The Marshall-Newman Amendment, also referred to as the Virginia Marriage Amendment, is an amendment to the Constitution of Virginia that defines marriage as solely between one man and one woman and bans recognition of any legal status "approximat the design, qualities, significance, or effects of marriage". The amendment was ratified by 57% of the voters on November 7, 2006. It became part of the state Constitution as Section 15-A of Article 1. In 2014, the amendment was ruled unconstitutional in Bostic v. Schaefer.
Text
The text of the amendment states:
Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. 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.
Enactment
Legislative process
The Virginia Constitution requires amendments to be passed in two different sessions separated by a general election. The amendment, named after Delegate Bob Marshall and Senator Stephen Newman, was approved by the Virginia General Assembly in the 2005 and 2006 sessions, which were separated by the November 2005 general election. It was thus put on the November 2006 election ballot for approval by voters.
Voting results
Criticism
The far-reaching nature of the Marshall-Newman Amendment intended to reinforce its Marriage Affirmation Act has attracted criticism. Writing in The Washington Post, Jonathan Rauch argued that:
Virginia appears to abridge gay individuals' right to enter into private contracts with each other. On its face, the law could interfere with wills, medical directives, powers of attorney, child custody and property arrangements, even perhaps joint bank accounts. If a gay Californian was hit by a bus in Arlington, her medical power of attorney might be worthless there.
Virginia Attorney GeneralBob McDonnell issued a 2006 opinion stating that the amendment does not change the legal status of documents such as contracts, wills, or advance health care directives between unmarried people.
Ruling of unconstitutionality
On February 13, 2014, U.S. District Judge Arenda L. Wright Allen ruled that the amendment was unconstitutional, and ordered Virginia not to enforce it against same-sex couples. In her opinion, Judge Allen granted a stay pending appeal. Judge Wright Allen confused the Declaration of Independence for the US Constitution when stating on the first page of her opinion: "Our Constitution declares that 'all men' are created equal. Surely this means all of us." After considerable comment on this was made by several judicial observers, including South Texas College of Law professor Josh Blackman, Judge Wright Allen issued a second draft stating: "Our Declaration of Independence recognizes that 'all men' are created equal." On February 13, 2014, a U.S. District Court in Norfolk ruled that the amendment was unconstitutional in the case Bostic v. Schaefer, though the Judge stayed her ruling pending appeal. On July 28, 2014, the Fourth Circuit Court of Appeals issued a 2–1 opinion upholding the lower court's decision, although this was also appealed. On October 6, 2014, the Supreme Court of the United States denied a writ of certiorari and thus let the Fourth Circuit Court's decision stand, which legalized same-sex marriage in Virginia. Since the Supreme Court's decision in Obergefell v. Hodges on June 26, 2015, all such bans throughout the United States are unconstitutional.
Repeal attempts
Although the amendment is unconstitutional and unenforceable since 2014, it remains part of the Virginia Constitution. Legislators, including State SenatorAdam Ebbin and Delegate Mark Sickles, have introduced bills in 2015 and 2016 aiming to repeal the amendment.
