Same-sex marriage in Virginia
|Legal recognition of
*Not yet in effect
Same-sex marriage in Virginia is currently not legal in the state. On January 14, 2014, Judge Arenda L. Wright Allen, of the United States District Court for the Eastern District of Virginia, declared Virginia's statutory and constitutional ban on same-sex marriage is unconstitutional. The case, Bostic v. Rainey, has been stayed pending appeal. Both Virginia Governor Terry McAuliffe and Attorney General Mark Herring have both refused to defend Virginia's ban on same-sex marriage in court.
On February 4, 1997, the Virginia State Senate, by a 37-3 vote, approved of a bill banning recognition from other jurisdictions of same-sex marriages and "any contractual rights created by such marriage". On February 19, 1997, the Virginia House of Delegates, by a 81-8 vote, approved of the bill. On March 15, 1997, Governor George Allen signed the bill into law, which went into effect on July 1, 1997.
Arlington County announced plans in May 1997 to modify its employee health plan so that same-sex partners could gain coverage, and on March 12, 1998, three local taxpayers asked the Arlington County Circuit Court to stop the county from doing so. The Circuit Court agreed and on appeal the Supreme Court of Virginia ruled in Arlington County v. White on April 21, 2000, that local governments are subject to state statutes and prohibited from expanding employee health insurance benefits beyond spouses or financial dependents.
On March 10, 2004, the Virginia State Senate, by a 28-10 vote, approved of a bill prohibiting civil unions or similar arrangements between members of the same sex, including arrangements created by private contract. On March 11, 2004, the Virginia House of Delegates, by a 77-21 vote, approved of the bill. On April 15, 2004, the Virginia House of Delegates received the Governor's recommendations on the bill. On April 21, 2004, the Virginia House of Delegates rejected Governor's recommendations, by a vote of 35-65. That same day, the Virginia House of Delegates, by a 69-30 vote, approved of a bill prohibiting civil unions or similar arrangements between members of the same sex, including arrangements created by private contract without the Governor's recommendations. That same day, the Virginia State Senate, by a 27-12 vote, approved of the bill. The bill became law without the Governor's signature, and went into effect on July 1, 2004.
On February 5, 2007, the Virginia House of Delegates voted 97-0 in favor of a bill that would extend hospital visitation rights to same-sex couples through a designated visitor statute. On February 20, 2007, the Virginia State Senate voted 40-0 in favor of the bill. On March 26, 2007, Governor Tim Kaine signed the bill into law, which went into effect on July 1, 2007.
In December 2009, Governor Tim Kaine started a process designed to extend employee health benefits to the same-sex partners of the state's employees. After Bob McDonnell became governor in January 2010, he asked Attorney General Ken Cuccinelli for a legal opinion on such an extension of benefits, and Cuccinelli issued a legal opinion that the anticipated change to the state's health plan required authorizing legislation. His ruling ended the administrative process Kaine had initiated.
On February 3, 2014, the Virginia House of Delegates voted 65-32 in favor of a bill that gives the Virginia General Assembly the right to defend a provision of the Constitution of Virginia that is contested or constitutionality questioned if the Governor or Attorney General choose not to defend the law. On February 21, 2014, the Virginia State Senate Committee on Rules, voted 12-4 in favor of it being passed by indefinitely in rules, which effectively killed the bill in the session.
On February 26, 2005, the Virginia House of Delegates voted 79-17 in favor of constitutional amendment, known as the Marshall-Newman Amendment, that would ban same-sex marriage and any "legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage." That same day, the Virginia State Senate voted 30-10 in favor of the constitutional amendment. On January 13, 2006, the Virginia House of Delegates voted 73-22 in favor of the constitutional amendment. On February 17, 2006, the Virginia State Senate voted 29-11 in favor of the constitutional amendment. On November 7, 2006, voters approved a constitutional amendment. The amendment took effect on January 1, 2007.
In Virginia, one U.S. district court has found the state's ban on same-sex marriage unconstitutional, and this decision is under appeal. Another same-sex marriage case in U.S. district court has stayed proceedings until the appeal in the first case is resolved:
Bostic v. Schaefer
- This case was previously styled as Bostic v. McDonnell and as Bostic v. Rainey before being appealed.
|Bostic v. Schaefer|
|United States Court of Appeals for the Fourth Circuit|
|Full case name||Timothy B. Bostic, et al.,
Plaintiffs - Appellees,
Christy Berghoff, on behalf of themselves and all others similarly situated; et al.,
Janet M. Rainey, in her official capacity as State Registrar of Vital Records,
George E. Schaefer, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court,
Defendant - Appellant; et. al.,
Intervenor - Defendant.
|Date decided||Appeal in progress; argued May 13, 2014|
|Judge sitting||Paul Niemeyer,
Roger Gregory, and
Henry F. Floyd, U.S. Circuit Judges
|Prior actions||Judgment for plaintiffs sub. nom. Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014)|
On July 18, 2013, two gay men filed a lawsuit, in the U.S. District Court for the Eastern District of Virginia challenging the state's ban on same-sex marriage. It named Virginia Governor Bob McDonnell as the principal defendant. After McDonnell left office in January 2014, the case was restyled as Bostic v. Rainey, with Janet Rainey, the state registrar of vital records, as lead defendant. A lesbian couple, married in California and parents of a teenager, joined the case as plaintiffs. On September 30, the American Foundation for Equal Rights attorneys Theodore Olson and David Boies joined the plaintiffs' legal team. On January 23, 2014, less than two weeks after taking office, Virginia Attorney General Mark Herring announced that his office would no longer defend the state in Bostic and would argue for the plaintiffs instead. Governor Terry McAuliffe supported him. Judge Arenda L. Wright Allen heard oral arguments on February 4, 2014, with attorneys for the Clerk of the Circuit Court for the City of Norfolk defending the state's ban on same-sex marriage.
District court ruling
On February 13, Judge Wright Allen ruled that Virginia's statutory and constitutional ban on same-sex marriage is unconstitutional, Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014). She held that marriage is a fundamental right, that a limitation on the right to marry is therefore subject to strict scrutiny, meaning that "compelling state interests" are required to justify it. She found that Virginia's arguments in support of its ban on same-sex marriage failed to meet that standard of review, and that they did not even pass rational basis review, the least demanding judicial standard. She stayed enforcement of her ruling pending appeal as the state had requested. The decision at the time "represented the strongest advance in the South for advocates of gay marriage."
Court of Appeals action
On March 10, the Fourth Circuit Court of Appeals allowed the couples in another case, Harris v. McDonnell, represented by Lambda Legal and the American Civil Liberties Union (ACLU), to intervene in Bostic. The attorneys who filed the appeal in Bostic had opposed allowing them to intervene. The court set a briefing schedule for the case, now styled as Bostic v. Schaefer and docketed as case number 14-1167, to be completed by April 30, with arguments held on May 13, 2014.
Arguments in the Fourth Circuit were held before Circuit Judges Roger L. Gregory, Paul V. Niemeyer, and Henry F. Floyd, and was characterized as "sharply divided," with the first two judges having vast differences in opinion on the case. The third judge, Floyd, stayed on the sidelines. Niemeyer maintained that the fundamental right to marriage, as recognized by the U.S. Supreme Court, is that of a "union of husband and wife," Of same-sex relationships and unions, he said: "It doesn’t work biologically," and calling it marriage is to "play with the language." In complete contrast, Gregory questioned: "Why do you want to deny [children] all these warm and wholesome things about marriage? ... You think the child loves these parents any less because they are same-sex parents?" and demanded the defending lawyer to answer.
Ultimately, Gregory viewed the case as a "way station" to the Supreme Court, Niemeyer noted "Maybe we should just say, 'We pass,' and let the case go on," and Floyd seeing the Windsor case as abandoning the principle of federalism.
Harris v. Rainey
On August 1, 2013, two lesbian couples, one of which married in the District of Columbia in 2011, filed a lawsuit, Harris v. McDonnell, in U.S. District Court for the Western District of Virginia represented by Lambda Legal and the ACLU. They challenged both the state's denial of marriage rights to same-sex couples and its refusal to recognize same-sex marriages from other jurisdictions. They asked the court to recognize their suit as a class action on behalf of all same-sex couples in Virginia who seek to marry or have married elsewhere.
Pretrial proceedings and stay
On December 23, Judge Michael F. Urbanski removed the governor as a defendant, leaving the state registrar of vital records and the county clerk who denied one couple a license. On January 31, the judge certified the case as a class action, now restyled as Harris v. Rainey. On March 31, Judge Urbanski ordered Harris stayed until the Fourth Circuit issues a decision in Bostic.
A May 2011, Washington Post poll found that 47% of Virginians favored the legalization of same-sex marriage, while 43% opposed it and 10% had no opinion. It found 55% favored allowing same-sex couples to adopt children, while 35% opposed that and 10% had no opinion. The same poll found that 64% of residents from Fairfax County, Arlington County, Alexandria, and Fairfax support same-sex marriage; 63% of residents from the counties of Loudoun, Prince William, Stafford, Fauquier, Culpeper, Madison, Rappahannock, Clarke, and Frederick, as well as the cities of Manassas, Manassas Park, and Winchester support same-sex marriage, while only 42% of the rest of Virginia supports same-sex marriage.
A July 2011, Public Policy Polling survey found that 35% of Virginia voters thought that same-sex marriage should be legal, while 52% thought it should be illegal and 14% were not sure. A separate question on the same survey found that 65% of Virginia voters supported the legal recognition of same-sex couples, with 32% supporting same-sex marriage, 33% supporting civil unions but not marriage, 33% favoring no legal recognition and 2% not sure.
A December 2011, Public Policy Polling survey found that 34% of Virginia voters thought that same-sex marriage should be legal, while 53% thought it should be illegal and 13% were not sure. A separate question on the same survey found that 59% of Virginia voters supported the legal recognition of same-sex couples, with 31% supporting same-sex marriage, 28% supporting civil unions but not marriage, 38% favoring no legal recognition and 3% not sure.
A May 2012, Public Policy Polling survey found that 41% of Virginia voters thought that same-sex marriage should be legal, while 50% thought it should be illegal. 9% were not sure. When civil unions were thrown into the mix, 65% of voters favored some form of legal recognition for gay couples.
A June 2012, Washington Post poll found that 49% of Virginians favored the legalization of same-sex marriage, while 40% opposed it and 11% had no opinion.
A Washington Post poll taken between April and May 2013, found that 56% of registered voters thought same-sex marriage should be legal, while only 33 percent thought it should be illegal, and 10% had no opinion.
A Greenberg Quinlan Rosner Research and Target Point Consulting poll taken in June 2013 found that 55% of Virginians support same-sex marriage. Among respondents below the age of 30, support is at 71%.
A July 2013, Quinnipiac poll found that 50% of Virginians support same-sex marriage while 43% oppose it.
A September 2013 Marist poll found 55% of Virginia residents support gay marriage, while 37% oppose it.
An October 2013 poll by Christopher Newport University found that 56% of likely voters oppose the ban on same-sex marriage, compared to 36% who favor it.
A December 2013 Public Religion Research Institute survey found that 52% of Virginia residents support same-sex marriage, while 42% opposed, and 6% didn't know or refused to answer.
A March 2014 Quinnipiac poll found that 50% of Virginians support same-sex marriage while 42% oppose it.
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