TODAY, there is much at stake at Virginia's polls. The national spotlight has been on Virginia for at least a month now because incumbent U.S. Sen. George Allen faces a real challenge from Ronald Reagan's former Navy secretary, Jim Webb. While opinions on these two candidates largely fall along partisan lines, there is one issue this election that need not be partisan: The anti-gay marriage amendment.
Right away, any knowledgeable reader will think: If there's anything subject to partisan debate, it's same-sex marriage. But that reader assumes that the amendment affects same-sex marriage at all. The so called "anti-gay marriage" amendment will affect many people, but gays are not among them. Same-sex marriage has been illegal in Virginia from time immemorial, and the difference between it being illegal in state law versus its illegality in the state constitutional is merely technical. The fact is this: Same-sex marriage could not be any more illegal in Virginia than it already is.
One clause in the proposed amendment guarantees that Virginia will not recognize "another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage." Proponents champion this clause, arguing that it guarantees Virginia will never have to recognize same-sex marriages that took place in, for example, Massachusetts. This is silly, given that no same-sex couple married elsewhere has successfully sued for marital rights in a Virginia court, nor can they under the already existing laws. Again, nothing changes in the legal status of gays in Virginia, other than a academic technicalities.
So if nothing changes for gays, what's the big deal? The problem with this amendment is that it's politically motivated. The idea is to rally conservative voters to the polls, thus ensuring Allen another term -- this is a perfectly acceptable political strategy, and there is nothing wrong with it per se. However, because its drafters were politically motivated, their legal writing was sloppy, rendering the amendment devastating for straight couples and heterosexuals in general.
First of all, it prevents employers from extending certain benefits to unmarried heterosexual couples (even engaged heterosexual couples). One would assume that this is the choice of the employer, not the state. Second, according to even Tim Kaine, who does not support same-sex marriage, the wording threatens "the constitutional rights of individuals to enter into private contracts."
These are two broad concerns with the vague wording. Specific concerns are innumerable. For example, the legal status of an adoption becomes unclear, perhaps even illegal. Most likely, the amendment will jeopardize the safety of unmarried domestic violence victims, who are currently afforded protections that assume or mimic a legal, marital relationship. The first of these protections to disappear will be protective orders. When one in three women are victims of domestic violence, the last amendment we should be voting in is one that robs these women of legal protection.
The best aspect of this amendment is that it will encourage more passionate people to vote. Let me assure conservatives that Virginia is not going to legalize same-sex marriage any time in the near future. And let me assure liberals that this amendment really does nothing to gays and lesbians in Virginia. One cannot change their status from illegal to "more illegal." They will simply be unrecognized by a different source of law. However, the amendment does hurt conservative and liberal interests in other areas. No one, conservative or liberal, supports domestic violence.
And no one wants to see Virginia spend tax payers' money to defend this broadly worded amendment from legal challenge, only to see it overturned by the Supreme Court for reasons unrelated to gay marriage. Were this to happen, passage of the amendment would become a victory for the gay community. If one opposes same-sex marriage, he should not support an amendment to ban gay marriage that carries significant likelihood of being overturned. If one is legitimately concerned with banning gay marriage on a constitutional level, he should support an amendment that is competently crafted and precisely worded. In that scenario, the debate would be simpler: Do we want our constitution to single out a group of individuals and bar them from rights (which is historically the opposite of what constitutions do), or should that be reserved for state laws (which don't have the sanctity of a constitution, and thus are more adept to making those kind of distinctions)?
But until then, this amendment represents neither conservative nor liberal values. In fact, the wording really supports no values; if anything, it protects domestic abusers and dictates to businesses what benefits they cannot give. Whether voting for Allen or Webb, we should together reject this amendment as un-American, un-Virginian and unworthy of our otherwise precious constitution.
Sina Kian's column appears Tuesdays in The Cavalier Daily. He can be reached at skian@cavalierdaily.com.
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