THE MARSHALL-NEWMAN Amendment, which will appear on Virginia ballots for the Nov. 7 election, defines marriage as "a union between one man and one woman." A careful look at the complete amendment text, however, reveals that it does significantly more than this. The proposed amendment is deeply reprehensible for its attempt to write inequality into our state constitution, but the language used is also overly broad, such that the amendment would have an impact reaching far beyond what are traditionally seen as gay rights issues. This is about civil rights. It's also about common sense.
There are currently Virginia laws prohibiting gay marriage as well as same-sex civil unions. But the phrasing of the Marshall-Newman Amendment is more general than either of these, including not only same-sex couples, but all unmarried couples. Ultimately, it bans the state from recognizing or creating, for "relationships of unmarried individuals," any "union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage." A memo recently prepared by Arnold and Porter, LLP, together with a steering committee of Virginia lawyers, addresses the potential impact of the amendment, highlighting issues such as child custody arrangements, wills, private business benefits packages and the enforcement of domestic violence laws. There are an estimated 130,000 unmarried couples in Virginia, and 89 percent of them are heterosexual. So, this is hardly an issue limited to same-sex couples.
Domestic violence laws provide protections tailored to circumstances of danger and violence that occur within domestic relationships -- not limited to households with married couples. So, there is concern that, if the amendment is passed, such laws may become difficult to enforce in the context of cohabitation. In Ohio, which recently passed a similar amendment, this concern has become a reality, with a number of alleged abusers arguing that applying domestic violence laws to cohabitation violates the new amendment.
The response by Ohio courts has varied but includes cases in which alleged abusers have escaped charges on the grounds that applying the domestic violence laws was unconstitutional.
The enforcement of private contracts may also be complicated by the amendment. Child custody arrangements made by unmarried couples and wills bequeathing property to partners in the absence of marriage are examples of agreements whose enforcement might be hindered by the proposal. In short, the amendment would impede our ability to effectively make normal and practical contractual arrangements.
Given these concerns, even those opposed to gay marriage may wish to consider voting against the Marshall-Newman Amendment. Same-sex marriage is already prohibited under Virginia law, while this amendment risks other myriad undesirable effects -- effects that will be difficult to correct for once entrenched in the Constitution.
At the heart of this issue, however, lies a concern about justice. We need to stand up against inequality -- against an attempt to write discrimination into Virginia's Constitution and place additional hurdles on the road to justice. It is crucial to send the message that when adults in loving, long-term relationships take steps to craft a future together, that is nothing to fear. Certainly, it is nothing to fear so fervently as to contort your laws of contract and blemish your constitution.
Proponents of the Marshall-Newman Amendment will recycle the claims that have been made throughout the country: Gay marriage is immoral, and gay marriage will undermine the foundations of our society. The refrain -- though not deafening -- is certainly tiresome. Although some Virginians may be uncomfortable with the idea of gay marriage, it is not their right to dictate their choice for the rest of Virginia, and it is not their right to enshrine discrimination into our state constitution. For those uncomfortable with or opposed to the idea of same-sex marriage, it is important to remember that religious groups have always retained the right to refuse to marry a couple for any reason and that those states and countries which have legalized same-sex marriage or civil unions have continued to function normally.
The University community has specific reasons to oppose the amendment. Current Virginia laws against same-sex marriage and civil unions already make many people hesitant to move here, and passage of the Marshall-Newman Amendment will only act as a further deterrent. Realistically, concern over both the tangible impact of the amendment and the atmosphere such an amendment suggests will impede efforts by the University to recruit top faculty and students. Further, by elevating homophobia to the level of our constitution, it would hamper our ability to send a strong anti-discrimination message to the student body and foster an environment in which LGBT individuals can feel safe.
Ultimately this is an issue about justice, about common sense and about people -- whether professors in same-sex relationships, domestic violence victims or children caught-up in custody battles. How will history look at a state that has written discrimination into its central document?
Chelsea Rosenthal is a Graduate Arts & Sciences student and Jamelle Bouie is a second year in the College.
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