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Virginia Attorney General Bob McDonnell has issued an opinion that the proposed marriage amendment to the Virginia Constitution “will not affect current legal rights and obligations of unmarried persons involving contracts, wills, advance medical directives,“ and so on. He’s said as much before. But as I’ve pointed out before (in the May 16 column, “Could a Judge Misinterpret the Marriage Amendment?“), the advocates of the amendment seem to have painted themselves into a logical corner.

If the threat to traditional marriage from activist judges is so dire that existing statutory language banning gay marriage is not sufficient, then what is to prevent those same (unidentified) activist judges from misinterpreting the marriage amendment and invalidating existing statutory language on other topics? Judges elsewhere have ruled that state marriage amendments invalidate the protections of spousal-abuse laws for unmarried persons, for instance.

McDonnell’s opinion is merely advisory. Judges are free to disagree with it. What is to prevent an activist judge from concluding that the amendment—which forbids recognizing or creating a “legal status” for “relationships” that “approximate the design, qualities, significance, or effects of marriage” or recognizing any “partnership ... to which is assigned the rights, benefits, obligations, qualities, or effects of marriage”—supersedes existing state law regarding wills, advance medical directives, and so on?

McDonnell says he can “find no legal basis for the proposition that passage of the marriage amendment will limit or infringe upon the ordinary civil and legal rights of unmarried Virginians.“ But what’s to stop an “activist judge” from doing so?

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