Commentary: Va. marriage amendment is a wolf in sheep's clothing

Now, the Virginia General Assembly is considering a proposed amendment to insert this dangerous ideology into the commonwealth’s constitution for the first time ever.

Senate Joint Resolution 249 (and its House counterpart, House Joint Resolution 9) would repeal the provision defining marriage as the union between one man and one woman, but it doesn’t stop there. It requires the state and localities to recognize any lawful marriage between two adults without regard to sex, race, or … gender.

Don’t be fooled. The intentional insertion of “gender” into the constitution is a wolf in sheep’s clothing, and the consequences of this monumental change won’t be fully felt until it is too late.

First, the amendment not only injects “gender” into Virginia’s foundational document; it deems “gender” different from “sex.” This is the core concept underlying gender identity and ideology and its belief that a person’s “gender” is fluid, on a spectrum, and separate from his or her sex as male or female. The amendment elevates “gender” to protected-class status in the constitution on the same level as race. This is a radical step few states have taken.

When the law deems “gender” or “gender identity” to be distinct from sex, chaos and abuses of longstanding fundamental rights have inevitably followed. Women’s rights to privacy, safety and equal athletic opportunities are stripped away. Public school bureaucrats withhold from parents critical information about a child experiencing gender confusion and even fire teachers who refuse to lie about a student’s sex. Activists sue doctors who object to pushing puberty blockers and cross-sex hormones on vulnerable kids.

The proposed amendment reflects bad ideas about what it means to be female and male, and bad ideas — particularly ones enshrined in the constitution — have real victims.

Second, the infiltration of gender ideology into the commonwealth’s charter might embolden activist judges to go further. Time and again, judges have invented new “rights” that strip proper authority away from the people and their elected representatives. Adding “gender” to the Virginia Constitution might encourage progressive judges to handcuff the legislature’s ability to pass laws reflecting the people’s commonsense views on the distinction between the sexes.

Third, the inclusion of “gender” in the amendment has no innocent explanation. The amendment’s drafters only needed to include “sex” to accomplish their stated purpose of preserving same-sex marriage. A person’s “gender” or “gender identity” (understood as something distinct from sex) has never been the basis for withholding a marriage license. The argument for same-sex marriage was based on the fact that marriage had historically been limited to two people of the opposite biological sex. It had nothing to do with the self-identified “gender” of the two individuals marrying. That concept is simply foreign to the institution of marriage.

The amendment’s drafters surely understand this. They added “gender” for a reason. And that reason appears to go far beyond preserving legal recognition of same-sex unions.

Fourth, the amendment is completely unnecessary. It is predicated on the false notion that interracial and same-sex marriage are somehow in jeopardy. The U.S. Constitution has protected interracial marriage since the U.S. Supreme Court’s decision in Loving v. Virginia in 1967. It is preposterous to believe that decision will be overruled.

As for same-sex marriage, the U.S. Supreme Court required the legal recognition of same-sex unions almost 10 years ago in Obergefell v. Hodges. Virginia circuit court clerks are not withholding marriage licenses from same-sex couples. No state is refusing to recognize same-sex marriages. No advocacy organizations are filing legal challenges to Obergefell.

But that’s not all. The General Assembly enacted a law essentially identical to the proposed amendment less than one year ago. What’s the point of replicating it in the commonwealth’s constitution?

Fifth, the proposed amendment conspicuously stripped out the religious liberty protections included in the essentially identical statute the General Assembly enacted last year. While the sponsor claims such protections are unnecessary, the hostility evidenced at the hearing in November toward those who hold to the good-faith religious belief that marriage is a sacred union between one man and one woman shows that protections for people of faith and religious organizations are never superfluous. There is no legitimate reason for omitting potentially critical religious liberty guarantees.

At a time when a growing number of Virginians are objecting to gender ideology in our schools, on our sports fields, and in private spaces, the last place we need this ideology to plant itself is the constitution.