Same Sex Marriage in Virginia

Posted on Nov 5, 2014 by Katie Carter

You would have to be living under a rock to have not heard anything about the Supreme Court recently.  But, just in case you do actually live under a rock, I’ll give you a quick recap.  On October 6th, the Supreme Court denied the opportunity to review seven different federal circuit court rulings that held state bans on same sex marriage violated the United States Constitution.  In case you don’t know how the Supreme Court works, when a case is appealed to it, the justices can either make a decision to hear it—or not.  If the Court decides not to hear it, the lower court’s previous ruling stands.

Since these courts held that not allowing same sex couples to be married violates the Constitution, the Supreme Court’s refusal to hear these cases means that same sex couples in these states CAN get married.

It’s an interesting choice in a lot of ways.  Of course, conservatives are acting like it’s a major win for the liberals, but, to me, at least, it really doesn’t seem that way.  If the Court had granted the writ of certiorari, agreed to hear the cases, and, ultimately, agreed with the lower courts that denying same sex couples the right to marry violates the Constitution, then same sex couples in ALL states could get married.  It would have been a landmark decision, more along the lines of Roe v. Wade and Loving v. Virginia.  Instead, the Supreme Court decided, in effect, to say nothing at all—which does allow the same sex couples in the seven states whose rulings had been appealed to get married (and probably also the states that are in the same circuit as the states whose rulings were appealed), but that’s really fairly narrow.

Since ours was one of the seven states with a case on appeal to the Supreme Court, October 6th was a pretty big deal to us, because it does mean that same sex couples can get married (and divorced) in the Commonwealth.  It’s also a big deal because, after the Supreme Court’s decision, 30 states, plus the District of Columbia, now allow same sex marriage—officially making it the majority rule in the United States.  But, still, it seems like lots of people are confused about what the Supreme Court has done and what it means.  If you’re a married, heterosexual person, it’s likely that the Supreme Court’s decision will have no impact on your day to day life whatsoever.  If you’re gay, though, and especially if you hope to marry someday, the Supreme Court’s decision is pretty epic.  It’s not just the marriage—you know, the little piece of paper that means that you and your spouse are permanently bound to each other.  It is that, of course, but it’s so much more.

    What difference does it make?

So, in the Commonwealth, as of 1:00pm on October 6th, same sex couples are officially allowed to get married, and clerks of court are now issuing marriage licenses.  Not only that, but earlier same sex marriages that were performed in other states are now recognized in Virginia.  After marriage, same sex couples are now afforded all the same rights (and, obviously, the same obligations) as all other legally married couples.  It even means that same sex couples, just like heterosexual couples, have to file married state and federal tax returns.

That’s huge!  Having the rights (and responsibilities) of married people is a really big deal, especially to people who are cognizant of exactly what they’ve been denied—access to state and federal benefits, being able to legally adopt children together (because now, with this new decision, same sex parents can obtain step parent adoptions and actually become legally recognized parents), receive health insurance benefits through your spouse’s employer, the ability to make end of life decisions for your spouse, and even (though it sounds unromantic to bring it up now) the ability to divorce.

Up until now, couples who were legally married in other states couldn’t get divorced in Virginia.  The Commonwealth, before October 6th, didn’t recognize these marriages at all.  So, even if you were married in Vermont (and could do things like file a state tax return as a married couple in Vermont), you weren’t afforded those rights once you moved to Virginia.  If things didn’t work out between you and your spouse, Virginia wouldn’t help settle the break up, either.  Because you weren’t considered to be married, you weren’t a candidate for divorce.

It may sound like a minor point (especially if you’re not the one who needs a divorce), but divorce is a major issue.  Without the right to get divorced, same sex couples were denied the help in breaking up their relationship that married heterosexual people automatically receive.  Breaking up is hard, and breaking up without being able to use the court systems is even harder.  Imagine not being able to divide your shared assets between you and go your own separate ways!  Being able to get divorced means that you have access to all sorts of things, like child and spousal support, child custody, visitation, equitable distribution (the fancy word we use in Virginia to describe property distribution), and fault-based grounds for divorce (like adultery, cruelty, apprehension of bodily hurt, desertion, abandonment, and felony conviction).

    What does the law say about same sex marriage?

There are two relevant laws in Virginia that apply to same sex marriages.

Virginia Code § 20-45.2 reads as follows:

A marriage between persons of the same sex is prohibited.  Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable.

Virginia Code § 20-45.3 reads as follows:

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited.  Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

    What happens to the laws in Virginia now?

Virginia’s ban on same sex marriage was challenged by the case, Bostic v. Schaefer, which was the appeal of Bostic v. Rainey, which the Supreme Court ultimately declined to hear.  The federal district court had ruled that the ban on same sex marriage was unconstitutional, the Fourth Circuit affirmed, and the ruling was stayed by the Supreme Court.  When the Supreme Court officially decided not to hear the cases, the lower court’s rulings were officially affirmed—making Virginia’s ban on same sex marriage unconstitutional.

Because of this ruling, our current laws violate Due Process and the Equal Protection clauses of the Constitution.

    So, what now?

It’s hard to say, exactly.  As with any Supreme Court decision, it will take time to see exactly what kind of impact the decision has on Virginia—and other states, too.  It’s pretty clear that things are changing, and changing relatively quickly, but it’s difficult to determine exactly how quickly and in exactly what ways things are changing.  We’ll have to wait and see.

If you’re in a same sex relationship, and you want to know more about what your rights are, feel free to contact our office at (757) 785-9761.  We can help you negotiate a prenuptial agreement if you’re considering marriage, enter into a nonmarital agreement if you’d prefer to not get married, or get a divorce.  You have options!