Jun 02, 2006  |  By: ELIZABETH PERRY  | COMMENTS     

Some legal experts are questioning the constitutionality of Virginia’s proposed constitutional amendment banning gay marriage, claiming the amendment is worded to broadly that it may conflict with the U.S. Supreme Court’s landmark decision a decade ago striking down Colorado’s Amendment 2.

The Colorado amendment barred state and local governments from passing legislation or adopting policies that would prohibit discrimination against gays. The amendment passed by a small margin in 1992.

Lambda Legal Defense & Education Fund and the American Civil Liberties Union joined forces in a lawsuit that blocked the amendment from taking effect. The U.S. Supreme Court eventually struck it down in 1995 in a 6-3 ruling that was the first gay rights victory ever on the high court.

Suzanne Goldberg, incoming director of Columbia Law School Sexuality & Gender Law Clinic and a lesbian, was co-counsel for Lambda Legal in Romer vs. Evans. She said the Colorado and Virginia amendments both use one measure to sweep a number of rights off the table.

She said the aim of the Colorado amendment was to block anti-discrimination legislation for gay people at all levels of government. In Virginia, the aim is to block any form of recognition of same-sex relationships.

“The amendment violates a rule most states have that limits referenda to a single subject,” she said. “This measure, like Colorado’s anti-gay amendment, leaps broadly across many rights and in doing so violates the Constitution’s equality guarantee. In Colorado, voters attempted to wipe anti-discrimination protections for gay people off the law books. In Virginia they are trying to do the same in family law in the area of relationship recognition.”

Evan Wolfson, executive director of Freedom to Marry, said he too believes the amendment in Virginia is unconstitutional, but said the issues will not be resolved overnight.

“This amendment clearly violates the Romer principles as well as constitutional guarantees of equal protection and the right to marry,” he said. “We have to give the courts the right climate of receptivity so when the right case comes to court they are ready to do the right thing.”

Jamie Raskin, a law professor at American University and Democratic candidate for the Maryland state Senate, also agreed the Virginia amendment runs afoul of the U.S. Constitution.

“It’s not plausible to say that a state can deny gay people the possibility of having the same rights and benefits as straight people,” said Raskin, who is straight. “Romer vs. Evans describes that kind of discrimination as a direct assault on equal protection. The key to the Colorado case is that the government can legislate prejudice. There is no justification for the Virginia Marriage Amendment outside of moral judgment and hostility directed at gay people.”

Gay rights advocates in Virginia have emphasized that the amendment may impact straight couples as well as gays.

“This fight is about more than just some legal issues or speculation on the outcomes of possible constitutional challenges,” said Claire Guthrie Gastanaga, campaign manager of Virginia’s Commonwealth Coalition, a broad-based coalition opposed to the amendment.

“It is about real people and real families whose lives will be cast into the rocky seas of financial and legal insecurity, and the more than 60,000 unmarried domestic violence victims whose lives will depend on whether they will still be able to get protective orders,” she said.

Gastanaga predicts proponents of the amendment will use it to challenge employee domestic partner benefits, as well as state laws that enable insurance companies to offer domestic partner coverage to private employers.

‘Scare tactics’ decried

On the other side of the amendment fight, conservative activists are crisscrossing the state, visiting African-American churches and promoting a new website dedicated to the marriage issue. The site, www.va4marriage.org, offers information and bumper stickers for supporters of the amendment. It solicits donations and requests prayers for a successful fight.

“This campaign is the largest undertaking that our organization has done in its 20-year history,” Victoria Cobb, executive director of the Family Foundation, told the Roanoke Times last month. “Our goal is to have folks take ownership in their area.”

Cobb did not return Blade calls seeking comment.

Proponents of the amendment, including the Valley Family Forum, say those opposed to the measure are trying to scare voters.

“Opponents of the amendment have mounted a deceptive campaign directed at members of the Virginia Senate in hopes of altering or even defeating the amendment,” Valley Family Forum organizers said on the group’s website.

“They charge, falsely, that the amendment would deny such things as hospital visitation rights and wills, and that it would also remove ...