VCA has contacted Governor McDonnell to speak out about the potential use of state funds to provide marital benefits to same-sex couples in the Virginia National Guard who are legally married in other states.
Secretary of Defense Hagel recently announced that, as a result of the Supreme Court’s decision to overturn the Defense of Marriage Act (DOMA), the Department of Defense would provide marital benefits to same-sex couples who are legally married.
Following this announcement, Delegate Bob Marshall (R-Prince William) wrote to Governor McDonnell to request assurance that the Governor would not use Virginia funds for nor alter Virginia’s tax code in accordance with the new policy, but that he would instead follow Virginia’s Marriage Amendment, which forbids any form of state recognition of same-sex unions. In response to a media inquiry, however, the Governor’s spokesperson indicated that he would follow all Department of Defense policies and guidelines.
VCA is calling upon the Governor to defend the sovereignty of our Commonwealth with regard to state issues such as defining and regulating marriage. No federal law or judicial decision purports to require any state to recognize same-sex unions as “marriage.” Rather, the definition and regulation of marriage remains—as it has always been—a state prerogative. If our elected officials capitulate to federal policy decisions such as this one, it will signal to the nation that Virginia’s Constitution may simply be ignored by federal bureaucrats and will not be defended by our own state officials.
To read VCA’s letter in its entirety, click HERE.
September 11, 2013
The Honorable Robert F. McDonnell
Office of the Governor
Patrick Henry Building, 3rd Floor
1111 East Broad Street
Richmond, Virginia 23219
Re: Protecting Marriage in Virginia
Dear Governor McDonnell:
As a spokesperson for thousands of Christians across the Commonwealth, including many pastors and ministry leaders , I am compelled to respond to recent accounts of your office’s commitment to apply Department of Defense “policies and guidelines”—including the funding of marital benefits for same-sex couples—to the Virginia National Guard.
While the federal government must alter its own policies in such ways as are required by the Supreme Court’s recent invalidation of the Defense of Marriage Act (DOMA), it is imperative that you, as Governor of the Commonwealth of Virginia, refuse to capitulate state sovereignty in the regulation of marriage in the first instance by applying state funds to federal agency “policies” that directly conflict with Virginia’s Constitution. If we are to remain a Commonwealth that operates under the rule of law, you must fulfill your oath to support Virginia’s Constitution, which forbids legal recognition of same-sex unions.
The Importance of Virginia’s Marriage Amendment
It must first be noted that the purpose behind Virginia’s Marriage Amendment is to recognize, for purposes of public policy, that civil marriage is a unique type of relationship which is properly limited to a particular set of definitional criteria for the benefit of society as a whole. While the state may have little or no interest in interfering with the private, consensual intimacy of free adults, it certainly has an interest in ensuring that civil marriage and all of its commensurate public benefits be reserved for those unions that are proven to confer the greatest benefit back upon the state.
Reliable studies indicate that households in which children are raised by both biological parents provide a unique benefit to society: these children, overall, fare better under every indicator of success. There is simply no other type of relationship that can approximate marriage—the permanent, exclusive union of one man and one woman—in terms of the rich and indispensable benefits it provides both to individuals and to society. No other familial arrangement is so naturally and especially suited to the rearing of well-balanced, emotionally healthy children who will be prepared to assume the responsibilities of citizenship.
Child-rearing is a function that the state cannot perform effectively or efficiently and should not attempt to undertake. Yet when it is performed poorly or ineffectively (even in a home characterized by love for children and the desire to rear them well), the state is generally burdened with the task of picking up the pieces. Therefore, the maintenance of a limited government is facilitated by a strong, healthy marriage culture.
By implicitly endorsing the idea that relationships which are different in kind from marriage are equally entitled to receive the benefits heretofore reserved for civil marriage, the state would be undermining the value of true marriage as a unique human good and a unique contributor to the welfare of the state. The state would be endorsing, instead, a radical new conception of marriage as an essentially emotional union that need not be inherently suited for and/or oriented toward procreation and childrearing.
At first blush, the provision of marital benefits to same-sex couples appears to further the goal of “equality” and eliminate the vice of “discrimination.” But these labels are appropriate (1) only to the extent that alternatively-comprised relationships can be proven “equal” to marriage in terms of the social good being incentivized (in this case, the establishment and maintenance of unions best suited for childrearing), and (2) only to the extent that the refusal of the state to confer benefits upon such alternatively-comprised relationships is based upon an arbitrary rather than a meaningful distinction.
As voluminous data have demonstrated, no other union confers the same societal benefits as the permanent, exclusive union of one man and one woman. So the singling out of this particular type of union as the recipient of particular public benefits is not an act of invidious discrimination toward other relationships, nor would its redefinition result in legal “equality” for statuses that are on equal footing in the relevant regards. Rather, preserving marriage and its venerated defining characteristics is a wise public policy choice that benefits all members of our society because, in the long run, it offers the best results for children.
Finally, careful consideration exposes the fact that when we erase the traditional boundaries of marriage by ignoring the original purpose for the state’s provision of marital benefits—encouraging, stabilizing, and incentivizing the establishment and maintenance of unions best suited to family life and thus most likely to benefit society in turn—we open the definitional floodgates to all conceivable variations of intimate human relationships, without any apparent logical principle for closing them again. If state benefits are to be provided to same-sex couples, then on what basis can they be denied to roommates committed to living together, polygamous relationships, or cohabiting bachelors? If marriage can mean anything, then, in fact, marriage means nothing.
Legal justification for refusing to provide same-sex “marital” benefits from state funds.
At this time it is unclear that the Department of Defense (DOD) has any legal authority to insist that Commonwealth funds be used to provide monetary benefits to same-sex couples married under the laws of other states. Some have opined that the Supremacy Clause of Article VI of the United States Constitution requires Virginia officials to comply with the policy announced by Secretary of Defense Hagel. However, the DOD policy itself does not appear to specifically require that state tax dollars be used to provide the benefits in question.
More fundamentally, it is doubtful that (under current circumstances) even a DOD policy specifically directing the use of Virginia funds to provide same-sex couples with marital benefits could preempt Virginia law. To our knowledge, the Secretary has not identified any federal law or duly-enacted regulation which might implicate principles of preemption on this issue. This is important because “The critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law.”
In the absence of any federal legislation specifically directing a sea change in principles of federalism regarding the regulation of marriage, there is scant basis for claims of preemption. While the Supreme Court’s reversal of DOMA may preclude the federal government from refusing to recognize same-sex marriages that are legally recognized by a state government, neither this ruling nor any legislative directive from Congress purports to interfere with existing state definitions of marriage, nor to empower administrative agencies to do so. Thus, inasmuch as the new DOD policy appears to be self-initiated, any argument that the Supremacy Clause exalts it over state constitutional provisions appears to be dubious, at best.
And finally, to the extent that any contractual provisions between the Department of Defense and the Commonwealth require the Commonwealth to comply with all policies of the Department, such provisions could not be legally interpreted to require Virginia to fund same-sex benefits, because that interpretation would render the provisions illegal under Section 15-A of Virginia’s Constitution. Contractual provisions requiring a party to commit an illegal act or one that is contrary to public policy are unenforceable under well-established doctrines of contract law.
On behalf of Virginia Christian Alliance, I request that you reverse your position on this issue from one of capitulation to federal policy preferences and cultural trends to one of commitment to the preservation of state sovereignty in matters of marriage and family. If you fail to defend the right of Virginians to preserve the timeless institution of the family through our own, duly-enacted constitutional amendment, then you will signal to the nation that the whole of our Constitution—the legacy of intellectual giants such as James Madison and George Mason—may be overruled by the policies of federal bureaucrats and discarded by all as a mere collection of lofty sentiment devoid of practical meaning.
I remain hopeful that you will ultimately choose to fulfill your role as an essential guardian of our Commonwealth’s sovereignty and our collective political will, and I look forward to hearing from you. If I do not receive a response by Wednesday, September 18th, I will assume that you have refused to reexamine your position on this matter.
Rita M. Dunaway, J.D.
Vice President for Public Policy
Cc: Attorney General Kenneth Cuccinelli
 Virginia Christian Alliance is a statewide network that seeks to impact Virginia through well-reasoned, respectful advocacy and education on public policy issues and by challenging Christians to engage the culture and serve their communities.
 See, e.g., Marriage and the Public Good: Ten Principles (Princeton, N.J.: The Witherspoon Institute, 2008).
 Same-sex relationships are just one example of many that are different in kind from marriage. In the case of a same-sex union, it is different in kind from marriage because it lacks one of the most basic components of marriage: gender complementarity.
 It is important to bear in mind, in this regard, that under Virginia’s marriage law, no class of individuals is denied the right of civil marriage; many are unable, for legal and other reasons, to marry the particular individual they prefer, but no disabilities are imposed upon any particular class of person.
 Louisiana Public Service Comm’n v. Federal Communications Comm’n, 476 U.S. 355, 369 (1986) (applying preemption principles in the context of administrative agency action) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).
 See, e.g., Eure v. Jefferson Nat. Bank, 248 Va. 245, 250-52 (1994); Blick v. Marks, Stokes and Harrison, 234 Va. 60 (1987).