Equality Loudoun Member's Response to AG Opinion

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Jonathan of Equality Loudoun submits the following response to the Attorney General's opinion in the previous post:

This really isn't news. The AG is only talking about the current state of affairs, not the effects that the amendment will have in the face of court challenges by anti-gay activists and puritanical Victorian social engineers. For example, as David pointed out, CCV, the parallel organization to VA's "some" families foundation filed an amicus brief that challenged the notion of domestic violence protection for an unmarried household member, as that legal status "assigns" a benefit of marriage.

The AG also failed to describe that VA is the 2nd most anti-gay state in the nation thanks to the elected officials who crafted the heinous anti-gay language of this amendment, and that passage of the amendment constitutionalizes what at present is merely statutory discrimination.

He also didn't mention that all gay-rights legislative victories will now be subject to challenge.

His line of thinking parallels the legal work of the Family Research Council which supports the notion of reciprocal beneficiaries and uses that legal construct to mask their anti-gay ideology.

Remember that one of the AGs first opinions threw out Governor Kaine's executive order that protected state employees from sexual orientation discrimination. No gay family photos on the desk - having a significant other is an "effect of marriage".

The AG knows who brought him into office (on a very slim margin I might add) and he knows that he will have a very tough primary race against Bill Bolling. Both candidates need to thump their chests to prove their allegiance to fundamentalist "Christian" principals and to party-line puppet masters in Colorado Springs and Virginia Beach.

You've got to pity the bronze-age party bosses who have to choose between McDonnell and Bolling. They've got a tough choice to make. It will be fun to watch the wrestling match between these two Jacobs/Gods.

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If VA is the 49th most anti-gay state, doesn't that make this a better place to live for gays than all but one state? (I'm guessing that state would be Hawaii, right.)

Did you mean we are the 2nd most anti-gay state, or 49th most pro-gay?

Let me know and I'll make the edit.

Although I have to believe there are many worse places to be gay than VA. In some counties in the South I think you still have to wear blue hats AND the job market sucks.

Jonathan said:

Thanks for noticing my mistake and yes, pleas make the correction.

Joe, yes Virginia ranks 49th in pro-gay legislation. Please change from "49th" to "2nd".

My comment here was merely a comment, not an EqualityLoudoun position. An EqualityLoudoun position may or may not be posted on our blog.

Thanks for letting me guest blog on NOvaTownHall. Next time, let me know ahead of time and I won't hurry and produce errors. What's my next assignment boss?

jacob said:

A simple question? You say:
"He also didn't mention that all gay-rights legislative victories will now be subject to challenge."

I thought most of the yeomans work done on behave of the GLBT was done in the courts. Which legislation are you alluding to?


Married Man said:

This is a very well written opinion. In the opinion McDonnell points to the true legal implications of the amendment.

As you said, this isn’t really news. The opinion is mainstream. Even Creigh Deeds and Don McEachin support his amendment… also remember that it has broad bi-partisan support.

The AG is doing his job and doing it well. He is simply calling the law as is… not as it should be or what anyone wants it to be. He answers the questions out there. Consequently, the opponents of the amendment should be honest and debate the amendment. The big question is “what form should marriage take in Virginia.” That’s what the amendment is all about.

David said:


As the president of Equality Loudoun, it is up to me to publish a response to the AG opinion from Equality Loudoun, if there is one. This appears to be a reposting of a comment that Jonathan made on this blog.

Please make the appropriate change to the title of the post - thanks.

David said:

As a general rule, when there is broad disagreement over how legislative language will be interpreted, that means it's poorly written.

The AG has given his opinion on the amendment, and other lawyers, former AGs, and legal scholars have given a conflicting opinion.

Without even needing to get into the issue of which opinion is correct, it's clear that the amendment is a bad idea.

Again, this is David, posting a comment. Not to be confused with "Equality Loudoun's response." You'll have to wait a little longer for that.

Sorry, I did not know who was president and only included the org name to give credit to the "other side." Sort of a warm, fuzzy 'amnesty day' type gesture.

I've added the word member which is what it should have said.

Erin said:

20 states have passed amendments, 12 are very similar to the wording used in VA’s. Alabama, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Nebraska, North Dakota, Ohio, Oklahoma, Texas, and Utah are all similar to the Virginia amendment.

Jack said:


Considering how the U.S. Constitution has been brutalized by our "legal scholars," that must be a very poorly written domument indeed. Or perhaps it's just that such scholars cannot understand difficult legal terms such as "right," "people," "shall not be infringed," "regulate," "freedom of speech," "reserved to the States," etc.

Jonathan said:

Jack (legal "scholar"??),

Your 4:51 comment is intriguing. I'd like to hear how the constitution has been "brutalized" and why this amendment does not brutalize it. If you find time, please elaborate in a full-fledged post.


I believe the third sentence of the VA amendment is unique.

Jack said:

I was speaking of the U.S. Constitution. This Amendment is to the VA Constitution.

Well, let's see. Liberal scholars have argued that "the people" in the Second Amendment (and only there, nowhere else) does not refer to us, but the States and the State Militias.

The lastest Campaign Finance Law is a clear violation of our freedom of speech.

I wish I could find it, but during the Clinton Administration, some Democrat congressman (I wish I knew who -- I'd like to shake his hand) proposed an amendment to the Republicans' Omnibus Crime Bill that was, word-for-word, the Fourth Amendment. The Republicans screamed and shouted that the proposed amendment would completely gut the bill, and it was defeated. In my not very humble opinion, every one of those congresscritters should be ousted.

When Clinton was impeached, many Senators refused to convict, saying that the offense did not rise to the level of impeachment. But that's not their job!! The Senate's job is only to determine guilt or innocence. The House of Representatives determines whether the offence is worthy of impeachemnt, not the Senate.

The power to "regulate... commerce among the Several States" has been taken to mean power over everything that may have any impact whatsoever on interstate commerce.

The Tenth Amendment is barely recognizable. Schools are not mentioned in the U.S. Constitution, so they are a State function. The Violence Against Women Act is clearly out of bounds for the feral government, as are Welfare, Social Security, Medicaid, and Medicare.

The people of D.C., "The Capitol of the Free World," are not allowed to have guns to protect themselves.

I could go on, if you like.

Jonathan said:

The Equality Loudoun post is here.



David said:

Thanks for making the change, Joe.

Now, if you actually would like Equality Loudoun to "guest blog," feel free to crosspost.

jthompson said:

"As a general rule, when there is broad disagreement over how legislative language will be interpreted, that means it's poorly written."

Please cite support for this general rule.

We are going to have litigation on gay marriage, with or without the amendment. The fact that gay marriage proponents dispute the language of the amendment is not particulary compelling.

Jonathan said:

"Please cite support for this general rule."

It's an expectation. We don't want to spend our tax dollars on legislators who write unclear laws. We expect our elected officials to be professionals. If there is apriori knowledge that the language is ambiguous, it is poorly written.

jthompson said:

"We don't want to spend our tax dollars on legislators who write unclear laws"

Says who?

I'm not deliberately being obtuse here, but there are debates and lawsuits every day about what legislation means. Check out campaign finance reform, the Dubai ports debacle, debate about interrogation techniques in the GWOT, etc.

The fact that you can find a minority of people who say that a given piece of legislation means something different than the attorney general, Creigh Deeds and Don McEachin does not mean that the legislation is poorly written. It just means that minority of people doesn't like the legislation.

David said:

But we're not talking about what people on the street say. We're talking about qualified legal scholars who come to very different conclusions about what the proposed amendment language means. That, by definition, means that the language is ambiguous. It is also untested. The language that will be on the ballot in Virginia is unprecedented in the amendments that have been proposed in any other state.

Actually, it was AG McDonnell himself who stated at the Townhall meeting hosted by this group that "it is the responsibility of the legislature to provide the courts with clear, unambiguous language in the legislation that they draft," or something very close to that.

The fact that legal scholars have such disparate interpretations of the amendment languauge means that the legislature failed miserably in this case to do that.

Jack said:


See my above post about the U.S. Constitution, and how that is misinterpreted, often intentionally. The ability of lawyers to twist words will never be beaten by those who write the words.

David said:

Jack, I think you've just made an excellent case for the value of clear and unambiguous language - language that isn't vulnerable to being twisted. The proposed amendment language is an invitation to such mischief, which is exactly what our objections have been all along. It seems almost to be designed for that purpose.

Jack said:


My point was that any language can be, and will be, twisted.

David said:

And the logical conclusion of your point is that, therefore, it doesn't matter if legislatures produce garbage. That is not a compelling argument.

jthompson said:

No, the "logical conclusion" is that merely because three attorneys say that the legislation is ambiguous does not mean that it is.

Jonathan said:

It's up to 125 lawyers now, but ya know, "facts are stupid things." (Ronald Reagan)

See: http://www.votenova.org/legalreview#vlrc_list

Jack said:

My conclusion is that, no matter how well worded a piece of legislation is, it will be distorted by those who have something to gain by soing so.

If you think the VA Marriage Amendment could be better worded, prove it. Reword the Amendment so that it cannot be misinterpreted.

Jack said:


Being "Concerned About the Legal Consequences" means only that they do not like it.

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