damnum absque injuria

September 6, 2006

On Marriage Amendments

Filed under:   by Xrlq @ 11:45 pm

Via VA Politics Blog, appellate judge J. Harvie Wilkinson has an op-ed against marriage amendments generally. He makes a decent case against marriage amendments generally, but I think a better case can be made against Virginia’s proposed constitutional amendment in particular, which would add a new Article I, Section 15-A to the Constitution to read as follows:

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.

Just for grits and shins, the same legislators who thought we really, really, really needed a constitutional amendment to repeat what our statutes already made clear, and what none of our judges have challenged to date, also thought it would be cute to stick the marriage prohibition in the Bill of Rights. Here’s a brief summary of how our Bill of Rights will look like if when this thing passes:

1. Right to life, liberty, and pursuant of happiness – unless you’re a poofter. Technically, poofters can still pursue happiness, provided the General Assembly makes sure they never attain it.

2. All power is vested in the people, unless they are poofters.

3. Government exists for benefit of the people – or at least, all people who aren’t poofters – and if found contrary to such purposes, may be abolished by the non-poofters among them.

4. No exclusive emoluments or privileges, offices not to be hereditary. No problem there; poofters tend not to reproduce, so pooftery is unlikely to be inherited anyway.

5. Separation of powers, periodic elections. No poofters!

6. All elections must be free. More specifically, they must be free of any legislation designed to benefit poofters, at least if such legislation looks, feels or smells like marriage.

7. Laws not to be suspended – even if they target poofters.

8. Right to speedy trial by unanimous jury by one’s heterosexual peers (or bench trial, at defendant’s option), privilege against self-incrimination, other basic procedural rights for accused criminals not suspected of being poofters.

8-A. Rights of crime victims, possibly to their families, but not if the family members are “family” by reason of pooftery.

9. No excessive fines or bails, no cruel and unusual punishment, no ex post facto laws, no bills of attainder – unless, of course, you count a bill attainting all poofters equally. No suspending habeas corpus unless you have a really good reason for it. Fear of pooftery probably isn’t a good enough reason, but who knows?

10. No general warrants, resulting in unreasonable searches and seizures. This one applies especially to poofters; there’s no telling what kind of kinky stuff you might find while unreasonably searching or seizing them. Eeeewww!

11. No deprivation of life, liberty or property without due process of law, right to trial by jury, no laws impairing the obligations of contracts, no takings without just compensation, and no discrimination by race, color, sex, national origin or anything else except pooftery. No poofters! Separate but equal bathrooms for men and women are OK, though, so don’t try suing over that, ya perv.

12. Freedom of speech and of the press; right peaceably to assemble, and to petition for redress of grievances unrelated to pooftery.

13. Right to keep and bear arms – even for poofters.

14. No Hezbollah-esque state-within-a-state shall be formed, so forget about establishing gay marriage or civil unions that way, you poofters.

15. Citizens have rights to be straight as well as duties not to be gay, and public schools are neat-o.

15A. No poofters!

16. Freedom of religion, no religious tests for government. Testing for pooftery is fine, though.

17. The rights enumerated in the Bill of Rights shall not be construed to limit other rights of the people not therein expressed – unless you’re a poofter.

5 Responses to “On Marriage Amendments”

  1. jjv Says:

    The Virginia Marriage Amendment should be passed. What you refrain from mentioning is that lately the Supreme Court counts up States which prohibit or permit something (like the death penalty for minors) and then say our “evolving standards” make those in the minority unconstitutional. Virginia should be added to the list to make clear New Age marriage nonsense has no place in the Old Dominion.

    Also, Wilkerson’s article was a joke. No constitutionalizing family law? What about marriage age (must be the same for men and women no matter what state’s say); bastardy(no penalties for); sodomy(ditto); abortion(ditto); due process rights for kids in schoold; grandparents have no rights; cohabition (I’m pretty sure they’ve said no laws against this can stand) and on and on.

    Also, policy decisions (like the dormant commerce clause) are found throughout the Constitution. It was an incredibly weak piece by a good judge.

  2. Xrlq Says:

    What you refrain from mentioning is that lately the Supreme Court counts up States which prohibit or permit something (like the death penalty for minors) and then say our “evolving standards” make those in the minority unconstitutional. Virginia should be added to the list to make clear New Age marriage nonsense has no place in the Old Dominion.

    Section 20-45.2 of the Code of Virginia prohibits gay marriage. That alone is enough to make Virginia count among the states whose laws oppose gay marriage, but that didn’t stop the General Assembly from going further overboard and passing Section 20-45.3, which prohibits civil unions and even private contracts intended to approximate their results. So passing the amendment to get us on the list of states that oppose gay marriage is silly; we’re already on that list. All the amendment will accomplish is to tie the hands of future legislators should they ever decide to get off the list – or even to stay on it but allow some experimentation with civil unions.

    Also, Wilkerson’s article was a joke. No constitutionalizing family law? What about marriage age (must be the same for men and women no matter what state’s say);

    That’s an equal protection issue, not a marriage one. The Supreme Court also says we can’t prohibit blacks from marrying whites, either.

    bastardy(no penalties for); sodomy(ditto); abortion(ditto); due process rights for kids in schoold; grandparents have no rights; cohabition (I’m pretty sure they’ve said no laws against this can stand) and on and on.

    Those are all federal issues, many of which the judge would likely concede should NOT have been constituitonalized in the first place – by other judges, that is. However, it’s one thing for Hawaii or Vermont to pass a “no, you dummies” amendment to undo their own courts’ excesses, and quite another for every other state to pass preemptive amendments dealing with topics their ow njudges have shown no signs of meddling in to begin with. Do you really think the Virginia Supreme Court would ever find a “right” to gay marriage under the Virginia Constitution as it is written now? Even if it did – or even we had good reason to expect it to – the appropriate response would be a far narrower amendment than the one on the ballot. Try this one, for instance:

    Nothing in this Constitution shall be construed to preclude the General Assembly from limiting marriage to one man and one woman, nor to require this Commonwealth or its political subdivisions to create or recognize any other union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

    That would leave the decisionmaking where it belongs, and I would vote for it in a heartbeat. But I’m voting against this one. I know, me and three other guys.

  3. Jon Henke Says:

    I’m sorry, but you’ve made a mistake and I can’t let this pass:

    ‘Rule Six, there is NO … Rule Six.’

  4. nk Says:

    I’ve commented on this before. This thing goes way beyond gay relationships. It could be construed to forbid anything other than intimate relations between one man and woman pursuant to a marriage license. Such as common law marriage. Living together. Hell, checking into a motel for a one-night stand. Good for you for voting against it.

  5. Xrlq Says:

    Nah, it won’t forbid private parties from doing anything. It’s a bad law, but it’s not that bad. As to common law marriages, few states recognize those. AFAIK Virginia never has.

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