The Washington PostDemocracy Dies in Darkness

Virginia House panel strikes down effort to remove same-sex marriage ban from constitution

Del. Christopher T. Head (R-Botetourt) in Richmond on Feb. 8. (Steve Helber/AP)

A Virginia House subcommittee struck down legislation Tuesday that would have given voters a chance to decide if the state should remove a now-defunct provision in the state constitution banning same-sex marriage.

In 2006, Virginians passed a measure, known as the Marshall-Newman Amendment, that banned same-sex marriage by defining marriage in the constitution as “only a union between one man and one woman.” That language remains, even after the U.S. Supreme Court legalized same-sex marriage in 2015 and struck down state laws banning it.

The GOP-led House Privileges and Elections Subcommittee on Tuesday voted 6 to 4 against a resolution and bill that would have put a question on the November ballot asking voters whether the provision should be removed with a new amendment.

“Our Marshall-Newman Amendment was no longer enforceable,” said Del. Mark D. Sickles (D-Fairfax), the sponsor of the legislation. “Yet it sits in its utter ugliness in our constitution.”

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To change the state constitution, a proposed amendment must pass through the General Assembly twice before going to a public vote in a general election. The amendment to remove the marriage provision passed both chambers of the Democratic-controlled legislature last year, but the effort faces pushback since Republicans’ House takeover. The House will probably revisit the issue if the Democratic-controlled Senate passes the matching amendment, proposed by Sen. Adam P. Ebbin (D-Alexandria).

Sickles’s amendment would have replaced the portion of the constitution defining marriage as being between one man and one woman with language that reads: “The right to marry is a fundamental right, inherent in the liberty of persons, and marriage is one of the vital personal rights essential to the orderly pursuit of happiness.”

Del. Christopher T. Head (R-Botetourt), chairman of the subcommittee that voted down the legislation, declined to comment on his vote.

One GOP staffer, speaking on the condition of anonymity to discuss internal conversations, said Republicans were concerned that the bill’s language was imprecise. If the proposed amendment simply removed the ban on same-sex marriage, or specified that marriage was between two consenting adults, it might get some GOP support, the aide said.

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But the current proposed language, the aide said, only creates a right to marriage and could open the door to polygamy. During the public comment period in the subcommittee meeting, a representative from the Family Foundation of Virginia raised similar concerns, including the possibility of child marriage.

Virginia has laws prohibiting polygamy, intrafamily marriage and child marriage.

Sickles said he had heard talk of such objections to the amendment but did not believe it. “Polygamy is against the law in Virginia,” he said. Republicans “admitted to me afterward that they wouldn’t support this … regardless of that language. They make this stuff up to make what they’re doing seem more reasonable.”

Del. Dawn M. Adams (D-Richmond), the first openly gay woman to serve in the Virginia General Assembly, spoke during the subcommittee meeting, saying it was offensive to put same-sex marriage alongside the other types that are specifically outlawed in Virginia.

“This matters to people, and it’s not hurting anybody, and it’s not hurting God,” Adams said through tears. “And it’s offensive to be lumped into polygamy and all kinds of other crazy stuff.”

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Ebbin said he was confident that his Senate version could reach the House later in the legislative session. Tuesday’s vote, however, cast doubt on the future of that bill.

“Based on today’s action, it looks like it’s a bit of an uphill slog. But I’m not prepared to give up,” said Ebbin, who in 2003 became the first openly gay person elected to Virginia’s General Assembly. “LGBTQ people deserve equality under the law, and we deserve to be included in the laws as the Supreme Court has recognized.”

Democratic lawmakers and LGBTQ rights groups have discussed the possibility of pressuring more moderate Republicans from suburban parts of the commonwealth to support a constitutional amendment. Only three members of the GOP would need to sign on to ensure its appearance on the ballot in November.

But the question of same-sex marriage has in recent years been a subject of debate among Virginia Republicans. Even as some GOP lawmakers have offered their support for bills fighting housing discrimination, LGBTQ rights have remained a tough sell among more conservative members of the party.

In 2020, former congressman Denver Riggleman (R) lost a primary challenge from his right after he presided over a same-sex wedding. And the following year, an anonymous cellphone text was sent to Republicans at the party’s convention accusing one candidate for lieutenant governor of being “a gay Democrat.”

Sickles said many people have changed their minds about same-sex marriage since Virginia passed the Marshall-Newman Amendment. He said Republicans are denying voters “a chance to make up for something that they wish they hadn’t done in 2006.”

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During the subcommittee meeting, Jeff Caruso of the Virginia Catholic Conference spoke against the legislation. Virginia voters had decided upon the provision, Caruso argued, and if federal laws were to change, Virginia wouldn’t be able to go back to the law it had before.

“In light of current federal law, it is a dormant provision, but federal laws can change. A state law that is dormant now would become effective again if the federal law changes, but only if the state law remains on the books,” Caruso said. “If you believe as we do, that marriage is the union of one man and one woman and that we should preserve this original design, please vote to continue reflecting that in our state constitution.”

Others spoke in favor of the legislation, calling it a way to better reflect equality under the commonwealth’s constitution.

“Marriage equality is a law of the land reflected in the Virginia code,” said Narissa Rahaman, executive director of Equality Virginia, “and it’s time for the Virginia constitution to reflect that reality.”