As you may have already heard, the U.S. District Court for the Eastern District of Virginia has ruled that Virginia’s voter-approved 2006 Marshall-Newman Amendment (aka the Virginia Marriage Amendment) is unconstitutional. The Amendment modified the Constitution of Virginia to (a) prevent the legal recognition of any union or partnership between same-sex couples, and (b) define “marriage” as exclusively between one man and one woman. In Bostic v. Rainey, decided on February 13, 2014, U.S. District Court Judge Arenda Wright Allen found the Virginia ban on same-sex marriage to violate the Due Process and Equal Protection provisions of the Fourteenth Amendment to the U.S. Constitution. The judge wrote in her opinion that “[g]overnment interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.”
The ruling striking down the Virginia same-sex marriage ban comes less than eight months after the U.S. Supreme Court struck down part of the federal Defense of Marriage Act (DOMA) as unconstitutional. In U.S. v. Windsor, the Supreme Court found Section III of DOMA to violate the Equal Protection Clause of the Fifth Amendment. Thus, the federal government could no longer define “marriage” strictly as a union between a man and a woman, and could no longer restrict federal marriage benefits to solely opposite-sex couples. The Court’s decision affected more than 1,000 federal statutes. However, the Supreme Court’s decision only affected federal recognition of same-sex marriages; it did not affect individual state recognition and it did not force states to recognize same-sex marriages or civil unions entered into in other states.
The decision in U.S. v. Windsor ignited a chain reaction of constitutional challenges in the states. Presently, there are 47 same-sex marriage lawsuits pending in 24 states, and Bostic v. Rainey, out of Norfolk, Virginia, is one of them.
The plaintiffs in Bostic v. Rainey challenged the constitutionality of Virginia’s ban on same-sex marriage, asserting that the denial of marriage licenses to same-sex couples infringes on their Fourteenth Amendment rights to due process and equal protection under the laws. The plaintiffs in the case are two Virginia same-sex couples: (a) Timothy Bostic and Tony London, together for 20+ years, and (b) Carol Schall and Mary Townley, together for 30 years, married in California in 2008, and parents to a teenage daughter. The couples, due to their inability to marry in Virginia (or enter into marriages in other states that Virginia would recognize), have been denied Virginia state marriage benefits, as well as favorable income and estate tax treatment. Additionally, Carol Schall has been deprived of the right to adopt her teenage daughter, who is the biological offspring of Mary Townley, but who was conceived during the couple’s relationship according to their plan to build a family.
The suit in Bostic v. Rainey was filed against the Clerk of Court for Norfolk Circuit Court, George Schaefer, and the Clerk of Court for Prince William County, Michele McQuigg, who moved to intervene as a defendant. The defendants maintain that Virginia has the “right to define marriage according to the judgment of its citizens” (the 2006 Virginia Marriage Amendment passed with 57% of the public vote).
Can Same-Sex Couples Now Marry in Virginia?
No, not yet. The Clerks of Court in Norfolk and Prince William County are expected to appeal the ruling in Bostic v. Rainey to the U.S. Court of Appeals for the Fourth Circuit. When Judge Wright Allen struck down the Virginia Marriage Amendment as unconstitutional, she issued a stay of her order while the matter is appealed. This means that same-sex couples will not be able to marry in Virginia until the appeal is fully resolved—which may not ultimately be until the U.S. Supreme Court weighs in.
If you are in a same-sex relationship in Virginia and have legal questions regarding property or support rights, child custody or adoption, or how the recent court decisions may affect your rights, contact us to schedule a consultation with one of our experienced family law attorneys today.