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Religious Tolerance logo

Virginia: Recognition of same-sex relationships & marriage equality

Part 8: 2014-MAR-JUL: Bostic v. Rainey case:
Voters support SSM. Opinion on AG's refusal to
defend same-sex marriage (SSM) ban.
Court of Appeals' pro-marriage equality ruling.

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"LGBT" is an acronym referring to the Lesbian, Gay,
Bisexual, and Transgender/Transsexual community.
SSM refers to same-sex marriage

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This topic is a continuation from the previous essay

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poll symbol2014-MAR-31: Virginia public opinion about marriage equality flip-flops:

Back in 2006, the voters in Virginia approved the Marshall-Newman Amendment to their state Constitution. It banned same-sex marriages in the Virginia, and also banned recognition in Virginia of same-sex marriages solemnized in other states.

The results of the vote on the Amendment showed that there was strong support by voters in Virginia for a ban on same-sex marriage in 2006. It was passed by a margin of 57% in favor of the ban and 43% opposed, for a margin of 14 percentage points. National public opinion polls at that time showed similar levels of support and opposition to bans on the concept of marriage equality.

However, between 2006 and 2014, public opinion has flip flopped, both nationally and in Virginia:

  • Current national polls show majority support for marriage equality at 54 to 59%.

  • A poll of Virginia voters by Quinnipiac University during 2014-MAR showed that 50% of voters support marriage for same-sex couples; 42% are opposed. 7% don't know or refused to answer. SSM support in Virginia lags national values by about 6 percentage points. That is to be expected since Virginia is a relatively conservative state. 2

Further analysis of the Quinnipiac University poll shows the usual differences among the public according to their political affiliation, gender, and age:

  • By political affiliation: Republicans: 23% in support/70% opposed; Democrats 69% in support/22% opposed; Independents: 52% support/42% opposition.

  • By gender: Men: 46% in favor, 48% opposed; Women: 54% in favor, 38% opposed.

  • By age: 18-29 years: 69% in favor; 25% opposed; years 30-49: 53% in favor; 40% opposed; years 50-64: 50% in favor; 44% opposed; years 65 and older: 35% in favor; 56% opposed. 2

The Quinnipiac University poll was conducted between 2014-MAR-18 to 24 among 1,288 voters. The margin of error is ±2.7 percentage points.

One can conclude that if the state constitutional amendment were voted upon today, it would probably fail to pass. If it were voted upon in 2016, it would almost certainly fail.

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wedding rings2014-APR-17: Three law professors offer opinion on AG Herring's refusal to defend state constitution:

Three Virginia law professors, who the Daily Press in Williambsburg describe as "notable," filed an amicus curiae brief saying that Attorney General Mark Herring has an obligation to not defend state laws that he believes violate the federal Constitution. Their brief was one of more than 50 briefs filed with the court. The lawyers are A.E. Dick Howard and Daniel R. Ortiz of the University of Virginia, and Carl W. Tobias from the University of Richmond. The brief says, in part:

"Public officials who swear to defend both [federal and state] constitutions owe their first loyalty to the Constitution of the United States. An Attorney General is not an automaton who must blindly support Virginia law, especially when he concludes that it conflicts with the [U.S.] Constitution as the Supreme Law.

Peter Dujardin, writing for the Daily Press, noted that:

"... according to the professors' brief, the federal constitution — ratified by Virginia in 1788 — includes the provision that the federal constitution supersedes state laws. And even Thomas Jefferson, the brief says, contended that state executives should not enforce laws they deem unconstitutional.

'Attorney General Herring did not take this dramatic an approach,' the professors' brief says. 'Instead, he has continued to enforce the Virginia law while arguing (in court) that it violates the Constitution.

The professors also cite four instances since 1996 in which Republican attorneys didn't defend state laws or policies in court.

'If the attorney general's analysis shows that a law is unconstitutional, he has a legal obligation to not defend it.' former Attorney General Ken Cuccinelli said last August, of his decision not to back a new state law allowing the state to take over a city's failing school system.

'It is, and always has been, the prerogative and duty of Virginia's chief legal officer to honor his ultimate duty to the (federal) Constitution when deciding whether to defend a law's constitutionality," the professors' brief says." 1

The professors' opinion is shared by most constitutional experts, but is strongly opposed by many religious and social conservatives. The latter sincerely believe that an amendment to a state constitution passed by the voters trumps the U.S. Constitution in cases where the amendment and federal constitution are in conflict. More details.

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gavel2014-JUL-28: Court of Appeals issues ruling on same-sex marriage:

As a USA Today evening news roundup stated: "Another one bites the dust." 3

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, VA, ruled on the Bostic v. Rainey case. As expected, they upheld the decision of a Virginia federal District Court issued during 2014-FEB.

Their ruling will not take effect until at least 2014-AUG-18 to give the defendants and their lawyers time to decide whether to appeal the decision of the panel to either the full Court of Appeals or to the U.S. Supreme Court. The 4th Circuit Court may decide to stay its decision.

This makes a total of 18 federal District Court rulings and three U.S. Circuit Court of Appeals rulings that have dealt with same-sex marriage bans since 2013-JUN-26. That was when the U.S. Supreme Court handed down its ruling in Windsor v. United States. It declared Section 3 of the federal Defense of Marriage Act to be unconstitutional, and required the federal government to start recognizing same-sex marriages in those states where SSM had been legalized. The Supreme Court's ruling was based on the Due Process and Equal Protection clauses in the 14th Amendment of the U.S. Constitution.

All of the lower courts have followed the Supreme Court's lead and have also based their rulings on one or both of these clauses. All of their rulings, without exception, have favored the legalization of same-sex marriage within their jurisdictions, Most are stayed pending appeals. Thus same-sex couples may not yet marry in these states,

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Peter Dujardin, "Law professors bolster Herring's same-sex marriage stance," Daily Press, 2014-APR-18, at:
  2. "... Young Voters Drive Support For Gay Marriage To 50%," Quinnipiac University, 2014-MAR-31, at:
  3. "Virginia declares state ban on gay marriage unconstitutional." USA Today, 2014-JUL-28, at:

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How you got here

Site navigation: Home > Homosexuality > Same-sex marriage > Menu > Virginia > here

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Copyright © 2014 by Ontario Consultants on Religious Tolerance
Originally written: 2014-APR
Latest update: 2014-JUL-29
Author: B.A. Robinson

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