Same-sex marriage in Virginia

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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.[1] Both Virginia Governor Terry McAuliffe and Attorney General Mark Herring have both refused to defend Virginia's ban on same-sex marriage in court.[2][3]

Statutory ban[edit]

The Code of Virginia was amended to prohibit marriage between persons of the same sex in August 1975.[4]

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.[5][6]

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[7] 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.[8][9]

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.[10]

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.[11]

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.[12] 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.[13]

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.[14]

Constitutional ban[edit]

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.[15] 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.[16] On November 7, 2006, voters approved a constitutional amendment. The amendment took effect on January 1, 2007.[17][18]

Federal lawsuits[edit]

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[edit]

This case was previously styled as Bostic v. McDonnell and as Bostic v. Rainey before being appealed.
Bostic v. Schaefer
US-CourtOfAppeals-4thCircuit-Seal.png
No. 14-1167
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.,
Intervenors
v.,
Janet M. Rainey, in her official capacity as State Registrar of Vital Records,
and
George E. Schaefer, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court,
Defendant - Appellant; et. al.,
Defendants,
Michele McQuigg,
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
Case history
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.[19] 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.[20] A lesbian couple, married in California and parents of a teenager, joined the case as plaintiffs.[21] On September 30, the American Foundation for Equal Rights attorneys Theodore Olson and David Boies joined the plaintiffs' legal team.[22] 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.[2] Governor Terry McAuliffe supported him.[3] 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.[23]

District court ruling[edit]

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).[1] 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.[24] She stayed enforcement of her ruling pending appeal as the state had requested.[25] The decision at the time "represented the strongest advance in the South for advocates of gay marriage."[26]

Court of Appeals action[edit]

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.[27]

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.[28]

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.[28]

Harris v. Rainey[edit]

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.[29]

Pretrial proceedings and stay[edit]

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.[20] On January 31, the judge certified the case as a class action, now restyled as Harris v. Rainey.[30] On March 31, Judge Urbanski ordered Harris stayed until the Fourth Circuit issues a decision in Bostic.[31]

Public opinion[edit]

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.[32] 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.[33]

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.[34]

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.[35]

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.[36]

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.[37]

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.[38]

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%.[39][40]

A July 2013, Quinnipiac poll found that 50% of Virginians support same-sex marriage while 43% oppose it.[41]

In an August 2013 Emerson College poll, 38% of Virginians support same-sex marriage while 48% opposed it and 14% were undecided.[42]

A September 2013 Marist poll found 55% of Virginia residents support gay marriage, while 37% oppose it.[43]

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.[44]

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.[45]

A March 2014 Quinnipiac poll found that 50% of Virginians support same-sex marriage while 42% oppose it.[46]

See also[edit]

References[edit]

  1. ^ a b Snow, Justin (February 13, 2014). "Federal court rules Virginia same-sex marriage ban unconstitutional". Metro Weekly. Retrieved February 13, 2014. 
  2. ^ a b Perallta, Eyder (January 23, 2014). "Virginia's New Attorney General Will Not Defend Gay-Marriage Ban". NPR. Retrieved January 23, 2014. 
  3. ^ a b Michael Muskal (February 4, 2014). "Gay-marriage battle unfolds in Virginia, Utah courts". Los Angeles Times. 
  4. ^ "§ 20-45.2. Marriage between persons of same sex.". virginia.gov. Retrieved January 19, 2014. 
  5. ^ "SB 884 Same sex marriages.". Code of Virginia Searchable Database. Virginia General Assembly. Retrieved February 16, 2013. 
  6. ^ SB 884 Same sex marriages.
  7. ^ Davis, Patricia (March 5, 1999). "Court Finds Arlington's Benefits Policy Illegal". Washington Post. Retrieved January 23, 2014. 
  8. ^ Coolidge, David (April 27, 2000). "Virginia High Court Rejects Arlington's Domestic Partnership Policy". Catholic Herald. Retrieved January 23, 2014. 
  9. ^ "Arlington County et al. v. White et al.". Virginia Lawyer's Weekly. April 21, 2000. Retrieved January 23, 2014. 
  10. ^ "HB 751 Marriage; affirmation.". Code of Virginia Searchable Database. Virginia General Assembly. Retrieved February 16, 2013. 
  11. ^ HB 2730 Hospital regulations; provision allowing patients to receive visits from whom they desire.
  12. ^ Kumar, Antia (December 4, 2009). "Kaine plans to extend health benefits to same-sex partners". Washington Post. Retrieved June 11, 2010. 
  13. ^ Walker, Julian (February 1, 2010). "Same-sex partner benefits tossed out: Outgoing Gov. Tim Kaine proposed the policy change, but the state's new attorney general advised against it.". Roanoke Times. Retrieved June 11, 2010. 
  14. ^ HB 706 General Assembly member; legislative standing to defend laws of the Commonwealth.
  15. ^ HJ 586 Constitutional amendment; marriage may exist only between a man and woman (first reference).
  16. ^ HJ 41 Constitutional amendment (second resolution); marriage.
  17. ^ "Gay Marriage Amendment Passes in Virginia". Fox News. November 7, 2006. Retrieved January 19, 2014. 
  18. ^ VIRGINIA An Act to provide for the submission to the voters of a proposed amendment to Article I of the 3 Constitution of Virginia by adding a section numbered 15-A, relating to marriage.
  19. ^ "Gay couple from Norfolk challenges state’s same-sex marriage ban in federal court". Richmond Times Dispatch. July 24, 2013. Retrieved February 5, 2014. 
  20. ^ a b Lavers, Michael K. (January 9, 2014). "First hearing in Virginia marriage lawsuit scheduled". Washington Blade. Retrieved January 10, 2014. 
  21. ^ Wolf, Richard (December 13, 2013). "Gay couples seek court case that might reach the Supreme Court". Washington Post. Retrieved January 10, 2014. 
  22. ^ Barnes, Robert (September 30, 2013). "Lawyers Olson and Boies want Virginia as same-sex marriage test case". The Washington Post. Retrieved January 10, 2014. 
  23. ^ Wolf, Richard (February 4, 2014). "Legal fight for gay marriage reaches Virginia court". USA Today. Retrieved February 4, 2014. 
  24. ^ Bostic v. Rainey, February 13, 2014, accessed February 25, 2014
  25. ^ "Judge Declares Va. Same-Sex Marriage Ban Unconstitutional". NPR. February 13, 2014. Retrieved April 9, 2014. 
  26. ^ Sherman, Mark (Feb 14, 2014). "A changing judicial landscape for gay rights". Associated Press. 
  27. ^ Geidner, Chris (March 10, 2014). "Federal Appeals Court Sets Quick Schedule For Virginia Marriage Appeal". BuzzFeed. Retrieved March 10, 2014. 
  28. ^ a b Barnes, Robert (13 May 2014). "Appeals court judges seem sharply divided over Virginia ban on same-sex marriage". The Washington Post. Retrieved 14 May 2014. 
  29. ^ Eilperin, Juliet; Morello, Carol (August 1, 2013). "Federal suit seeks to permit gay marriage in Virginia". Washington Post. Retrieved August 3, 2013. 
  30. ^ Robertson, Gary (February 1, 2014). "Judge OKs class action status in Virginia for gay marriage lawsuit". Reuters. Retrieved February 5, 2014. 
  31. ^ Urbanski, Michael (U.S. District Judge). "Order for Stay, Harris v. Rainey (March 31, 2014)". U.S. District Court, W.D. Va. Case No. 5:13-cv-77. Scribd. Retrieved April 8, 2014. 
  32. ^ Washington Post: "Washington Post poll finds Virginians are split on gay marriage; support gay couple adoptions," May 10, 2011, accessed May 10, 2011
  33. ^ Post Store (May 10, 2011). "Virginia politics, Northern Virginia style". Washingtonpost.com. Retrieved December 5, 2013. 
  34. ^ Public Policy Polling: "Virginia opposes gay marriage, statewide politicians popular," July 29, 2011, accessed July 29, 2011
  35. ^ Public Policy Polling: "Virginia down on Cantor, favors civil unions," December 13, 2011, accessed December 13, 2011
  36. ^ "Virginia Miscellany". Public Policy Polling. Retrieved 5/4/2012. 
  37. ^ "Washington Post Poll". The Washington Post. 
  38. ^ "Virginian’s changing views on gay marriage". Washington Post. May 14, 2013. Retrieved February 15, 2014. 
  39. ^ "New Attitudes in the New Dominion". Human Rights Campaign. July 11, 2013. 
  40. ^ "Poll: Majority of Va. residents support same-sex marriage". Washington Blade. July 11, 2013. 
  41. ^ "Big Gender Gap As Dem Holds Lead In Virginia Gov Race, Quinnipiac University Poll Finds; Voters Back Same-Sex Marriage 50 - 43 Percent". Quinnipiac. July 18, 2013. 
  42. ^ "Emerson College Poll". Emerson College Polling Society. August 29, 2013. Retrieved November 2, 2013. 
  43. ^ "Marist Poll". Marist. Retrieved September 22, 2013. 
  44. ^ "Virginia Survey: 2013 Statewide Elections". Christopher Newport University. October 16, 2013. 
  45. ^ A Shifting Landscape
  46. ^ "Virginia Voters Back Medical Marijuana 6-1, Quinnipiac University Poll Finds; Young Voters Drive Support For Gay Marriage To 50%". Quinnipiac. March 31, 2014. 

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