The Daily Press
By Hugh Lessig
September 15, 2006
RICHMOND - Attorney General Bob McDonnell ruled Thursday that a proposed constitutional ban on same-sex marriage wouldn't open a Pandora's box of trouble for unmarried couples, gay or straight, thus taking aim at critics who say the measure is dangerously vague.
In a 13-page legal opinion, McDonnell said the amendment, which is to appear on the Nov. 7 ballot, was limited in scope and would simply uphold the prohibition on same-sex marriage already in state code. It would not endanger wills, contracts or other legal arrangements.
The opinion doesn't carry the force of law, but a judge can use it to help settle disputes.
Although he personally supports the ban and voted for it as a member of the House of Delegates, McDonnell said that did not affect his analysis.
"My job as attorney general of Virginia," he said, "is to call balls and strikes."
He urged people to embrace the ruling and move on, but Gov. Timothy M. Kaine remained unconvinced.
The governor, speaking to reporters later Thursday, says the amendment rambles on about not creating a legal status for unmarried people "that intends to approximate the design, qualities, significance or effects of marriage."
Those words are open to interpretation, said Kaine. He does not support gay marriage, but will urge people to vote against the amendment.
"Those are such broad and vague terms that, once you get out of the first sentence, I don't know what this language means," he said.
Five legislators requested the legal opinion, asking McDonnell to examine the possible effects on legal rights involving contracts, wills, advance medical directives, financial issues and domestic violence laws.
In essence, McDonnell said those areas of law are separate from marriage.
"The general legal rights to enter into contracts, wills, advance medical directives, shared equity agreements and other legal instruments are not rights that arise from marriage," his opinion states. "Rather, such general rights find their sources in other statutes or common law. Thus, these rights would remain unaffected after enactment of the marriage amendment."
He offered a longer explanation when it came to domestic violence laws. That has become an issue in Ohio, which also has an anti-gay marriage measure on its ballot.
Critics fear that if the amendment passes, it would invalidate protection for unmarried couples under domestic violence laws.
Last week, a group of more than 100 lawyers endorsed a legal analysis from the Washington law firm of Arnold & Porter that called the amendment "exceedingly broad" and raised questions on several fronts, including domestic violence.
The analysis said Virginia courts could determine that laws protecting individuals in "marriage-like relationships" essentially recognize a legal status for unmarried individuals that approximates the effects of marriage, which conflicts with the amendment.
McDonnell disagrees for several reasons.
The General Assembly names spouses as a protected class, but also protects individuals who simply "cohabitate," he said.
Another area of disagreement is the potential for lawsuits.
"What we have here are dueling legal opinions," said Claire Guthrie Gastanaga, campaign manager for the Commonwealth Coalition, which is fighting the measure.
"We have reasoned lawyers on both sides who have reached 180-degree, diametrically opposed conclusions."
The attorney general dismissed those fears. When courts interpret the issue, a judge will have McDonnell's opinion as well as the official explanation from the General Assembly, which says the amendment will have limited scope.
Kaine remained skeptical. He said the potential for lawsuits - and the uncertainty that court fights could create - might hurt the state's ability to attract business or keep its college graduates. "It's something that I worry about," he said.
The governor did not say that McDonnell's support of a gay marriage ban taints his legal opinion. "I don't question that he's looked at this seriously and that he has a sincere belief about it," he said.
House Democratic Caucus Chairman Brian Moran of Alexandria took a firmer tone. "When the AG issues an opinion, he's acting as a quasi-judge," Moran said.
"No judicial opinion would be valid if the judge had voted for, campaigned for and raised money for one side," Moran said. "It's not surprising that he doesn't think it's a problem, but it certainly doesn't close the book on the issue."
A spokeswoman for Va4marriage.org, which supports the amendment, said the attorney general's opinion did close the book and called on opponents to specify how they wanted marriage to be defined.
"Where do they draw the line?" asked Victoria Cobb. "How do they say 'no' to other forms of marriage?"