Keeping Doubts Alive

There isn't much to fruitfully argue in Walter Olson's latest post regarding Virginia's recently passed amendment to its Affirmation of Marriage Act. Olson presents his post as a response to Ramesh Ponnuru's explanation, which is similar to my own. Ponnuru and I have argued what the law ought to be construed to mean; Olson is arguing what it could (and shouldn't) be construed to mean. Inasmuch as even some of the articles that Olson cites present the central points that I would make, to argue along the "what will it do" line would be to continue a repetitive dance.

The amendment is now law, and until judges begin taking the cases that will eventually illustrate what it does and does not cover, restating ambiguities over and over would seem to lend credence to bill-sponsor Delegate Robert Marshall's suggestion that the intention is "to sow doubt about the statute."

However, the following from Olson oughtn't go without comment:

So, again: which private arrangements are void? Ponnuru's answer is agreeably circular: he thinks the law will ban only those arrangements which purport to convey incidents of marriage which cannot be conveyed by contract. In other words, it will ban only those arrangements that are already void.

That bit about Ponnuru's conclusion being "agreeably circular" seems, if Olson has paid half as much attention to the debate as I believe he has, disagreeably oblique. As we're discovering in Rhode Island, and as has been suggested here and there across the country, with states' creation of civil unions and legitimization of same-sex marriage, the explicit declaration of "public policy" in other states is pivotal in preventing importation of those arrangements. And indeed, the version of the amendment that passed the Virginia House uses the language "declares as existing policy."

Understandably, those who support SSM will object to any barriers' being built into state laws, but to imply that the barriers' redundancy indicates ulterior intentions is a bit much. On one hand, SSM advocates wish to push redefinition through the courts on the grounds that marriage isn't defined, and on the other, apparently, some of them object that legislating definition is so unnecessary as to prove expanding bigotry. For their part, those who oppose the judicial imposition of SSM believe any such laws would be redundant.

Although I'd suggest that all of the various imputations of motive muddy waters in need of clarification, the effort spent pushing laws and arguments to their most extreme interpretations is much more extensive among those who wish to do away with them. Consider Olson's "curious postscript":

Marshall (whose private views, of course, do not determine how courts will rule in interpreting the law) disagrees with the idea that durable power of attorney, medical directives or wills might come into question, but "said the Virginia law is intended to ban child custody and guardianship agreements between same-sex partners". ... The mention of guardianships is interesting since the designation of guardians has long been untethered to the "privileges or obligations of marriage" -- parents can and routinely do select sisters, cousins and completely unrelated friends of the family to step in as guardians for their children in the event of their demise. It appears that Marshall -- contra Ponnuru's thesis -- hopes the law will empower courts to undo private legal arrangements which are routinely upheld as valid when carried on between other unrelated persons on the grounds that they arise from a same-sex relationship.

Olson goes on to warn of a legal guardian from another state having her long-deceased partner's child snatched by the Virginia bureaucracy while on vacation within its jurisdiction. Such an event would be a travesty, indeed. However, posing the scenario on the basis of an unsympathetic reporter's paraphrase of Delegate Marshall's legally irrelevant statement on the matter would seem to discard Olson's previous emphasis on "plausibility."

In response, I'm tempted to ponder the likelihood that a federal judge will take the opportunity created by such extreme hypotheticals to strike down the Virginia statute in a ruling that's sufficiently broad to invalidate even more temperate state laws. Whether that happens, we'll just have to wait and see, but I'm not optimistic that supporters of SSM will apply their apparent aversion to surplus breadth in legal language to the ruling if it does.