Finally, the October Surpise.

By Too Conservative

October is virtually down the drain and it turns out that the election-bending “surprise” will not be Osama’s head in a banker’s box lined with dry ice and bubble wrap, but rather a decision of the New Jersey Supreme Court. The new talking points for our team, from the President to Senator Allen to Rick Santorum to they guy running for dog-catcher in Dogpatch is that we’re FOR one-man/one woman marriages. It has come to that.

Yesterday in Iowa, the President previewed the new theme by describing the split NJ decision as on that “raises doubts about the institution of marriage.”  The President went on to say that traditional marriage is an institution that “must be defended.”

More marriages are threatened by men failing to put their dirty socks in the hamper than this New Jersey decision (let’s hope Viriginians don’t decide to amend our Constitution to regulate housekeeping habits). But the balloon has gone up, nothing else has worked, and you’re going to be hearing a lot about “defending marriage” from here on out to Election Day. By the middle of the coming week, Iraq will be gone, sex and corruption in Congress will be gone, fiscal responsibility issues will be gone and we’ll all be madly shadow-boxing against “activist judges” who seek to “threaten marriage.”Â

My guess is that this is one issue that can break the fall of enough Republican candidates to ensure continued control of the Senate and make things close in the House results. It’s an absolutely irresistible issue to demagogue. It will distract voters from all these other issues that have inflicted so much damage on Republican candidates. It will also tie Democrats in knots as they try to explain why the intricacies of New Jersey statutes and state constitutional provisions have little impact on any single heterosexual marriage anywhere in New Jersey or elsewhere.

So, the October Surprise arrived in the nick of time. My forecast is that Republicans hold the Senate, that GOP losses in the House will be far less than the positively giddy MSM have talked themselves into, that there will be no losses in the Virginia GOP Congressional delegation (including Drake and Allen) and that Marshall-Newman (the “Defense of Marriage” amendment) will pass by about 2,000,000 to 2. (Judge Wikinson and I being the only constitutional conservatives around whose marriages are apparently not threatened by anything that a constitution can control.)Â

Glad we dodged that bullet. On to victory in 2008.


  • NoVa: Jim Bacon will vote with you for the same reasons.

    I would – almost. This is a tough nut decision where I go to you ‘gotta do what you gotta do’. Sort of like April 1861 when Virginia had already rejected secession by plebescite. Then Lincoln ordered 7500 soldiers from the Virginia militia and indicated plans to use them against the sovereign (under the former interpretation of our second Constitution) state of South Carolina – which had initiated hostilities against Federal personnel and property. In April 1861 there was a second plebescite. Of course, I am confident that our Marriage Amendment will come out better than that fateful vote in 1861.

    FYI, my op ed – Google ‘Cut and Run Republicans James Atticus Bowden’ in a coupla days – speaks tangentially to your blog notes. I think your political perception is Sabatoan – without the Liberal bias.

    08 will be a watershed indeed. If the Republicans don’t nominate a Conservative, then I resign my Party jobs and start digging my bunker. (Just kidding about the bunker thing – Poquoson is insular enough)

    Regardless of the ‘inside baseball’ vagaries of NJ law (you are a lawyer, n’est-ce pas?) probably left over from when Ben Franklin’s son was the Tory Governor serving the Crown – maybe snuck (I know – sneaked) in when it was a hotbed of Copperhead dissent, the BIG story in NJ is judicial tyranny.

    NoVa if we ever totally agree – no nuances of exception – on an issue then I’ll buy you crabcakes when you come to Tidewater.

  • NoVA Scout says:

    JAB: we start at a lot of the same places and come out differently on a few. I know this is one you feel strongly about. I find Marshall/Newman to be positively leftist in its inclination to use the venerable constitution of this proud Commonwealth as a legislative device. If I thought there were really a true underlying problem, I might be more sympathetic, but I’d still oppose the amendment. When the libs get into a position to amend the constitution to require a “living wage” or some such stuff, I’ll be able to oppose and you’ll be compromised.

    But I think you and I know how to disagree and I’d be pleased and honored to sit down over crabcakes with you.

    BTW, as a postscript, my town voted nearly 2 to 1 to stay in the Union.

  • rtwng extrmst says:

    You folks all miss the point. While certainly gays being allowed to marry will not affect my marriage here and now, it most certainly WILL affect our society eventually.

    The need for the amendment is because we have a judiciary bent on making sure that gay marriage or its equivalent is approved. Without this amendment most certainly there will eventually be a similar challenge in VA with the end state being gay marriage.

    The problem is, once you do this (approve marriage based on a self-defined sexual desire) you remove any of the logical underpinnings for defining marriage at all. Once you allow gay marriage(or its equivilent) there is no rational argument to limit any kind of self-defined arrangement at all from being sanctioned by the state as “marriage”. It would indeed be discriminatory to allow gay marriage and not multiple spouses, or marriage to close relatives, etc. There is no difference at all in the argument.

    Marraige between one man and one woman is clearly based in biology and the evidence provided in thousands of years of civilized society. It is the base of the family on which lasting societies are built. Without the traditional family, societies crumble and without the traditional definition for marriage we might as well not have the state sanction or recognze any relationships at all, because that will be the end state of the culture eventually anyway. BTW there is a name for this too… The state becomes one big family… Communism.

  • Was that Watertown (hope I got the name right – the Quaker village west off Rte 7) in Loudon County or what?


  • NoVA Scout -you are not the only conservative who is voting NO on this amendment. While the NJ decision may be used as a rallying cry for the social conservatives, the question remains as to whether they will actually come out and vote.

    I do have to wonder, though, why the NJ court did not wait until after election day for this decision. Perhaps they thought that people would understand that it could in no way apply in a state like Virginia. But surely they had to know it would add fuel to the fire of the gay marriage opponents.

  • Anonymous says:

    All I can tell you is that my wife said whenever she hears the tone of those pro marriage amendment ads it makes her blood boil. “How stupid do they think we are?” she said.

    And she is as conservative as they come. You still won’t get her vote, she is going to kill the messenger.

  • Chris Porter says:

    “use the venerable constitution of this proud Commonwealth as a legislative device”

    The Virginia Constitution
    * is 35 years old
    * once specified that a women had to note her maiden name when registering to vote
    * prohibits churches from being incorporated
    * prohibits localities from appropriating money in excess of $500 without an affirmative vote
    * prohibits utilities from running lines in streets without prior approval
    * limits leases of public property to 40 years
    * requires public education to be “high quality”
    * requires that textbooks be provided free to poor children
    * Exempts cemetaries and public libraries from taxation
    * Creates a retirement trust fund for state employees

  • This will definitely put the marriage ammendment over the top.

  • Chris Porter says:


    The Chief Justice of the NJ Supreme Court was retiring on Wednesday. If they didn’t issue the ruling, they would have had to re-hear the case.

  • -Disappointed LCRCer says:

    I’m voting against the gay marriage amendment, too. Private contracts between consenting adults are nobody else’s business. If you don’t like it, don’t do it.

    I do, however, think the concerns over judges creating laws are valid ones. I do believe this is a decision that should be made either by voters or by their elected representatives. With that said, I reiterate my firm belief that extremists from either wing making decisions concerning adults’ private lives is a very very bad way to order society.

  • rtwng extrmst says:


    FYI the amendment will not remove anyone’s private contract rights. It simply defines the institution of marriage and prohibits creating any institution similar in the eyes of the government that is not between one man and one woman. It limits no-ones contract rights.

  • NoVA Scout says:

    JAB: You’re thinking of Waterford.

  • NoVA Scout says:

    Chris Porter: You offer a good example of why Virginians should know more about their Constitution before voting on amendments. I’ll give you the benefit of the doubt and assume you are just confused, and not deliberately trying to obscure the significance of the document. Article I of the Virginia Constitution (The Virginia Declaration (or Bill) of Rights)is what Marshall Newman proposes to amend. It is 230 years old, not 35, and it states fundamental relationships between citizens and their state government. It is the foundation document not only of Virginia, but also a document of immense overt influence over the Declaration of Independence, the Constitution and the Bill of Rights in the federal constitution. It is rarely amended and, to my knowledge, has never before been amended to state a reservation of rights or benefits to one class of citizens and the exclusion of others from those rights or benefits. One issue that puzzles me is why Marshall-Newman attempts to modify the Bill of Rights, as opposed to being placed elsewhere in the Constitution where, as you observe, there are a number of elements that are pretty trivial and quasi-legislative in nature. What part of the existing rights of Virginians are felt to impede the objectives of the Amendment’s backers? There must be something in there that we are deemed to need to change or the Amendment would not be to Article I.

  • David says:


    The actual language of the amendment doesn’t say anything about creating institutions that are similar to marriage in the eyes of government. If that is what the legislature wanted to say, that is what the legislature could have said.

    What they chose to say instead is that courts cannot recognize a “legal status” that “intends” to “approximate” any one or more undefined attributes of marriage. They also chose to take out the “savings clause” that exempted certain private contracts and domeestic violence law.

    You are substituting what you wish the amendment said for what it actually says in order to sell it. I don’t know if you or other proponenets of the amendment have considered the meaning of the term “legal status,” but in fact it has no meaning with regard to VA code. It could mean anything a judge wants it to mean, including one or more private contracts of the sort that are commonly executed precisely in order to “approximate” the rights and obligations of marriage.

    Putting such power to interpret people’s intentions in the hands of judges is a very dangerous road to go down. I thought you objected to having judges legislate from the bench – that is exactly what this amendment would require them to do.

    Placement of this language in the Bill of Rights is indeed bizarre, as it would directly conflict with religious liberty. This is headed for many years of litigation if it’s not stopped in its tracks.

  • rtwng extrmst says:


    Try to spin it however you like, but the wording I think is pretty clear and does not require a judge to interpret anyone’s intentions. All a judge has to do is look at the legal status of marrieds in Virginia and note that no relationship can be created to approximate those except between one man and one woman in the relationship of marriage. It does not in any way impact anyone’s religious beliefs or freedoms and certainly doesn’t limit anyone’s rights to create other kinds of private contracts.

  • David: How can a Constitutional Amendment being stopped – unless judges place themselve outside and above the Constitution.

    The amendment speaks to cities and counties as political subdivisions of the Commonwealth not branches of the Commonwealth government. Hey, NoVa Scout, you’re a lawyer – since when are courts – a branch with their own article in our Constitution suddenly a ‘political subdivision’?

  • NoVA Scout says:

    JAB, I confess great puzzlement about the language of the proposed amendment and, regardless of my several professions and avocations, am not in a position to be very helpful with an explanation of why it says what it says. I have some theories, but the language is nothing that would ever have come off my desk, even though I don’t question for a second the right of the state legislature to define civil marriage within constitutional limitations (I continue to believe that this whole debate has nothing to do with religious marriages, the definitions of which are protected by church doctrine, a subject well and rightfully beyond the reach and ken of the civil authorities).

    BTW, JAB, where are you going with this query on “political subdivisions”? Are you saying that the amendment only applies to the state government and its political subdivisions and hence is not binding on the courts? That would leave me more puzzled than I already am.

    And, while I’ve got you, JAB, why do you think Marshall Newman is being offered as an amendment to the Bill of Rights, as opposed to some other part of the state constitution? Which section of Article I requires amendment for the objectives of this amendment to be met? It’s proposed as an addition to section 15, which speaks to educational opportunities and the necessity of jsutice, moderation, temperance, frugality, and virtue as well as respect for law and due process. Is there something in section 15, which, absent amendment, would thwart the intention of the amendment?

  • NoVa: I’ll have to read section 15 and get back. I dunno.

    My point (Gee, I thought I made it so clear. Darn I hate it when I don’t do that!) was a response to criticisms that the GA was telling courts what to do. I read it as the GA telling the other legislative bodies – political subdivisions – not to make up marriage-like arrangements.

    So, let’s say it another way. No city, county or the GA (unless by new amendment) can make a law or rule creating a marriage by another name. They have to stick with what the Code of Virginia says is marriage. But, should any city, county or the GA attempt to do otherwise(Arlington take note), the courts (assuming they read, understand and comply with instructions written in English) will have to rule against them.

    I agree this Amendment has nothing to do with religious marriage but every marriage that is recognized by the secular state.

  • David says:

    See, if that was what the legislature had wanted to do, there’s no reason they couldn’t have done that, using plain language. They could easily have done what you suggest above, James, simply prohibiting the creation by a legislative body of a legal union similar to marriage.

    Whether due to incompetence or something else, the language they came up with actually says something very different. Further, the fact that the legislature actively chose to do away with the “savings clause” that would have provided at least some clarity is evidence of intent to have this interpreted as broadly as possible.

    Ultimately, the way that you would like people to believe this language will be interpreted is not relevent. It will not be up to you.

  • The State Board of Elections says (

    Proposed Amendment
    If approved by the voters, this proposed amendment will become part of the
    Constitution of Virginia. The proposed amendment adds a definition of marriage as the
    “union between one man and one woman” to the Constitution’s Bill of Rights and
    prohibits Virginia and its counties, cities, and towns from creating or recognizing any
    legal status by any name which is comparable to marriage.
    Marriage in the Commonwealth creates specific legal rights, benefits, and
    obligations for a man and a woman. There are other legal rights, benefits, and obligations
    which will continue to be available to unmarried persons, including the naming of an
    agent to make end-of-life decisions by an Advance Medical Directive (Code of Virginia §
    54.1-2981), protections afforded under Domestic Violence laws (Code of Virginia § 18.2-
    57.2), ownership of real property as joint tenants with or without a right of survivorship
    (Code of Virginia § 55-20.1), or disposition of property by will (Code of Virginia § 64.1-

    The SBE doesn’t mention courts. It says what I said.

  • NoVA Scout says:

    Bob Gibson asked AG Bob McDonnell today on WAMU’s Kojo Nnandi (sp? – sorry Kojo) show about the wording of the amendment, particularly the additional sentences beyond the direct definition of “marriage.” McDonnell answered that the language was lifted from the Ohio measure. Great. We amend Virginia’s gift to civilization with this nonsense because some Yankees used the language before us. It’s like Reconstruction around here.

  • David says:

    Actually, the third sentence, the one that doesn’t appear in the Ohio amendment, was created to plug a perceived loophole. Citizens for Community Values, the Ohio advocacy group most responsible for passing the amendment there, filed an amicus brief in one of the domestic violence cases currently pending (and leaving unmarried victims without protection in the meantime.) Their argument as to why the amendment prohibits domestic violence law from application to unmarried couples is the basis for the third sentence of the Virginia amendment. More here.

  • David says:

    JAB: Courts will be where this plays out. Courts will look to the language of the amendment, not the “SBE” (Bob McDonnell) explanation, or what you said.

  • David: What can a court do to a Constitutional amendment – rule it unConstitutional?

    English isn’t that hard to understand.

  • David says:

    Um, James? Where do you think, for example, legal challenges to the application of domestic violence law, or to someone’s medical directive, would be heard?

    Are you trying to be funny?

  • Is there a challenge to a Virginia domestic violence law today? Why would there be one tomorrow after the Amendment is passed? If there were, it would be a challenge to the specific law.

    Is there a challenge to someone’s medical directions?

    Let’s try this again s-l-o-w-l-y.

    Is any city or county or the Commonwealth planning on passing legislation next term for proclaiming marriage or civil unions or domestic partnerships for homosexuals? If the answer is no, then there won’t be a problem. Nothing will happen.

    If there is such a plan, then such legislation could be challenged in the Courts, and lo and behold, since it against the Constitution, the legislation will be found to be Un-Consititutional. Problem solved. As Tom Hanks said in ‘Philadelphia’, I love the law.

  • NoVA Scout says:

    JAB: excellent point on the absence of need for this goofy amendment. It took you a long time to come over, but we welcome you. We’re now up to at least 30 stout-hearted conservatives who understand how silly this is.  Let’s have those crab cakes.

  • NoVA: I am smiling here. I think you added a sentence in your mind.

    This amendment simply keeps the cities, counties and Commonwealth from making up something like marriage or changing the definition of marriage.

    I use the metaphor of constitutional concrete – only. I regret that it has to be done at all – that we have fallen so far from commonsense in the judiciary.

  • NoVA Scout says:

    Perhaps I misunderstood. Are you really concerned that local governmental authorities in Virginia would apply the term “marriage” to same-sex arrangements? Are you concerned that the General Assembly would do that? I sure am not very worried about that ever happening in these parts. Is the purpose of the amendment to protect ourselves against our legislative bodies? If so, isn’t the least messy solution to expect the legislature and boards of supervisors etc, to honor what is an overwhelming popular antipathy toward the use of the word “marriage” to describe same-sex relationships.

  • NoVa: I think – I am not in the GA and didn’t craft the bill – that the bill keeps our subordinate governments from going goofy and trying to change marriage. If they don’t get stupid, then I don’t see a court challenge or any test of the amendment.

  • NoVa Scout says:

    Up until now, I thought we were trying to protect ourselves from our judges, not our local governments.

  • NoVa: The Founding Fathers created a government that would work for sinful, fallen men, as we are, who will misuse power – in every branch of government.

  • NoVA Scout says:

    And they did a helluva job. Leave them alone, I say.

  • rtwng extrmst says:

    Agreed, NOVA only we need to apply that sentiment to the Judiciary.

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