Marriage Amendment: Attorney General Bob McDonnell Issues Official Opinion
Virginia Attorney General Bob McDonnell has just issued his official opinion on the Virginia Marriage Amendment, which will be on the ballot for Virginia voters on November 7.
You can read the complete opinion at the AG's Web site.
Following are key excerpts:
It is my opinion that passage of the marriage amendment will not affect the current legal rights of unmarried persons involving contracts, wills, advance medical directives, shared equity agreements, or group accident and sickness insurance policies, or alter any other rights that do not â€œapproximate the design, qualities, significance, or effects of marriageâ€ or create â€œthe rights, benefits, obligations, qualities, or effects of marriage.â€ It further is my opinion that passage of the marriage amendment will not modify the application and enforcement of Virginiaâ€™s domestic violence laws.
The General Assemblyâ€™s clear and express intent in passing the marriage amendment, as annunciated in its official explanation, is to preserve traditional marriage as solely between one man and one woman, while not infringing upon the current legal rights of unmarried individuals to execute contracts, wills, advance medical directives, or shared equity agreements, or lessening protections under domestic violence laws.
In considering the prospective application of the marriage amendment to contracts, wills, advance medical directives, shared equity agreements, accident and sickness insurance policies, and other ordinary legal rights of Virginia citizens, the dispositive analysis is to determine whether the rights in question are derived from a legal relationship that â€œintends to approximate the design, qualities, significance, or effects of marriageâ€ or to which is assigned the â€œrights, benefits, obligations, qualities, or effects of marriage.â€ The application of the marriage amendment language to the specific documents and rights â€¦ demonstrates that passage of the marriage amendment will have no impact on such contractual and other statutory rights not created by or imitating marriage â€¦. Any Virginian, subject to any other existing legal limitations, may enter into any lawful contract, dispose of property to any person of his choosing by will or deed, or appoint any person to act on his behalf pursuant to a power of attorney or advance medical directive.
The basic elements of a contract are offer, acceptance, and consideration. Unless a contract is void for a specific policy reason under existing law, any competent individual may enter into a contract, regardless of his marital status â€¦ the right to contract, pursuant to well-established and long-standing principles of contract law, is not a right that finds its origin in the â€œdesign, qualities, significance, or effects of marriage,â€ nor the â€œrights, benefits, obligations, qualities, or effects of marriage.â€ Passage of the marriage amendment would not, therefore, infringe upon the rights of unmarried individuals to enter into or enforce lawful contracts.
It is an accepted principle of Virginia law that a testator may, by will, dispose of his property as he desires â€¦ The Virginia Supreme Court has â€¦ clearly indicate(d) the motivations of the testator (the â€œâ€˜justice of his prejudiceâ€™â€ and â€œâ€˜the soundness of his reasoningâ€™â€) have no effect on the disposition of his estate.
The Health Care Decisions Act does not require that the agent be related to the declarant by blood or marriage. Further, the process of making an advance directive and naming an agent to carry out the instructions of the declarant are acts established by the General Assembly apart from the marriage statutes and are not acts that intend â€œto approximate the design, qualities, significance, or effects of marriageâ€ or assign the â€œrights, benefits, obligations, qualities, or effects of marriage.â€
The General Assembly has established that â€œ[a]ny persons may own real or personal property as joint tenants with or without a right of survivorship.â€ â€¦ The act of borrowing money and the right to hold and convey property are not regulated by statutes related to marriage â€¦ Persons of the same sex or any unmarried persons can hold and transfer real estate and borrow money against real property under current law and may continue to do so should the marriage amendment be adopted â€¦. The acts of maintaining an account with another person, entering into an agreement with a bank, making demands on the account, and naming a beneficiary are not related to marriage and are not relationships that intend â€œto approximate the design, qualities, significance, or effects of marriageâ€ or assign the â€œrights, benefits, obligations, qualities, or effects of marriage.â€ Group accident and sickness insurance coverage provided by private companies to its employees and their designated beneficiaries likewise will not be invalidated by the marriage amendment.
The General Assembly has the authority to create and define by statute a class of potential victims for which enhanced punishment for assault and battery will be available. Section 18.2 57.2(A) provides that â€œ[a]ny person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.â€ â€¦. in determining the protections for unmarried domestic violence victims, cohabitation is the key element in the definition of â€œhousehold memberâ€ in subsection â€œviâ€ of Â§ 16.1 288 â€¦ while the institution of marriage provides an illustrative and objective standard by which â€œcohabitationâ€ may be identified by a trier of fact, the use of marriage as a comparative standard does not confer upon the cohabiting relationship any of the â€œrights, benefits, obligations, qualities, or effects of marriage,â€ nor is it a recognition of a relationship â€œthat intends to approximate the design, qualities, significance, or effects of marriageâ€ â€¦. Passage of the amendment, therefore, would not prevent prosecution of an individual cohabitating in a same sex or other unmarried relationship for assault and battery of the other individual pursuant to Â§ 18.2 57.2.
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