My dad once told me that, when buying a car, check three boxes: (1) Do you need the car? (2) Is the car too expensive? (3) Does the car work?
This paternal wisdom is generally applicable not just to cars, but to all sorts of things–like the Virginia Marriage Amendment. The Arnold and Porter memo that David linked to yesterday demonstrated that the vaguely worded amendment is destined to generate a great deal of costly litigation and may possibly surprise voters by curtailing contract and property rights of unmarried gay and straight couples. As such, it’s a bit like an overpriced, poorly maintained 1966 Mustang–overly expensive, liable to break down, with a not-insignificant-risk it will explode on impact.
Here’s one more reason to oppose it, even if you are a committed foe of gay marriage: There’s absolutely no need for it. Opponents of gay marriage suggest the amendment is needed to defend against “out-of-control” state judges, who might impose gay marriage on the Virginia electorate from the bench, like the Massachusetts Supreme Judicial Court did (so the standard conservative story goes) in Goodridge v. Department of Public Health.
Yet, there’s virtually no risk that will happen in Virginia. One, Virginia judges are elected by the reliably conservative state General Assembly, guaranteeing they will not stray very far from current enactable preferences of Virginia’s staunchly red-state voters. Two, the Virginia Supreme Court has consistently interpreted the Virginia Constitution’s narrowly worded anti-discrimination provisions (I say narrowly, because the Virginia constitution does not include a general equal protection clause at all. See Boyd v. Bulala, 647 F. Supp. 781, 786 (W.D. Va. 1986) (“The Virginia Equal Protection Clause contains no equal protection clause as such”)) to provide “no more” protection than has been recognized by the U.S. Supreme Court under the U.S. Constitution’s Equal Protection Clause. Wilkins v. West, 264 Va. 447, 467 (2002); Archer v. Mayes, 213 Va. 633, 638 (1973).
In this, Virginia’s constitutional precedents differ markedly from those of Massachusetts, where, prior to Goodridge, courts had long recognized that the broadly worded Massachusetts Constitution provides more protection for individual liberty than the federal Constitution. That means that if gay marriage is ever recognized in Virginia, it will be the U.S. Supreme Court and federal constitutional law that drive its recognition. Under the Supremacy Clause, no state constitutional amendment can defend against that.
As a result, the Virginia Marriage Amendment can’t plausibly be justified as a defensive amendment. To put it in my dad’s terms: its too expensive, it’s at risk of breaking down, and there’s no conceivable need for it. A lemon all around.