Marriage Amendment: Attorney General Bob McDonnell Issues Official Opinion

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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 “approximate the design, qualities, significance, or effects of marriage” or create “the rights, benefits, obligations, qualities, or effects of marriage.” It further is my opinion that passage of the marriage amendment will not modify the application and enforcement of Virginia’s domestic violence laws.

The General Assembly’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 “intends to approximate the design, qualities, significance, or effects of marriage” or to which is assigned the “rights, benefits, obligations, qualities, or effects of marriage.” The application of the marriage amendment language to the specific documents and rights … demonstrates that passage of the marriage amendment will have no impact on such contractual and other statutory rights not created by or imitating marriage …. 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 … 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 “design, qualities, significance, or effects of marriage,” nor the “rights, benefits, obligations, qualities, or effects of marriage.” 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
… The Virginia Supreme Court has … clearly indicate(d) the motivations of the testator (the “‘justice of his prejudice’” and “‘the soundness of his reasoning’”) 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 “to approximate the design, qualities, significance, or effects of marriage” or assign the “rights, benefits, obligations, qualities, or effects of marriage.”

The General Assembly has established that “[a]ny persons may own real or personal property as joint tenants with or without a right of survivorship.” … The act of borrowing money and the right to hold and convey property are not regulated by statutes related to marriage … 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 …. 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 “to approximate the design, qualities, significance, or effects of marriage” or assign the “rights, benefits, obligations, qualities, or effects of marriage.” 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 “[a]ny person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor.” …. in determining the protections for unmarried domestic violence victims, cohabitation is the key element in the definition of “household member” in subsection “vi” of § 16.1 288 … while the institution of marriage provides an illustrative and objective standard by which “cohabitation” 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 “rights, benefits, obligations, qualities, or effects of marriage,” nor is it a recognition of a relationship “that intends to approximate the design, qualities, significance, or effects of marriage” …. 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 § 18.2 57.2.

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4 Comments

Jonathan said:

Joe,

This really isn't news. The AG is only talking about the current state of affiars, 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 at http://www.equalityloudoun.org/?p=372, 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 49th 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.

Ah, the Bronze Age, now those were the days....

Jack said:

Jonathan:

The narrowness of McDonnell's victory was due in large part to his opponents pro-gun stance, which took many votes from McDonnell.

I am a bit confused. In one paragraph you speak of a looming primary between Bolling and McDonnell, and in the next paragraph you speak of "party bosses who have to choose between McDonnell and Bolling." The people choose in a primary; the bosses choose in a caucus. You can't have both. In Virginia, anyone can vote in a primary. I even vote in the Democratic primaries when I can.

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.

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