How Much Have We Lost?

Monday, September 30, 2013

Gay Marriage and the Law in Virginia: Part II

When the United States v. Windsor decision came down I posted up an article clarifying the state of the law in Virginia about gay marriage.


Today, I read a Washington Post article that said Virginia voters banned gay marriage in 2006.  Last week, Ken Cucinnelli attempted to chastise Terry McAuliffe in a debate by arguing that the Governor would not have to sign off on ban on gay marriage - both are wrong and this error continues to crop up in the press and public discussions. 

Gay marriage was prohibited in the Commonwealth by statute in 1975 when § 20-45.2 of the Code of Virginia was enacted.  It said:
§ 20-45.2. Marriage between persons of same sex.
A marriage between persons of the same sex is prohibited.
Virginia was the second state in the United States to specifically ban gay marriage following Maryland in 1973. 

Although my Lexis-Nexis subscription does not go back to 1975, I suspect that this legislation came about due to publicity about efforts by a gay couple in Colorado to force the government to recognize their marriage.  Interestingly, one of the plaintiff's recently died and his obituary is here

Here's a video of an interview of the Clerk who issued the six same sex marriage licenses in March, 1975.  Interestingly, she pointed out that because the Colorado code did not prohibit her from issuing the license, she was permitted to proceed. 

In 1975, there was also an effort to legalize gay marriage by Councilman Arrington Dixon in Washington, D.C.

The Virginia statute was amended in 1997 to prohibit Virginia from recognizing gay marriages from other states with legislation carried by Senator Stephen D. Newman.  As of July 1, 1997, it read as follows:
§ 20-45.2. Marriage between persons of same sex.
A marriage between persons of the same sex is prohibited. Any marriage 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 by such marriage shall be void and unenforceable.
Then in 2004, many states began adopting civil union laws so the Code of Virginia was amended yet again and an entirely new code section was added with legislation sponsored by Delegate Bob Marshall.
§ 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.
However, this legislation went even further purported to void contract rights and other legal benefits which caused a stir at the time because it might affect powers of attorney, advanced medical directives or estate documents.

It was after this that legislation was passed placing a constitutional amendment on the ballot.  Those bills were passed in 2005, passed again 2006, and then approved by the voters in 2006. 

The bottom line is that gay marriage has been expressly illegal in Virginia since 1975, state law has prohibited the recognition of out-of-state gay marriages since 1997, and civil unions have been prohibited since 2004.  The 2006 Constitutional amendment did not change the law in Virginia, it just made it harder to change.  State-sanctioned discrimination against gay marriages in Virginia goes back 33 years - not seven - and of course even longer if one considers the breadth of the state sodomy statute.

Additionally, absent court action, removing Virginia's ban on gay marriage requires two steps: (1) repealing § 20-45.2 and § 20-45.3 and the voters repealing § 15-A of Article I of the Constitution of Virginia. 

Hopefully, the press will start to get it right before the Courts finally get around to taking action while the legislature continues to validate discrimination in Virginia's Law.

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