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Same-Sex Marriage In Virginia: How Two New Supreme Court Decisions Might Affect Virginia Law

U.S. Supreme CourtYou may have heard the term “DOMA” at some point in passing; you may have also heard “Prop 8” at some point in passing; you may be aware that there are two “gay marriage” cases before the Supreme Court; and you may be wondering how those much-awaited court decisions could affect Virginia’s same-sex marriage topography. So, what really is DOMA, what is Proposition 8, what are the Supreme Court cases about, and how will those court decisions impact Virginia?

The Two Same-Sex Marriage Cases Now Before the Supreme Court

U.S. v. Windsor. The first case before the Supreme Court with potentially large ramifications for same-sex marriage in Virginia is U.S. v. Windsor. The question for the Supreme Court in Windsor is the constitutionality of the federal “Defense of Marriage Act” (DOMA).

Enacted on September 21, 1996, DOMA is a federal law that restricts federal marriage benefits to solely opposite-sex marriages, and requires inter-state marriage recognition of solely opposite-sex marriages. Practically speaking, this means two things.

First, under DOMA same-sex married persons are treated differently than opposite-sex married couples in areas included but not limited to: taxes on income, gifts, estates, and property; immigration; housing; federal financial aid; Social Security benefits; federal employee benefits; Veteran’s benefits; pensions and survivors benefits; educational loan programs; financial aid to family farms; and benefits to military families.

Second, under DOMA states do not have to recognize a marriage, civil union, domestic partnership, etc. of any same-sex couple entered into in another state.

The Windsor case arose when the federal government taxed a same-sex surviving spouse as if the two spouses were strangers. Edie Windsor and Thea Spyer, after a 40 year engagement, married in Canada in 2007. The couple lived in New York City, and had lived in New York City for over four decades. New York recognized the couple’s 2007 Canadian marriage.

In 2009, Thea passed away. At the time of Thea’s death, the federal government refused to recognize the couple’s marriage, and taxed Edie’s inheritance from Thea (under federal tax law, a deceased spouse can leave their assets to the surviving spouse without incurring estate taxes). The federal government refused to recognize Edie and Thea’s marriage based on DOMA.

U.S. v Windsor places squarely before the court the issue of the constitutionality of DOMA- specifically whether DOMA violates the Equal Protection Clause of the Fifth Amendment. A decision is expected in June 2013.

Hollingsworth v. Perry. The second pending Supreme Court case with potentially big implications for same sex marriage in Virginia is Hollingsworth v. Perry, which involves a constitutional challenge to California’s Proposition 8.

Proposition 8 is a state constitutional amendment to the California Constitution, passed on November 5, 2008, that declares that “only marriage between a man and a woman is valid or recognized in California.” Essentially, Proposition 8 bans gay marriage in California; both in its creation and its recognition.

Hollingsworth v. Perry raises the question whether Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment. Opponents of Proposition 8 argue that there is a fundamental right under the U.S. Constitution to gay marriage. However, whether or not the merits of the Proposition 8 case will be considered by the Supreme Court is still in question due to standing issues.

What Virginia Law Currently Says About Same-Sex Marriage

The current landscape for same-sex couples in Virginia is bleak. Virginia law both prohibits the creation of same-sex marriages or civil unions, and denies recognition to gay marriages and civil unions from other states.

First, in Virginia we have the Virginia Affirmation of Marriage Act (Va. Code § 20-45.3), which became effective July 1, 2004. The Act both (a) prohibits the creation of a civil union, partnership contract or other arrangement between same-sex couples that purports to bestow the privileges and obligations of marriage, and (b) voids and makes unenforceable any civil union or partnership entered into by same-sex couples in another state.

Second, we also have the Marshall-Newman Amendment (aka. the Virginia Marriage Amendment) to the Constitution of Virginia, which was ratified on November 7, 2006. The goal of the Virginia Marriage Amendment was/is to prevent the recognition of any legal status of unmarried individuals that intends to approximate the “design, qualities, significance, or effects of marriage,” as well as prevent the recognition of any union or partnership which is “assigned the rights, benefits, obligations, qualities, or effects of marriage.” The Amendment also defines marriage as exclusively between one man and one woman.

Will the Supreme Court Decisions Impact Virginia?

Unfortunately, it is too early to tell.

DOMA, as the federal law is now written, allows Virginia and other states to deny recognition of same-sex marriages entered into in another state, as well as denies federal marriage benefits to same-sex married persons. Depending on the Supreme Court’s ruling, and whether or not the Court elects to rule broadly or narrowly, Virginia and other states may or may not be required to recognize same-sex marriages, may or may not be required to grant same-sex marriages, and so on. Further, whether or not the Supreme Court’s ruling will force the federal government to recognize same-sex marriages for purposes of federal marriage benefits is also in question.

Suffice it to say that, if the Supreme Court rules very broadly that the DOMA and/or state measures like California’s Proposition 8 violate the Equal Protection Clauses, then challenges to the constitutionality of the Virginia Affirmation of Marriage Act and the Virginia Marriage Amendment will surely follow.

If you are in a same-sex relationship in Virginia and have legal questions regarding property or support rights, child custody or adoption, then contact us to schedule a consultation with one of our experienced family law attorneys today.

Updated on 2-15-14: Virginia Same-Sex Marriage Ban Ruled Unconstitutional