As a Virginian and an attorney, I am alarmed by the violence you have done to the integrity of the legal profession and to the institution of marriage by pitting the authority of your office directly against Virginia’s Constitution.
As your office’s website explains, it is your duty to serve as “the Commonwealth’s law firm.” Every attorney has a duty to zealously advocate his client’s position in court, and while there are limited circumstances in which he may be permitted to withdraw from representation, it would be inconceivable for him to then actively participate in the case being made against his client. In submitting a brief that argues that Virginia’s Marriage Amendment is illegal, this is, effectively, what you have done. And for no good reason.
Contrary to the spurious claims of some, this constitutional provision is not some relic of bigotry, oppression, or injustice. Declaring that “only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth,” Virginia’s Marriage Amendment merely affirms the most basic criteria for a functional definition of marriage that corresponds with the purposes of the state’s regulation of it.
This provision does not “ban” intimate gay relationships any more than it “bans” friendships. Rather, it recognizes that traditional marriages are unique in terms of their particular role in society.
Consider that when the government offers tax advantages to environmentally conscious businesses or homes that meet specified criteria, it does not, by so doing, “ban” those who do not meet those standards, nor even express disapproval of them. But it reserves a special benefit to those who are behaving in a way that benefits society as a whole. It incentivizes those who provide an essential public good.
In the same way, Virginia’s Marriage Amendment preserves the legal benefits of civil marriage for those who form the particular kind of permanent, exclusive union that is best suited for producing and rearing the citizens of tomorrow. Others may raise children with love and do it well, but the best available evidence indicates that there is simply no alternative family arrangement that rivals traditional marriage in the ability to prepare children to flourish in a world populated by both men and women.
While your brief seeks to analogize the Marriage Amendment to old, unjust laws against interracial marriage, this logic does not withstand thoughtful analysis. A requirement of racial sameness for spouses is arbitrary; it has nothing to do with the purpose of state regulation of marriage–providing an incentive for those whose union is likely to produce offspring to stick together and raise them. The requirement of gender complementarity, on the other hand, is unquestionably central to the fulfillment of the purpose of civil marriage laws, because it is precisely the union of a man and woman that produces the children who will benefit most from the permanence and exclusivity of their parents’ union.
Eliminating these criteria from the definition of civil marriage is appropriate only if we, as a society, determine that the purpose of civil marriage is fundamentally different from what it has always been. If, however, we still regulate civil marriage on the basis of its unique potential to benefit society, then it is properly limited to the one kind of relationship that is so clearly shown to do that.
The great, lasting societal harm you are inflicting in your battle against your client, Mr. Herring, is this: the reduction of civil marriage to a mere stamp of government endorsement on individual “choice.” For the 57% of Virginians who voted in favor of the Marriage Amendment, marriage is something much different—much farther reaching—than that.
Mr. Herring, if you are utterly unable to discern the reason and rationality behind the expressed will of the people of Virginia with regard to defining marriage, and if you are unwilling to zealously advocate the best possible case for our Constitution when it is challenged due to your own personal, philosophical beliefs or desires, then I respectfully request that you resign your office.
Rita M. Dunaway is vice president for Public Policy with Virginia Christian Alliance. She lives in Harrisonburg.