Virginians go to the polls this fall to vote on Amendment 2, a change repealing the state constitution’s current dormant ban on same-sex marriage. A “no” vote is a vote for the truth of marriage and its connection to procreation as well as an affirmation of popular democracy against judicial imposition and straitjacketing the options of future legislatures.
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A “No” Vote on Virginia Amendment 2 Is a Vote for Marriage
Virginians go to the polls this fall to elect a U.S. senator, members of Congress, and vote on three state constitutional amendments. Amendment 1 declares abortion-on-demand throughout pregnancy to be a “fundamental right” the state cannot limit. Amendment 3 repeals limits on post-conviction voting by felons. Amendment 2, which has flown somewhat under the radar, is about “same-sex marriage.”
In 2006, Virginia voters changed the state constitution to define marriage as a union of one man and one woman. They approved that change by 57.1% of the vote. What subsequently became Article 1.15(A) of the state constitution defines marriage as a monogamous, sexually differentiated institution and bans the state from adopting alternative models to marriage, e.g., civil unions.
Virginia’s definition of marriage became unenforceable in 2015 when the U.S. Supreme Court’s Obergefell decision invented a “right” to “same-sex marriage.”
Advocates of Amendment 2 contend the 2006 changes to the state constitution are both vestigial and discriminatory. They are vestigial, they claim, because they are unenforceable: they are dead letters. They are discriminatory, they claim, because sexual differentiation has no inherent connection to marriage. Like race, sex is just an accidental feature not necessarily having anything to do with marriage.
Article 1.15(A) of the state constitution, as currently written, is not so much vestigial as dormant. Yes, it may be legally unenforceable, but that does not mean that it does not express what people understand marriage to be, even if the courts disagree. Constitutions begin, after all, with “we, the people,” not “we, the judges.”
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Abraham Lincoln saw this problem precisely as one of democratic legitimacy. Taking dead aim at the Supreme Court’s Dred Scott decision (the 1857 ruling that said blacks were not persons under the Constitution), Lincoln reminded Americans that if they simply fell into line, they would cease being their own rulers and surrender their government into the Court’s hands.
Marriage is not some esoteric thing. It has been part and parcel of the lives of most human beings for millennia. No western society before the 20th century ever considered sexual difference to be irrelevant to marriage. There is no parallel history to race as a factor in marriage outside of some Southern states with their histories of racism or Nazi Germany with its racial mythologies. To say then that sexual difference has nothing to do with marriage requires one to admit that most human beings have been grossly mistaken about what marriage entails (and does not entail) for most of human history – or at least until the Massachusetts Supreme Judicial Court enlightened them in 2003. If you believe that, I have some great bridges on sale today at discount prices, just for you…
Most societies have recognized marriage has some connection to procreation, which obviously presupposes sexual difference. That does not mean every marriage leads to children, but it does mean society has generally recognized marriage between a man and woman whose child is the enfleshed fruit of their bodies to be the locus in which children and families prosper. The effort since the Sexual Revolution of the 1960s to relocate childbearing and childrearing to other contexts — then out-of-wedlock, today often out-of-reproduction (surrogacy, artificial reproduction) has not left behind a history of unrivaled successes. In fact, these alternative venues for childrearing are almost uniformly bad for both women and children.
Advocates of Amendment 2 are trying to play the race card and guilt-by-association by invoking history: Virginia’s anti-miscegenation laws banned interracial marriage until the Supreme Court’s 1967 decision in Loving v. Virginia. But, as noted, race never was understood as so central to marriage as sex. Consider: Loving was decided by a unanimous Supreme Court, Obergefell by a very fractured 5-4 majority which, within four years, likely would have not have been handed down.
But Amendment 2 does not just repeal the 2006 changes to the state constitution. It explicitly writes the Obergefell doctrine into the constitution by banning the state from ever taking sex into account when defining marriage. So, even if Obergefell were overturned, Amendment 2 would cement the ruling into state law. If you think Obergefell was wrongly decided, leaving Article 1.15(A) alone expresses your view. Adopting Amendment 2 does not just repeal the old norm; it ensconces the new one. Why straitjacket future legislatures?
The truth is Amendment 2 encompasses a concept of marriage that many would regard as problematic. It is one that sees marriage and parenthood as having only some accidental, maybe serendipitous, connection. It sees marriage primarily as a personally defined interest of the parties and none of society’s business, even though the existence of society depends on marriage. This disconnect between marriage and procreation threatens western societies that have long fallen into demographic winters (America has been below fertility replacement levels since 2008). And it tries to cajole Virginians into falling in line behind a highly divided Supreme Court, in the hope that Americans would simply acquiesce in the redefinition of marriage which, more than a decade after Obergefell, looks like they’re having second thoughts.
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For all those reasons, I will vote “no” on Amendment 2.