By Lawrence Messina
CHARLESTON — Evangelical Christian groups continued their drive Tuesday to convince West Virginia lawmakers to allow voters to define marriage in the state constitution as being between one woman and one man.
The state Family Policy Council and the national Alliance Defense Fund both addressed a joint legislative committee studying the issue. So did foes of their proposed amendment and a law professor considered an authority on West Virginia’s constitution.
Council President Jeremy Dys said his group’s in-state polling found that a growing majority favors his group’s definition of marriage. He urged lawmakers to get out of their way.
“There is no legitimate reason not to let the people decide the definition of marriage,” said Dys, a lawyer. “Representative democracy means listening to your constituents when they ask to govern themselves.”
But opponents cast the amendment campaign as an attempt at tyranny of the majority.
“No one’s rights are safe if anyone’s rights can be taken away by the whim of popular opinion,” said Seth DeStefano of the American Civil Liberties Union’s West Virginia chapter.
Dys’ council blitzed voters during the 2009 regular session with ads and glossy mailers, urging them to press their lawmakers to advance the legislation necessary for a special election. But some House and Senate Democratic leaders questioned whether the drive amounted to a partisan power play, as the council enlisted GOP consulting firms for its campaign.
House Majority Whip Mike Caputo, D-Marion, noted that one of the council’s Republican-conducted phone polls singled him out, but not his district’s two other members.
“I don’t know who finances your group, but they really need to know that you never even came to me to ask me for my position before you started asking people in my district to start calling me,” Caputo told Dys.
Stephen Skinner, president of Fairness West Virginia, contrasted the amendment push with the state’s ongoing “Come Home to West Virginia” campaign aimed at departed natives. His group advocates for gay, bisexual and transgender West Virginians.
“I think what we’re here to talk about today, essentially, is whether there should be an asterisk” with that slogan, he said. “Should it be, ‘Come home, unless you are gay or lesbian, because we don’t really want you’?”
Skinner, a lawyer who told the committee he is gay, also cited a 2005 University of California-Los Angeles study that estimated there are same-sex couples in each of West Virginia’s 55 counties.
Ministers and gay advocates alike packed the committee room and listened quietly throughout the two-hour hearing. The civil tone continued for more than a half-hour afterward, with advocates from both sides lingering to discuss and debate.
West Virginia does not recognize same-sex marriages granted elsewhere, under a 2000 law that also requires all marriage license applications to state that “marriage is designed to be a loving and lifelong union between a woman and a man.”
But Dys and Alliance Defense Fund counsel Jordan Lorence both argued that the statute remains vulnerable to a lawsuit. Lorence targeted the sort of stance taken by Gov. Joe Manchin. While endorsing marriage as being between a man and a woman, the Democratic governor has questioned the need for a constitutional amendment absent any pending challenge.
“That is like saying you don’t need a vaccination program for swine flu because we haven’t had an epidemic yet,” Lorence said.
West Virginia University law professor Bob Bastress counted 122 attempts by voters to amend the state constitution ratified in 1872, with 73 of them succeeding. But he added that amendments to its Bill of Rights have been rare and have tended to expand rights, with the possible exception of prohibition in 1912.
While arguing that the proposed amendment has been mislabeled as a gay marriage ban, Lorence said state constitutions can restrict rights. He cited how states reserve voting for residents and that five previously banned polygamy.
Committee members fell on both sides of the question. Delegate John Frazier, D-Mercer, asked Skinner whether voting for allowing the amendment would make him a bigot. A former circuit judge, Frazier also questioned how the amendment could restrict rights that don’t exist.
Citing Lorence’s acknowledged lack of knowledge on state divorce rates, Delegate Danny Wells, D-Kanawha, suggested his group focus on that instead. West Virginia has the country’s fourth-highest divorce rate, per-capita, according to 2007 figures from the National Vital Statistics System.
Six states allow same-sex marriage, while 30 have amended their constitutions in ways that forbid them.
