BEYOND the races for United States Senate and House of Representatives, one issue looms larger than any other in this year's campaign season: the Marshall-Newman amendment, which seeks to prevent same-sex marriages and anything "approximating" that status. Many Virginians vociferously support the amendment as legal protection for the sanctity of marriage and an implicit vote against homosexuality. Others vehemently oppose it. One of the most controversial parts of the amendment is its clause refusing to recognize any approximation of the state of marriage. This seems draconian to many, who feel that it will compromise the abilities of all couples to pursue legal protection and benefits. The need for this clause -- and the amendment as a whole, however -- became clear last week with a New Jersey state Supreme Court ruling that states must allow same-sex couples to marry and be granted the same rights as heterosexual couples.
In New Jersey, in the case of Mark Lewis and Dennis Winslow, et al. v. Gwendolyn L. Harris, etc., et al., the state Supreme Court ruled in favor of seven homosexual couples, stating that they must be given the same rights as their heterosexual counterparts for a whole litany of reasons, ranging from equal protection under the law to a broad interpretation of the state constitution's meaning to an impromptu evaluation of society's changing values. While the New Jersey case maintains that the state need not allow these unions as "marriages," it mandates that they must be allowed to take place, either as sanctioned marriages or the civil equivalent. The problem with this decision (beyond its moral implications) is the removal of the decision about gay marriages from the hands of the people of a state.
In producing its ruling, the New Jersey court overturned statutes affirmed by the state legislature regarding marriage, as well as two lower court decisions. Essentially, the New Jersey Supreme Court ran roughshod over the will of the majority and took the law and constitution into its own hands. It also turned itself into a self-appointed barometer of public opinion, ruling in part based on its own perceptions of public opinion and changing times and attitudes rather than deferring to the elected representatives of the people to determine the direction of society.
The New Jersey case is an example of a court producing the equivalent of legislation, forcing its own opinions on a people who may or may not support them. In a very literal sense, since the decision was four to three, New Jersey's official attitude toward same-sex unions hinged on the personal and legal views of one person. Thus, barring a constitutional amendment banning gay marriages and same-sex unions, New Jersey legislators have only one choice: What do they call the court-mandated unions?
The Marshall-Newman amendment, while controversial, has at least stayed clear of this fracas turning to the people. The amendment takes the issue of gay marriage, as well as same-sex unions and does precisely the opposite of what New Jersey has done. Instead of removing gay marriage from the popular sphere and turning it over to seven individuals, the Marshall-Newman amendment gives it over to the entire state of Virginia and gives the populace the power to do with it as they will. The referendum nature of the amendment makes it a direct appeal to the people, even though it already passed both houses of the legislature. Instead of allowing one justice to determine the feelings of an entire state, the amendment allows a majority of Virginians to determine what is right in their own eyes.
The Marshall-Newman amendment also allows the people of Virginia to counter the type of ridiculous action taken by the New Jersey Supreme Court. That judicial body took it upon itself to act as a bellwether for cultural attitudes and social mores. Virginians have the chance to disprove that notion by demonstrating exactly what their social values are, how they want them enforced, and what they find permissible and what they find taboo. Thus, evaluation of society's beliefs falls to society itself, not to a removed body of seven justices.
Finally, by banning all same-sex unions, the Marshall-Newman amendment strikes out the entire debate that New Jersey has been struggling with. As a constitutional amendment, the Marshall-Newman amendment binds the court to the people's will. It protects against activist judges and makes sure that the will of the people is upheld. Rather than the turmoil and intra-state conflict New Jersey now faces, Virginia will have a defined stance in accordance with the ruling of its voters.
Robby Colby's column appears Thursdays in The Cavalier Daily. He can be reached at rcolby@cavalierdaily.com.
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