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Virginia Legislature Fails to Remove Same-Sex Marriage Ban from State Constitution

November 2nd, 2022

Florida's controversial "Don't Say Gay" bill is headed to court after a group of students, parents and teachers filed a lawsuit in federal court.
Last year, bills were passed to begin repealing Virginia’s invalid same-sex marriage ban that remains in its state constitution.

In 2015, the United States Supreme Court issued the landmark decision of Obergefell v. Hodges, which legalized same-sex marriage throughout the country. Despite this Supreme Court decision, discrimination against same-sex couples remains in countless state constitutions, in the form of bans on same-sex marriage. 

Virginia’s state constitution is one of the harshest when it comes to same-sex marriages. A Washington Post op-ed once compared the state constitution to a Jim Crow law. While a ban against same-sex marriage has not been enforceable for almost a decade, it remains part of the state’s constitution.

The Push to Update the State Constitution

The Code of Virginia first confined legal marriage in the state to different-sex couples in 1975. Then in 1997, the state’s General Assembly passed a statute denying recognition of gay marriages that are performed in other states. The state then moved to put a ban on same-sex marriage into the state constitution, which occurred during two subsequent legislative sessions in 2005 and 2006, and then passed by a vote of the people in 2006.

In February 2021, after democrats seized control of the state legislature, two bills were passed in the Virginia house and senate to begin repealing the state’s invalid same-sex marriage ban that remained in its state constitution despite having been superseded by Obergefell. Both bills passed but faced substantial opposition. 12 Republicans voted against the measure in the Senate, while another 33 Republicans voted against the measure in the house. While removing the law from Virginia’s constitution would have no immediate effects, this change would mean that same-sex couple’s marriage rights would remain protected even if the Supreme Court later overturns its Obergefell ruling. Preserving the right to continue to deny same-sex marriage is the only potential reason why lawmakers would vote against the measure.

What makes repealing the ban particularly complex is that the legislature needed to vote a second time to remove the ban and then place the change on the ballot for a public vote, but republicans took over in the Virginia House of Delegates last year, and the bill was unable to move out of committee so that it could pass a second time.

Response to the Statute’s Potential Removal

Democrats in Virginia had moved to advance LGBTQ rights after gaining control of the state’s General Assembly in 2019. In 2020, the Virginia legislature banned conversion therapy on minors and additionally passed the Virginia Values Act, which made Virginia the first southern state to pass an LGBTQ+ protection ordinance. Countless Democratic legislators have hailed this change to the Virginia constitution as a vital one. 

Two Republican legislators are the only ones who attempted to answer any questions about the bill. When questioned, both legislators provided uncertain and circular arguments about why they declined to vote to remove the statute.

The Future of Virginia’s State Constitution

To finally remove the ban, the Virginia legislature will have to vote again and then place it on the ballot for a public vote, but with republicans in control of the state house, that seems unlikely. Nevertheless, a 2021 poll from the Public Religion Research Institute showed that 71% of Virginians supported same-sex marriage. The Movement Advancement Project reports that 30 states still have same-sex marriage bans in their constitutions. Additionally, 16 states contain measures banning civil unions and two states prohibit any recognition of same-sex marriage.

This past July, Virginia Governor Glenn Youngkin, a republican, claimed that the state actually protects same-sex marriage, when it definitely does not. Democrats responded that Youngkin was either ignorant of the state constitution or chose to lie. Indeed, if the Supreme Court were to overturn the Obergefell decision, which at least one Justice has suggested they do, Virginia’s constitutional ban on same-sex marriage would once again go into effect.

The Goal of the Universal Life Church’s Blog

Countless changes involving same-sex rights will likely occur over the next decade. Each week, the Universal Life Church’s blog focuses on documenting the most noteworthy of these cases. We strive to do so in a way that objectively examines both sides and which can be easily understood by readers.

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