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Religious Tolerance logo

Virginia: Recognition of same-sex relationships & LGBT equality

A more detailed introduction to the conflict
over same-sex marriage (SSM) & LGBT rights

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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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marriage image Recent history and current status of Lesbian, Gay, Bisexual and Transgender (LGBT) rights in Virginia:

The LGBT community in Virginia exists in an environment that is almost completely lacking in protections and security for themselves and their children. Loving, committed same-sex couples are considered legal strangers and are recognized only as roommates. The Marshall-Newman Amendment to the Virginia Constitution in 2006 restricted marriage to the union of one woman and one man. It outlaws civil unions and domestic partnerships. The LGBT community has no protection against discrimination in private sector employment. The state's hate crimes laws don't protect hate-driven violence based on a person's sexual orientation or gender identity.

The Marshall-Newman Amendment to the state Constitution in 2006 was passed by a margin of 57% in favor and 43% opposed, indicating strong opposition to SSM. However, support for SSM has grown since. Polls indicated supported for SSM by a 54% majority of voters nationally during 2013.

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LGBT symbol Lawsuits in federal courts to legalize SSM:

  • Bostic v. Rainey: In 2013-JUL, the first lawsuit seeking to allow same-sex couples to marry in Virginia, and to have the state recognize same-sex marriages solemnized elsewhere, was filed in the U.S. District Court for the Eastern District of Virginia by two same-sex couples.

    This case has a strong symbolic significance, because a lawsuit ironically named Loving v. Virginia started in this state many decades ago and ended at the U.S. Supreme Court. The court's decision in 1967 legalized interracial marriages across the entire U.S. Many members of the LGBT community and their supporters feel that the current drive to achieve marriage equality has many direct parallels to Loving v. Virginia.

Originally, this lawsuit was launched by the two couples using their own resources. However, the American Foundation for Equal Rights (AFER) later joined with the couples. The two attorneys who successfully argued the famous Hollingsworth v. Perry case before the U.S. Supreme Court joined the plaintiffs'team. Hollingsworth was the lawsuit that restored marriage equality to California.

By 2014-JUL, a federal District Court and later a three-judge panel of the 4th U.S. Circuit Court of Appeals had declared the 2006 amendment to Virginia's Constitution to be unconstitutional because it violates the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution. The case will almost inevitably be appealed to the full Circuit Court or to the U.S. Supreme Court. The defendants have until at least 2014-AUG-18 to decide whether to appeal.

This is the third decision in favor of marriage equality by a Circuit Court of Appeals. There is a good chance that, during the fall of 2014, the U.S. Supreme Court will declare certerari (agree to review a case) in at least one of the three lawsuits. They would then probably hold hearings in early 2015, and deliver a ruling in mid-2015 that might:

  • Legalize SSM across the entire country or

  • Prohibit SSM across the U.S. or

  • Affect the status of SSM in one or a few states.

Whatever the U.S. Supreme Court's decision, it is almost certain to be a 5:4 ruling.The stakes are very high because there are about 15 million gay and lesbian adults in the U.S., many of whom are anxious to marry a person of the same sex, gain recognition for their relationship, and gain government benefits and protections for themselves and their children. There are also about 15 million bisexual adults in the country, some of whom might also like to marry a same-sex partner for the same reasons.

  • Harris v. McDonnell: In 2013-AUG, the American Civil Liberties Union and Lambda Legal filed a second federal lawsuit to legalize SSM in Virginia. It has the same goals as Bostic v. Rainey.

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Beliefs by groups who either promote or oppose marriage equality:

  • The two groups do agree on one factor: that the definition of marriage eligibility is a responsibility of the individual states, not the federal government.

  • Groups opposing marriage equality are typically composed conservative Christians whose interpretation of the Bible leads them to believe that God created and restricted marriage only for couples composed of one woman and one man. They promote such marriages partly because it leads to what they refer to as "responsible parenting:" having children who are genetically related to both parents. That implies that parenting by:
    • same-sex couples using artificial insemination or surrogate parenting, or
    • adoption by same-sex couples, or
    • adoption by opposite-sex infertile couples

is "irresponsible parenting." They typically support their position by quoting data from public opinion polls or actual votes in plebiscites from many years in the past. Another support is found in the conclusions of the Regnerus study which is the only large study of parenting that found that same-sex parents tend to be inferior to opposite-sex parents. This study has been severely criticized by many many national professional mental health and sociological groups. One reason for the criticism is the study's miniscule sample size of only 2 sets of same-sex parents who raised children from birth to adulthood.

Groups opposed to marriage equality often hold the belief that homosexuality is a behavior, not an orientation; that it is chosen, not discovered; and that it is changeable through considerable effort and prayer. Their positions are strongly supported by Republican legislators who have held control of the Virginia Legislature for many years.

These groups generally support the concept that any amendment to a state constitution passed by the voters is binding, even if it violates the U.S. Constitution. Thus, they consider that the 2006 Marshall-Newman Amendment that bans SSM in Virginia is valid and constitutional.

  • Groups promoting marriage equality are mostly secular in nature. They strongly believe that all loving, committed couples should be free to marry, whether they are of the same or opposite sex -- subject only to the usual limitations of age and consanguinity. They view same-sex marriage as a civil rights matter. They typically support their position by quoting recent public opinion polls, and many dozens of parenting studies that have shown children raised by same-sex parents thrive as well as those raised by opposite-sex parents. They often hold the position that homosexuality is an orientation, not a behavior; that it is discovered, not chosen; and that it is fixed in adulthood. Their position is strongly supported by Democratic legislators who have held a minority position in the Virginia Legislature for many years.

    These groups generally support the concept that any amendment to a state constitution is not binding, if it violates the U.S. Constitution. They view the 2006 Marshall-Newman Amendment that bans SSM in Virginia as violating the due process and equal protection clauses in the 14th Amendment to the U.S. Constitution. Thus the SSM ban is unconstitutional and invalid.

More details on these two contrasting beliefs.

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Positions of the prior and current (2014) Attorney General in Virginia:

Prior to the 2013-NOV elections, the former Attorney General Ken Cuccinelli II (R) strongly opposed same-sex marriage and other LGBT rights. The new Attorney General, Mark R. Herring (D), announced his belief that the amendment to the state constitution is clearly unconstitutional. He is in an awkward position because his oath of office requires him to support first the U.S. Constitution, and second the the state Constitution. According to the U.S. Constitution, in the event of a conflict between the two, the U.S. Constitution takes precedence. He has decided to support the U.S. Constitution, to oppose the Marshall-Newman Amendment to the Virginia Constitution, and to support the current lawsuits seeking marriage equality.

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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-JAN-24
Latest update: 2014-JUL-31
Author: B.A. Robinson

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