Same Sex Marriage – Is Virginia Really for (All) Lovers?

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At present, the legal status of same sex marriage throughout the nation changes frequently. Keeping track of developments in each state can be challenging. Below is a quick overview of some important developments affecting the rights of same sex couples in Virginia.

1986 – In the case of Bowers v. Hardwick, the United States Supreme Court upholds a Georgia law that effectively made sexual relations between persons of the same sex a criminal offense. The effect of this ruling gives states the ability to continue to criminalize this kind of sexual conduct.

1996 – Congress passes the Defense of Marriage Act. This law essentially defines marriage as consisting of a union between a man and woman only. As a result, states may continue to deny recognition to same sex marriages. Further, same sex marriages are excluded from recognition in dealings with the federal government such as employee insurance benefits, social security benefits, the ability to file joint tax returns, and other similar matters,

2003 – The United States Supreme Court decides the case of Lawrence v. Texas. In what many legal commentators have described as the landmark case for LGBT rights, the Supreme Court reverses Bowers v. Hardwick and rules that the United States Constitution protects private, consensual sexual conduct from interference by the government. At the time Lawrence was decided, ten states (including Virginia) had laws that criminalized various sexual conduct between same sex persons.

2004 - The Virginia General Assembly enacts a law that denies recognition of civil unions or same sex marriages from other states. Contracts or any “other arrangement” that purports to “bestow the privileges…of marriage” are not to be given legal recognition in Virginia.

2006 – The Marshall-Newman Amendment is ratified by Virginia voters. As a result, the state Constitution of Virginia is amended to define marriage as a union between one man and one woman.

2013 – The United States Supreme Court, in United States v. Windsor, rules that federal interpretation of marriage under the Defense of Marriage Act as being between one man and one woman is unconstitutional.

2014 – In Bostic v. Rainey, the U.S. District Court for the Eastern District of Virginia rules that Virginia’s ban against same sex marriage is unconstitutional. While this ruling sets the stage for same sex marriage in Virginia, enforcement of the ruling has been stayed pending appeal. Oral arguments are set to be heard before the U.S. Court of Appeals for the 4th Circuit on May 13, 2014. Virginia Attorney General Mark Herring recently filed a brief in the appellate case supporting the District Court’s ruling.