It’s Not about Same‐​Sex Marriage

The lead headline in the Washington Post on Tuesday reads "53% of Voters Say They Back Va. Same-Sex Marriage Ban." Slate's "Today's Papers," reporting on that story, says it shows that "Virginia voters [are] supporting a ban on gay marriage." Washington's public-radio WAMU refers to the upcoming vote as "the proposed ban on gay marriage."

All these journalists are doing the supporters' work for them. Bans on gay marriage have passed everywhere they've been placed on the ballot. That's what the supporters of the Virginia amendment want voters to think they're voting on. But that's not what the Virginia amendment really does.

Same-sex marriage is already prohibited in Virginia, and there's no prospect of legislative or judicial change in that fact. So this amendment is touted as banning something that is already banned.

The real impact of the amendment can be seen in its second sentence:

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. [emphasis added]

It's not just about same-sex couples, and it's not just about marriage. The law firm of Arnold & Porter analyzed [pdf] the amendment and concluded:

the [proposed Virginia] Amendment could be interpreted by Virginia courts to have the following effects:

• Invalidate rights and protections currently provided to unmarried couples under Virginia's domestic violence laws;
• Undermine private employers' efforts to attract top employees to Virginia by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits; and
• Prevent the courts from enforcing --

-- private agreements between unmarried couples,
-- child custody and visitation rights, and
-- end-of-life arrangements, such as wills, trusts and advance medical directives, executed by unmarried couples.

The firm went on to say: "This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state."

Journalists should not call this "the proposed amendment to ban same-sex marriage." Rather, they should give readers and listeners a more accurate summary, along the lines of "the proposed amendment to restrict gay rights" or "the amendment on unmarried couples."