Virginia code

Defend Your Vote: Contact Attorney General Mark Herring!

In an unprecedented decision with long-reaching consequences for the rule of law, and within days of swearing to defend the constitution and laws of Virginia, Attorney General Mark Herring has broken his oath by not just refusing to defend Virginia's marriage amendment, but joining the case in opposition to the constitution. He won't even appoint outside counsel to defend the commonwealth as is the procedure when an attorney general cites some type of conflict.

Please click here to contact Attorney General Herring and ask him to defend the Virginia Constitution and if he is unwilling to do so that he appoint outside counsel to defend the law.

As attorney general, Mark Herring's primary duty is to defend the laws of the commonwealth. Courts have long ruled that laws of the commonwealth are presumed constitutional until determined otherwise through a judicial proceeding. That means the burden is on the person challenging the law to demonstrate that it is unconstitutional. Attorney General Herring is flipping that long-settled legal precedent on its head by not only refusing to defend the marriage amendment, which is presumed by courts to be constitutional, but to affirmatively challenge its constitutionality.

Attorney General Herring points to his predecessor's decision not to defend the constitutionality of a state law passed last year as precedent for his action. But there are significant differences between the cases. Former Attorney General Ken Cuccinelli did not affirmatively challenge the constitutionality of the law and second, he appointed outside counsel to defend the law on behalf of Virginia, as is customary when an attorney general either objects to the law, has a conflict, or the Office of Attorney General lacks expertise in the matter under review. Virginia law takes into account that there may be times where it is not practical or economical for the attorney general to defend the laws of the commonwealth. In those circumstances, Virginia Code §2.2-510 authorizes the attorney general to appoint outside counsel.

Instead, Attorney General Herring unilaterally decided — "after conversations with friends and family" — that Virginia's constitutional amendment defining marriage is unconstitutional. He said he also based his decision on last summer's Supreme Court rulings regarding marriage, but neither of those rulings invalidated state marriage amendments. Simply put, the attorney general of Virginia has no constitutional authority to determine for himself that a law or amendment is unconstitutional. That is for the courts to decide.

His decision today disenfranchised more than one million Virginians who legally voted for the Marriage Amendment in 2006, and left them unable to defend themselves in court.

The decision by the Attorney General Herring is not surprising, but it is disappointing and frightening. It's disappointing that he wouldn't be clear about his intentions on this issue while campaigning for the office. More importantly, it's frightening that politicians such as Attorney General Herring feel that they can pick and choose which aspects of the constitution they deem worthy to defend and apply. Whether one agrees with the Marriage Amendment or not, the idea that more than a million Virginia citizens can be left defenseless by the attorney general after legally voting for an amendment that he himself supported is chilling.

ACTION: Contact Attorney General Herring and ask him to defend the Virginia Constitution or, if he is unwilling to do so, that he appoint outside counsel to defend the law.

Click here to e-mail him

Or

Call his office at (804) 786-2071

Governor McDonnell Signs Into Law Religious Liberty, Parental Rights, Other TFF Priority Bills!

Governor Bob McDonnell on Monday signed several Family Foundation priority bills into law! One set of bills he signed comprised our top legislative priority in 2013. They protect the freedom of association and religious liberty rights of student groups on Virginia public college campuses. These bills, patroned by Senator Mark Obenshain (R-26, Harrisonburg) and Delegate Todd Gilbert (R-15, Woodstock), simply ensure that student groups can set their own criteria for membership and leadership and not be discriminated against simply because a university doesn't like the content of their speech. The bills include language ensuring that the groups cannot violate state or federal discrimination laws regarding race, religion, etc.

The governor also signed bills that affirm that parental rights are fundamental. The bills, patroned by Senator Bryce Reeves (R-17, Fredericksburg) and Delegate Brenda Pogge (R-96, Yorktown), elevate the common law understanding of parental rights in place in Virginia for 400 years to that of a fundamental right. While no rights are absolute, courts give special deference to fundamental rights, requiring the state's "compelling interest" to intervene. This is especially important since 24 other state courts have reduced parental rights to "ordinary" — a standard more easily trumped by government authorities that attempt to interpose themselves in family decisions. Distractors continue to make claims about the potential impact of this new law that are simply not accurate. The state's authority to protect children who need intervention doesn't change, nor will parents be able to disrupt public education.

In addition, Governor McDonnell signed into law HB 1871, patroned by Delegate Jennifer McClellan (D-71, Richmond), defining bullying in Virginia code. This will ensure that state education officials have clear guidance as they develop policies relating to the growing problem of bullying that needs to be addressed in an effective and reasonable manner. Having a clear definition of bullying will equip school leaders to develop the most effective strategies to keep children safe and produce an environment conducive to learning. The bill includes First Amendment protections to ensure that students cannot be punished for simply voicing an opinion that is unpopular.

Finally, the governor submitted clarifying amendments to another Family Foundation priority, a bill that removes a serious barrier to helping families in crisis limit the amount of government intrusion while providing opportunity for reunification. More and more, families are relying on close relatives to help take care of their children during a crisis, using what is called kinship care. But these relatives often face barriers when trying to enroll the children in their local school, as some school divisions require the relative caregiver to obtain legal custody of the child before enrollment is possible, which requires the action of a court. SB 960, patroned by Senator George Barker (D-39, Alexandria), allows for the use of a power of attorney, better enabling families to work together through a crisis. Once the governor's amendments are adopted, he will sign the bill into law.

We appreciate the Governor McDonnell's actions on all of these important bills. You can e-mail him to thank him for his support by clicking here.

 

Student, Parental Rights Bills Advance!

Yesterday was "crossover," the mid-point of the 2013 General Assembly session and the day when each chamber must complete work on its own bills. It's also a day that saw two substantial pro-family victories. The Senate passed a priority for The Family Foundation — legislation that protects the free association rights of students on public college campuses. SB 1074, patroned by Senator Mark Obenshain (R-26, Harrisonburg), ensures that the current practice on the majority of our campuses will continue and that religious and political organizations will not be discriminated against because of their beliefs and values. The bill passed 22-18 with several Democrats joining Republicans to pass the legislation. The House companion bill, HB 1617, patroned by Delegate Todd Gilbert (R-15, Woodstock), passed 80-19 late last week.

In the House, legislation protecting parental rights as fundamental passed 70-30! The bill, HB 1642, patroned by Delegate Brenda Pogge (R-96, James City County), reflects a recent decision by the Virginia Supreme Court that recognizes parental rights as fundamental. However, 24 states have reduced parental rights from fundamental to "ordinary," making it easier for government bureaucrats to interfere with families. This is significant because courts give special deference to "fundamental" rights and putting it in the Virginia Code secures it from a future Virginia court from rewriting the recent decision. Currently, Virginia law is silent on the status of parental rights, instead relying on hundreds of years of common law, which has granted parents fundamental in principle.

A similar bill previously passed the Senate, but because the bills are slightly different, we will continue to work with the patrons and representatives of parental rights groups to bring them into "conformity" for final passage later this session. The Senate bill is SB 908 and is patroned by Senator Bryce Reeves (R-17, Spotsylvania) and will be in the House Courts of Justice Committee today.

In the past two days, other legislation supported by The Family Foundation also advanced, including bills that combat human trafficking, help ease restrictions on the creation of charter schools, and provide a definition of bullying for the Department of Education as it works on guidelines to help schools combat that serious problem.

Unfortunately, all news today wasn't good. The Senate decided to send SJ 287, a religious liberty constitutional amendment, back to committee, effectively killing the bill for this year. Based on an amendment that passed last year in Missouri, the amendment would have given Virginians the opportunity to vote to re-establish our right to pray at the start of government meetings and protect students' religious liberty rights. As we continue to watch the federal government infringe upon our God given right to express our faith in the public square, Virginians want to be able to respond. Our goal will continue to be to reinforce our First Freedom, through statute and, if necessary, a constitutional amendment. We thank Senator Bill Stanley (R-20, Moneta), the resolution's patron, and Senator Bill Carrico (R-40, Galax), the chief co-patron, for their very hard work and inspired and passionate words yesterday on the Senate floor.

In the coming days we will again notify you to take urgent action on key bills. Thank you to everyone who has contact their legislators so far! You voice does make a difference.

Wild Day At General Assembly Ends With Several Victories

With the first two weeks of this year's short session progressing at a less than brisk pace, it was inevitable that the start of the last week before "crossover" would be hectic. Monday did not disappoint. No less than three important sub- or full committee meetings, starting at 8:00 or 8:30 a.m. with maxed-out dockets, were scheduled. The House Privileges and Elections Sub-Committee on Constitutional Amendments offered up the first good news of the day when it voted to report HJ 684, patroned by Delegate Scott Lingamfelter (R-31, Woodbridge), which would allow the Board of Education to approve charter schools as a way to get around obstructionist local school divisions that now have sole authority to approve them — and the reason Virginia only has four charter schools.  Then the House Education Committee heard debate and voted to report HB 1442, the "Tebow Bill," patroned by Delegate Rob Bell (R-58, Albermarle), which would allow homeschooled students to play sports for their local public school; HB 1617, patroned by Delegate Todd Gilbert (R-15, Shenandoah), which protects college student groups from allowing membership to those who fundamentally disagree with the organization's mission; and HB 1871, a bullying definition bill successfully amended to ensure that it punishes bullies not based on the characteristics of the victim, but on the act of the bully. Additional language added to the bill ensures First Amendment protections.

Passage of the homeschool sports bill and the college student group protection act are legislative priorities for The Family Foundation. The latter would allow student groups at Virginia state colleges to organize according to their beliefs. Unfortunately, some universities around the country have enacted "all-comers" policies that essentially eliminate these groups from being able to set criteria for their members and leaders. Free association is protected by the constitution and this bill seeks to clarify that. It passed by a 19-2 vote. It also passed a similar bill affecting children of military personnel who constantly are re-stationed at various bases or deployed, but whose children stay in the same area with a relative.

Then, the shocker of the day: Overcoming the predictable opposition of the public schools, the Senate Courts of Justice Committee voted 8-6 to report the Parents Rights Bill, SB 908, patroned by Senator Bryce Reeves (R-17, Fredericksburg). It reaffirms Virginia court rulings that parental rights are "fundamental" into state code. This is significant, because fundamental rights are treated with much more deference by the judiciary than "ordinary" rights.

The afternoon was busier. Senator Ralph Northam (D-6, Norfolk) introduced his second bill of the session in the Education and Health Committee to repeal the ultrasound update to Virginia's informed consent law. Because of its redundancy, committee chairman Senator Steve Martin (R-11, Chesterfield), wasted no time in public debate and it died quickly on an 8-3 vote, prompting Senator Northam to call the committee a "kangaroo court."

The House Courts of Justice Committee had a full docket as well. After debate, it killed on a 10-6 vote HB 1644, patroned by Delegate Vivian Watts (D-39, Annandale), which would have changed the definition of birth control in the Virginia Code to include abortifacients, including the morning after pill. While advocates claimed it was an innocuous bill, it would have forced pharmacists against their conscience to dispense abortifacients to those 17 and younger. Later, after many questions of concern their Senate counterparts did not have, the committee voted to pass by until Friday the House version of the Parents Rights Bill, HB1642, patroned by Delegate Brenda Pogge (R-96, James City).

Please contact members of the House Courts of Justice Committee and urge them, especially if your delegate is on the committee, to pass HB 1642, to secure basic, fundamental rights of Virginia parent in state code! 

Please also contact your senator to vote yes on SB 908 on the Senate floor and no to any motion that would re-refer it to committee or otherwise kill it.

If that wasn't enough, sub-committee meetings started in the evening, highlighted by one of the most talked about bills of session, "The Right To Farm Act," a property rights bill. The highlight of that meeting is detailed in a brief, must read post, here.

Things are moving quickly this week. Please watch your e-mail, this blog and our Facebook and Twitter accounts — which often allow us to update you on events much more quickly — to get the latest news and information on what action to take with your delegates and senators in promoting traditional, conservative family values policies  in Virginia.

General Assembly Issue One: Life Defined And Protected

This is the first in a series about key issues facing this year's General Assembly.

Last year, The Family Foundation successfully advocated for the passage of one of our top priority bills: the "Baby Bill." While the "Baby Bill" closed a loophole in Virginia law that previously allowed the killing of a child just moments after birth, this year we hope to build on that success by taking the protection of life one step further with the passage of legislation that would create a wrongful death statute for the unborn.

The Wrongful Death bill (HB 1440, the Senate bill has yet to be numbered) patroned by Delegate Bob Marshall (R-13, Manassas) and Senator Jill Holtzman Vogel (R-27, Winchester) would provide protection for the unborn in cases where they lose their life due to negligence of another.

While Virginia's Code does include a fetal homicide law, the same unborn life, taken without intention, or premeditation, elicits no penalty. Improving our law to provide for a civil penalty in the cases of fetal manslaughter is essential.

Virginia's current wrongful death law operates in accordance with the "born alive rule." The born alive rule dates back to a 1940s federal court decision declaring that a child could recover damages for injury caused in utero once they were born. By extension, if a baby is born alive (though sometimes barely and only through artificial means) and then dies, a parent can then pursue a wrongful death cause of action for the injury in utero.

Approximately 40 states have gone beyond the born alive rule and now allow for pre-birth wrongful death suits for injury caused to a fetus while in utero. The Wrongful Death bill would bring Virginia in line with current law in the vast majority of states. It defines life as beginning at conception and therefore has the practical effect of expanding the state's wrongful death statue to encompass all unborn children. After all, an unborn life is not only of value when it is wanted by the mother or when its life is intentionally taken by another.

Another Year In The Committee Of Death

The Senate Education and Health Committee richly deserves its "Committee of Death" moniker — it has been the graveyard for pro-life legislation for most of the decade. No pro-life bill has survived this committee regardless of its simplicity or common sense. As usual, a valuable bill that would have improved the safety regulations of the Commonwealth’s abortion centers was defeated there yesterday on a vote of 11-4 — a party line vote, with the exception of Senator Fred Quayle (R-13, Suffolk), who voted against the bill as he did last year. Patroned by Delegate Matt Lohr (R-26, Harrisonburg), HB 393 would require that these unregulated surgical facilities that perform abortions to be inspected, have emergency life-saving equipment, and be overseen by a state regulatory agency just as any other outpatient surgical center. This legislation has long been a pro-life priority. Delegate Lohr eloquently pointed out to the committee the disparity between how these unregulated surgical abortion centers are treated compared to other medical facilities. As inexplicable as it is, 11 members of the committee believe that incredibly less invasive procedures such as lasik surgery, blood donation, face lifts, colonoscopies and oral surgery should be held to higher standards than abortion procedures.

Perhaps most alarming was Dr. Wendy Klein, from the VCU School of Medicine, who claimed, "Abortion is the safest medical procedure you can have!" The opposition to HB 393 cited the National Abortion Federation, an association that oversees seven abortion centers in Virginia, as a reliable self-regulatory organization. However, as I clarified in my testimony, this is far from reassuring. For example, NAF requires only a midlevel clinician (not necessarily a physician) to perform an abortion procedure. Fortunately, Virginia Code protects against this, but clearly NAF guidelines, as exemplified in this one standard, cannot be assumed sufficient!

Countering these arguments, in addition to Delegate Lohr and The Family Foundation, were a number of organizations that clearly outnumbered the pro-abortion forces, including representatives from the Governor’s Office, the Attorney General’s Office, Virginia Society For Human Life and the Virginia Catholic Conference.

Dr. Klein was at it again on HB 334, patroned by Delegate Bob Marshall (R-13, Manassas). This bill, also defeated yesterday on the exact same 11-4 vote, would bolster Virginia's informed consent law by making available to women seeking abortions statistics that show the difficulties of future pregnancies and births to women who previously had abortions (as much as eight times higher). She said that bill presumes women can't figure out things for themselves. So, she admits there are risks!

Even more shocking was Senator Dick Saslaw's (D-35, Springfield) response to the citation of the House of Delegates vote on this bill (95-2). He said a member told him it got that many votes because many who voted for it knew "we'd kill it over here." Aside from the crass cynicism and joy he seemed to take in those seemingly vindictive words, if Senator Saslaw is correct, it shows that an overwhelmingly large amount of Virginians favor this type of legislation and that their representatives are afraid to vote against their constituents' interests. The pro-abortion crowd can't have it both ways.

While it is difficult to stand before this committee year in and year out with such reasonable legislation only to see it killed, we appreciate the legislators who are willing to continue to force lawmakers to go on record opposing this legislation. The Family Foundation remains committed to fighting for pro-life and pro-family issues.

As Crossover Approaches, It's All To Play For

Tuesday is "crossover" day in the General Assembly, the day when work on bills from their respective chambers must be complete. The past two weeks have been long and intense, as you have been able to tell by reading this blog and by the number of e-mail alerts you've received. (If you don't receive our e-mail alerts, you should. They are informative, fun, fast and have received critical acclaim. People tell us that when they read them, they feel as if they were in the committee room. Click here to sign up.)   Several bills in The Family Foundation's bill profile were acted on recently. Here's an update:

SB 1270: Abortion Center Licensing Requirement (Support)

This legislation, introduced by Senator Jill Vogel (R-27, Winchester), would have required abortion centers to become licensed, have life-saving equipment in their facilities and submit to one yearly inspection. It was drafted to make abortion centers safer for the women who visit them. In fact, the original bill had numerous regulations, many of which pro-abortion activists claim are onerous and designed put these centers out of business. Anticipating this argument, Senator Vogel stripped down the bill to the three simple requirements listed above.

The fact is that there are several types of medical facilities that are much less invassive, such as podiatry centers; and altogether different types of facilities, such as puppy mills, that have much tougher regulations. Furthermore, all medical disciplines and specialities have oversight by peer review boards, with the notable exception of abortionists.

Finally, the pro-abortion side traditionally argues that the Board of Medicine regulates Virginia's abortion clinics. Fine. Senator Vogel presented SJ 276, which the Senate passed unanimously last year, that slams the Board of Medicine, citing a 1999 JLARC report, that discovered "the Board of Medicine  took too long to resolve cases, did not adequately protect the public from substandard practice by doctors, and did not handle medical malpractice cases adequately," among other charges. When confronted with its hypocrisy and the truth, the pro-abortion side did the only thing it could do — ignore it.

So, this bill, which seemed like a logical and bipartisan issue, failed in the Senate Education and Health Committee by a party line vote of 10-5. So much for "safe, legal and rare." Instead, in Virginia, abortion centers remain an exempted class, untouchable and protected by their overlords in the Senate. Read more about this issue here and see video of the Ed and Health hearing here.

SB 801: "Choose Life" License Plates (Support)

This legislation, from Senator Ken Cuccinelli (R-37, Fairfax), not only would have created "Choose Life" license plates, but would have sent part of the proceeds from the plates to pregnancy resource centers around Virginia. The bill was debated in the Senate Transportation Committee. Of course, the opposition denounced the plates, claiming they are political in nature and out of the purview for recognition.

Even more infuriating, a family practitioner unashamedly attacked crisis pregnancy centers in her testimony. The bill died in committee by a vote of 6-6 with Senators Harry Blevins (R-14, Chesapeake) and John Watkins (R-10, Midlothian) abstaining. Senator Blevins was in the room up until just before the vote and then walked out — leaving a "proxy" vote of "abstain" behind.

HB 2579: Informed Consent, Ultrasound Requirement (Support)

Delegate Kathy Bryon's (R-22, Lynchburg) bill would require abortionists to take an ultrasound and allow the woman to view it if she desires before having an abortion. The Family Foundation supports this bill not only because it would give women medically accurate information to aid their decision making, but also with hopes that more women would choose life after clearly seeing that life inside them. The House Courts of Justice Committee reported this bill 15-6. It now goes to the House floor.   

HB 2634: Providing Information on Fetal Pain

Another informed consent bill, patroned by Delegate Ben Cline (R-24, Amherst), would require that a woman be told that her unborn child could feel pain during the abortion process and provide her with information on anesthesia for the child. Again, the House Courts of Justice Committee passed this bill 17-5, and the House will vote on it this week. See some of the sub-committee debate here.  

HB 1624, HB 1625, HB 1726, HB 2385, SB 945, SB 1247:  Legislation on "Sexual Orientation" (Oppose)

With homosexual rights advocates feeling emboldened by recent election victories, every effort has been made this legislative season to make sure that the term "sexual orientation" finds its way into Virginia code. It has been attempted in every form from group life insurance and housing discrimination, to making sure that it becomes a protected class under Virginia's human rights laws. Any incremental step they believe they can take, they will. Thankfully, we can report that all efforts to expand the homosexual agenda have failed thus far, with the exception of SB 945 (life insurance). 

These battles are far from over and other skirmishes over other issues undoubtedly will materialize. If ever it was all to play for, this year's second half is it.