The Attorney General, Republican Bob McDonnell, has issued an opinion on the Marshall Newman amendment. As you would expect, the AG states concludes that “passage of the amendment will not affect the current legal rights of unmarried persons…”
Moments ago, Democratic Caucus Chair Brian Moran issued the following statement:
When the AG issues an opinion, he’s acting as a quasi-judge. No judicial opinion would be valid if the judge had voted for, campaigned for, and raised money for one side. It’s not surprising that he doesn’t think it’s a problem but it certainly doesn’t close the book on the issue. I’d rather take note of the opinion from Arnold & Porter, a respected DC law firm, or the former Republican Attorney General Wyatt Durette. Both said the amendment raises numerous issues and concerns. They didn’t have their answer before they were asked the question.
Yeah, what he said 😉
The opinion of Arnold & Porter can be found here and the attorneys and legal scholars who agree with the A&P opinion here.
VIVIAN J. PAIGE | All Politics is Local 
I’ve said it before… McDonnell broke the law. He should be held accountable.
This is the problem with Attorney Generals…who holds them accountable? Mark Earley refused to prosecute Pat Robertson over using his nonprofit status to make profits from gold mining in Africa even though Earley said the evidence was there…
Who’s going to hold Gonzalez our US Attorney General accountable for not prosecuting our current white house for their illegal actions?
Seems there needs to be a way to “recall” an Attorney General who isn’t doing his job.
Buzz…Buzz…
I’ve read the A&P legal memo. It says that the amendment may affect unmarried, heterosexual couples. But so what? Such couples choose to forego the rights and responsibilities of marriage. That is their choice.
The child visitation case the memo discusses was wrongly decided, without regard for the child’s psychological well-being as required by VA law. The Amendment would have no effect of such determinations of the child’s well-being.
The topic of wills and trusts is somewhat silly. Since one can write a will or trust naming a dog as the benficiary, naming one’s partner can hardly be contrued as approximating marriage any more than it approximates being a dog.
The section on employers giving benefits to domestic partners got really wierd, and spoke about domenstic partners who were federal tax dependents. (Wouldn’t that be incest?) It also questoned whether a state-sponsored hospital could refuse to accept insurance coverage of a domestic partner. That is silly. No hospital is going to refuse an insured patient — they need the money to pay for all the uninsured patients for whom they are forced to provide care.
(BTW, A&P apparently wrote the memo for VoteNoVA. It should be compared with others written for a pro-amendment group. I do not know whether any pro-amendment group has contracted for such a memo.)
Jack – I understand that you are in favor of the amendment. But I’m more inclined to believe an attorney over a lay person any day. Here’s the real truth: if the attorneys can’t agree on what this amendment means, then it is a bad amendment. If the attorneys cannot agree, the decision to interpret it will be left up to the judges, the very thing that the amendment supporters claim is the reason behind needing the amendment: to avoid so-called activist judges. This amendment will force the judges to be activists, because it is ambiguous.
Try to pick apart the A&P opinion all you want. It doesn’t change the argument.
Vivian sums up the point of this exercise perfectly, so I hesitate to join Jack in this irrelevant hairsplitting. But some of his commentary illustrates exactly why the amendment is difficult to understand.
Treating each discrete category of contracts (such as wills and trusts) as if they exist in a legal vacuum is exactly what McDonnell did in his opinion. In fact, it is the wording of the amendment that would allow a judge to interpret an individual contract such as a will or medical directive as being part of a combination of contracts that “intends” to “approximate” the legal status of marriage, and rule that it cannot be “recognized.” McDonnell has consistently sidestepped questions about how this intent would be determined when a contract is challenged because it is part of an aggregate of contracts and agreements that would parallel the rights granted by a legal domestic partnership.
I expect that he will continue to refuse to answer this question, because invalidating such contract rights for same sex couples is exactly the intent of the amendment. Otherwise, why have the additional language, and why remove the language that exempted contract rights?
Nice thread.
They can’t argue that there won’t be unknown legal repercussions. Someone missed their Constitutional Law 101 course. To busy having heterosexual sex before marriage, I presume.
oops, make that “too”.
I think that it is a damned shame that this state has reached the low point of allowing me to legally provide assets for the care for my cats after my death, but providing assets for my partner of thirty years could be in jeopardy because some judge might interpret it as trying “approximate” marriage. I bet that I’d have a whole team of lawyers working in my behalf if I decided to leave my assets to Pat Robertson, (That’d be a cold day in hell!) but could THAT possibly be interpreted as “approximating” marriage? This is BS!!!
Vivian:
The attourneys cannot argee on what the First Amendment means, either. Or the Second for that matter. Come to think of it, the fourth and fifth get bandied about pretty badly. The ninth and tenth have been completely beaten into unrecognizability. I guess they were just bad amendments.