticus Bowden Avatar
    James Atticus Bowden

    “Homosexuality is a sexual preference, which science and medicine conclude is a state of being. It may or may not occur with any sexual activity at all.” You can have a preference for incest, adultery, bestiality, pediophilia and not have any sexual activity at all too. Sex is an act of choice – to chose to do a behavior or not. The attraction, or preferences, are more than the bifurcated hetero and homo.

    Homophobe means fear of homosexuals. The better term for those who oppose honoring and exalting homosexual behavior is anti-homosexual or, perhaps, pro-normal.

    In the Bible homosexual behavior is listed after adultery and in between incest and bestiality. I guess Moses didn’t know it was a preference instead of a behavior – as if that makes a difference.

  53. Bill Garnett Avatar
    Bill Garnett

    Look, I can debate you on the Bible too – but this is a secular and a civil government matter. This is a secular country and not a Christian country as you may insist.

    A heterosexual male has a preference for females – and it would be unreasonable to normally and routinely associate a typical heterosexual male with such behaviors as incest, adultery, bestiality, or pedophilia.

    But you, for your own reasons, insist on associating homosexuality with those behaviors routinely.

    The definition of homophobia is: irrational fear of, aversion to, or discrimination against homosexuality or homosexuals. You fit the classic definition.

    And I find no reference where you are asked to “honor or exalt” homosexuality.

    Your reference to the Bible reminds me that we’ve had a long history of the devil masquerading as a preacher man. Maybe a verse or so would be useful for you.

    John 13:34
    A new commandment I give unto you, That ye love one another; as I have loved you, that ye also love one another.

    Matthew 5:43-47
    Ye have heard that it hath been said, Thou shalt love thy neighbour, and hate thine enemy.

    But I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you;
    That ye may be the children of your Father which is in heaven: for he maketh his sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust.

    For if ye love them which love you, what reward have ye? do not even the publicans the same?

    And if ye salute your brethren only, what do ye more than others? do not even the publicans so?

  54. Roy B. Scherer Avatar
    Roy B. Scherer

    Just a few words here for your consideration, if I may.
    Remember that the amendment would specifically nullify any contract or arrangement that INTENDS to give the rights/obligations of marriage, and that it applys to ALL unmarried couples. If you’re really worried about “activist judges”, then just imagine what they’ll do with the language of this amendment.
    I sent this as a LTE to the Times-Dispatch last week, but they had over 500 good letters as of this morning, and were frantically winnowing them down. Here’s what I wrote:

    I’d like to encourage people to vote for the children on Tuesday.

    Two of my close friends have been together for fourteen years, and they have two children, twelve and seven years old. They’re delightful, and both of their mothers love them very much.

    Their birth mother stays at home, minds the house, and home-schools the children. Their other mother works at her profession, pays the mortgage and other bills, and helps with the house and the kids.

    Since the parents realize that sometimes bad things can happen, they’ve taken the precaution of making a contract (something that would not have been necessary if they had been allowed to marry). The breadwinner has acknowledged that the children are hers, and that she assumes full responsibility for their care and education. Should they break up, or if their birth mother should die, the children are provided for. Also, the birth mother and the children have been covered for years under the other mother’s insurance policy at work.

    That is, they are provided for right now. If the so-called marriage amendment is passed, both the insurance and the contract will be explicitly nullified, since they are intended to provide the “rights, benefits, [and] obligations” of marriage. That means that if the birth mother or either of the children should have a serious illness, the insurance that they’ve been paying for will not be allowed to cover it, and the family will go bankrupt. It also means that if the birth mother should die, their other mother will no longer have an obligation, nor even any right, to care for them. The Commonwealth would have to take the children and place them in an orphanage or in foster homes.

    Please, vote for the children, and defeat the so-called marriage amendment.

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