Citizens of Virginia will be voting on three proposed constitutional amendments this year. This endorsement article considers only the second and third. An endorsement article addressing the first, which is especially important and deserves extra attention and analysis, is published separately.
There are two methods for amending the Constitution of Virginia described in Article XII. These come to us through the Section 1 method, which is most commonly used: The proposal is passed by both houses of the General Assembly, and then, after an intervening House of Delegates election, passed again, then presented to the voters in a referendum.
Question 2: Marriage
Should the Constitution of Virginia be amended to (i) remove the ban on same-sex marriage; (ii) affirm that two adults may marry regardless of sex, gender, or race; and (iii) require all legally valid marriages to be treated equally under the law?
In 2006, Virginians voted 57-43 to approve the constitutional amendment that became Section 15-A of the Virginia Bill of Rights. It stated that “only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions” and prohibited any legal status that “intends to approximate the design, qualities, significance, or effects of marriage” or “is assigned the rights, benefits, obligations, qualities, or effects of marriage.”
I endorsed voting “no” on that referendum because the clause prohibiting anything that “intends to approximate” marriage was (and is) dangerously vague; it could be used to invalidate mundane things like powers-of-attorney, hospital visitation agreements, and leases involving cohabitating couples. That’s not what the authors intended, but it is what they wrote, and textualism is the correct way to interpret laws. It has not been abused that way, and probably won’t be; that doesn’t make it good law.
Regardless, the U.S. Supreme Court ruled in 2015 that states must confer and recognize civil marriages between same-sex couples (Obergefell v. Hodges). That is the “law of the land” for now, and Virginia’s Section 15-A is an unenforceable “dead letter.” When this happens, and the decision is unlikely to be reversed soon, the voided text should be removed. This has nothing to do with the merits or demerits of a clause, or of the court decision that overruled it. It has everything to do with the basic principle that constitutions and laws should “say what they mean and mean what they say.” Inactive text is confusing, pointless clutter.
For these reasons, I would support a “clean bill” to remove Section 15-A . . . but the proposed amendment before us is not clean. It would replace the section with a new version stating that “marriage is one of the vital personal rights essential to the orderly pursuit of happiness,” and prohibiting the state and its localities from denying a marriage license or refusing to recognize a marriage conferred in another state on the basis of “sex, gender, or race.” This new text has at least three serious flaws.
First, marriage is an immutable natural-law institution. Government did not create it and has no legitimate authority to control or change it, so it doesn’t really belong in the state constitution at all . . . or in Supreme Court rulings, for that matter. But our only options are to keep the current version that violates court precedent, or adopt the new one that violates natural law. As long as those authorities are in conflict, the state ought to say nothing, because the state lacks the power to overrule either. But natural law is the higher authority, so the proposed new text would be a bigger violation than the old.
Second, the assertion that marriage is a “personal right” is just . . . wrong. Marriage has a public aspect, which is why most wedding traditions require public ceremonies and witnesses. If we put that aside, it is still a union between two people, which would make it an “interpersonal right.” And if we put that aside too, the proposed text is self-contradictory—the “personal right” of the first clause would not require the licensure and recognition of the second. Privileges may require licenses; rights don’t.
Finally, no matter what you think about those flaws, the fact is that the new version would have as little legal effect as the old. This amendment does nothing. Other states’ marriage licenses are recognized under the U.S. Constitution’s “Full Faith and Credit” clause (Article 4, Section 1), racial discrimination in marriage licenses is prohibited under the U.S. Constitution’s Fourteenth Amendment and the Supreme Court’s 1967 ruling in Loving v. Virginia, and consideration of sex (and, by extension, “gender”) is prohibited by the Supreme Court’s 2015 ruling in Obergefell v. Hodges.
We should not replace one badly-written part of our state constitution with another. We should not replace a clause that got overruled by the Supreme Court with one that is overruled by natural law. And we should not clutter the state constitution with clauses that don’t mean anything and don’t do anything anyway.
Vote NO on Question 2.
Question 3: Voting Rights
Should the Constitution of Virginia be amended (i) to provide for the fundamental right to vote in the Commonwealth, (ii) to revise the qualifications of voters so that a person convicted of a felony is not entitled to vote during his period of incarceration but is automatically invested with the right to vote upon release from incarceration, and (iii) to update the existing prohibition on voting by persons found to be mentally incompetent to instead apply to persons who have been found to lack the capacity to understand the act of voting?
Article II, Section 1, of the Constitution of Virginia establishes the qualifications for voting in the state’s elections: The voter must be a citizen of the United States, at least eighteen years old, meet the residency requirements of the section, and register to vote as described in the section. It then describes two exceptions: “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority,” and, “no person adjudicated to be mentally incompetent shall be qualified to vote until his competency has been reestablished.”
In addition to breaking the section into clearer subsections, the proposed amendment would:
- add a new clause stating that, “Every person who meets these qualifications shall have the fundamental right to vote in the Commonwealth, and such right shall not be abridged by law [except as described in this section],”
- eliminate the felon exception except during incarceration and restore “all political rights, including the right to vote,” after release, and
- drastically narrow the mental incompetence exception to apply only to people “adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting.”
The fundamental human rights are life, liberty, and property, along with associated rights to self-defense and self-government. These are the “unalienable rights” we are endowed with at our creation. A separate and lesser class of rights are the civil rights, which are conferred by governments according to clearly-established, unbiased rules.
The right to vote is a civil right, not a human right. It is connected with the rights of liberty and self-government, but is not, in-and-of itself, “fundamental.” That is why citizens of all nations have the freedom of speech (whether or not their governments respect it), but only citizens of the Commonwealth of Virginia have the right to vote in a Virginia state election. The proposed amendment’s authors don’t seem to understand what rights are, how they are classed, or where they come from. It’s almost comical; it says the right to vote is “fundamental,” but only for people who meet certain “qualifications.” So is it fundamental or qualified? It can’t be both.
States and nations may define their own criteria for citizenship and voting, so long as those criteria do not violate the fundamental human rights. The temporary or permanent suspension of the right to vote as punishment for a crime is no more severe than the temporary or permanent suspension of a criminal’s personal autonomy (imprisonment or probation), financial autonomy (fines), self-defense rights (firearm ownership), or anything else. Anyone who wishes to avoid these consequences can just avoid committing felony crimes.
Regardless, Virginia’s existing system is flawed; permanent disenfranchisement unless “restored by the Governor or other appropriate authority” doesn’t make much sense. A better approach would be to restore voting rights automatically after a set period of time, or just make this part of the sentencing process and leave it to judges and juries to decide how long to suspend voting rights for a given felon upon conviction. But this amendment would completely eliminate post-incarceration disenfranchisement as an aspect of felony punishment. That goes too far in the opposite direction.
The last part of the proposal is even worse. It is eminently reasonable that people “adjudicated to be mentally incompetent” cannot vote; they also cannot stand trial, serve on juries, enter into contracts, obtain driver’s licenses, own firearms, and more. If someone is incapable of making important legal decisions for themselves, they are incapable of voting. If we drastically loosen those limits, as proposed here, it would only create new channels for easy voter fraud . . . which seems to be the point.
Unscrupulous Democrats in the General Assembly see an opportunity to make political gains by taking advantage of vulnerable people. That’s “on brand” for the party these days, but that doesn’t make it any less despicable.
Vote NO on Question 3.