Gay Marriage and the Law in Virginia

With the Supreme Court's recent decisions in United States v. Windsor (DOMA) and Hollingsworth v. Perry, there have been some articles in Virginia about my legislation last session to remove Virginia's prohibition on gay marriage, civil unions, or any laws recognizing such unions in any way from the Constitution of Virginia. 

Nearly all of it incorrectly describes my bill as a bill to "repeal Virginia's gay marriage ban."  Maybe I'm splitting hairs, but legally, it did not achieve that.  It was the first step towards the repeal of Virginia's gay marriage ban, but passing my legislation and approval by the voters would not have "repealed" Virginia's gay marriage ban. 

There are two important issues.  First, whether Virginia allows gay marriages to take place in Virginia.  Second, whether Virginia recognizes gay marriages performed in other states.  The Supreme Court has not addressed Virginia's power to ban gay marriage.  However, United States v. Windsor puts Virginia in violation of the 14th Amendment.


In 2005, Delegate Bob Marshall and Senator Steve Newman introduced a constitutional amendment to chisel restrict the General Assembly's ability to enact future legislation affirmatively recognizing gay marriage or civil unions in any way.  That legislation passed in 2005 and passed again in 2006 and was approved by the voters in the 2006 election between George Allen and Jim Webb.

Here's the text of the amendment:

ARTICLE I
BILL OF RIGHTS

Section 15-A. Marriage.

That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

This language is a restriction on legislative power.  It is not an affirmative statement of the law.

Virginia's gay marriage ban is actually contained in 8.01-45.3 of the Code of Virginia.  This was adopted in 2004 as the campaign for gay marriage ramped up.  Here's the text:

§ 20-45.3. Civil unions between persons of same sex.

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

This is an affirmative statement of the law and an explicit ban.

When I presented my legislation in committee last session, I repeatedly pointed this out as you can see in my presentation to the right.  I told the committee that repealing the constitutional provision would not repeal the ban on gay marriage - but it would give the legislature the flexibility it needed to address the Supreme Court's coming decisions. 

The way the law stands today, the Supreme Court has not told Virginia that it must legalize gay marriage nor has it said Virginia's gay marriage ban is constitutional.  But it has effectively told Virginia that we must recognize gay marriages created in other states.  Virginia's Constitution specifically prohibits this and  puts Section 15-A of the Constitution of Virginia in violation of the 14th Amendment of the United States Constitution.

United States v. Windsor makes clear that government must recognize unions created in other states.

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.   The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. . . . DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. . . .

DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal. The principal purpose is to impose in equality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier  marriage.  The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. . . .

The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment. What has been explained to this point should more than suffice to establish that the principal purpose and he necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status  the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages. 

The judgment of the Court of Appeals for the Second Circuit is affirmed.  It is so ordered.

The due process and equal protection provisions of the 14th Amendment explicitly apply not only to the Federal Government, but also to the states. 

No state may abridge the privileges and immunities of any of its citizens, or deny them due process of law or equal protection of the laws.

The 14th Amendment contained this language to prevent southern state legislatures from economically and politically disenfranchising freed slaves after the Civil War through the Black Codes which restricted black's movement, required year-long labor contracts, prohibited gun ownership, and made Blacks incompetent witnesses in court.  Virginia can no longer marginalize gay residents. 

There is an entire moral, religious, ethical backdrop to all of this which could fill ten articles.  I'm only focusing on the basic constitutional analysis above in this article.  Aside from the legal issues, I also believe it's morally wrong to marginalize people for who they love. 

I will introduce legislation to both repeal the constitutional restriction, the gay marriage ban, and the prohibition on recognizing marriages from other states next year if I am re-elected, but the press coverage glosses over some important distinctions.