In an earlier blog-post, I apprised you of the who, what, and why of the two same-sex marriage cases before the Supreme Court—U.S. v. Windsor and Hollingsworth v. Perry. As you probably heard last week, the Court released its opinions in both cases on Wednesday, June 26th. So, what do, or don’t, these decisions mean for Virginia law?
Re-Cap of the Issues in the Two Same-Sex Marriage Cases
In U.S. v. Windsor, the Court was asked to address the constitutionality of the Defense of Marriage Act (“DOMA”), and whether or not it violates the Equal Protection Clause of the Fifth Amendment. In regards to same-sex couples, DOMA does the following: (1) restricts federal marriage benefits to solely opposite-sex couples, (2) defines “marriage” as a union between one man and one woman and defines “spouse” as a person of the opposite sex who is a husband or wife, and (3) does not require states to recognize marriages, civil unions, domestic partnerships, or any other relationship analogous to marriage entered into by a same-sex couple in another state.
In Hollingsworth v. Perry, the Court was asked to address the constitutionality of California’s Proposition 8 (a constitutional amendment to the California Constitution declaring that “only marriage between a man and a woman is valid and recognized in California”), and whether or not it violates the Equal Protection Clause of the Fourteenth Amendment.
The Court’s Rulings
In U.S. v. Windsor, the Court struck down Section III of DOMA as unconstitutional as a violation of the Equal Protection Clause of the Fifth Amendment. Thus, the federal government can no longer define “marriage” strictly as a union between a man and a woman, and can no longer restrict federal marriage benefits to solely opposite-sex couples. The Court’s decision will affect more than 1,000 federal statutes. Note however, that this decision only affects federal recognition of same-sex marriages; it does not affect individual state recognition and it will not force states, like Virginia, to recognize same-sex marriages or civil unions entered into in another state.
In Hollingsworth v. Perry, the court ruled that the proponents of Proposition 8 had no legal standing to bring the suit. This had the practical effect of allowing an earlier California appellate court ruling striking down Proposition 8 as unconstitutional to stand. Thus, based on a technicality, gay marriages will resume in California.
How Virginia Is Impacted by the Court’s Rulings:
First, I want to comment on Hollingsworth. The Court’s ruling in Hollingsworth has no impact on Virginia, or on any other state other than California. By dismissing the case for lack of standing, the Court avoided ruling on whether or not the right to marry is a fundamental right that all citizens enjoy, including the LGBT community (i.e. the Court did not rule on the constitutionality of individual state laws prohibiting creation and/or recognition of same-sex marriages).
As for U.S. v. Windsor, there is also no impact for Virginia … yet. As stated, the Court’s ruling will not require states to recognize same-sex marriages entered into in another state. The Court’s decision was premised primarily on a federalism argument, noting that the definition and regulation of marriage has traditionally been left to the authority of the individual states. As the Court stated in Windsor:
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.
To date, Virginia law: (1) prohibits the creation of same-sex unions, (2) voids and makes unenforceable any same-sex union entered into by same-sex couples in another state, (3) prohibits the recognition of any same-sex relationship analogous to marriage, and (4) defines marriage as exclusively between one man and one woman. The U.S. v. Windsor decision does not overturn any of these provisions of Virginia law.
So, although the federal government is now prohibited from treating same-sex married couples differently than opposite-sex married couples, Virginia and other individual states are not so prohibited. Until Virginia’s laws are amended or challenged in the courts, Virginia can continue to discriminate against same-sex couples. However, I would certainly predict challenges to the constitutionality of those Virginia laws in the near future, which is why I say U.S. v. Windsor has not impact on Virginia yet.
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