The U.S. Supreme Court ruled 13 months ago that same-sex couples have a fundamental right to marriage throughout the United States. But 30 states, including Virginia, still have laws on their books barring those marriages, and two Northern Virginia legislators say it’s long past time to remove them.
State Sen. Adam P. Ebbin (D-Alexandria) and Del. Mark D. Sickles (D-Fairfax) last week introduced a set of bills to begin a two-year process to repeal a constitutional amendment, passed by voters in 2006, that defines marriage as solely a union between one man and one woman.
They also want to more quickly overturn a state law that bars same-sex marriages and civil unions.
Similar efforts failed in Richmond last year and the year before, and have also been defeated in eight other states.
“The code of Virginia should accurately reflect the law of the land,” Ebbin said. “Gay and lesbian couples deserve the same respect as other citizens. . . . It’s a stain on the Constitution of Virginia, a document that guarantees liberties rather than limits them.”
Same-sex marriage has been allowed in Virginia since October 2014, when the Supreme Court declined to take up a lower court’s ruling that the state ban was unconstitutional. Less than a year later, the high court ruled that same-sex couples everywhere in the country had the right to wed.
Given those decisions, removing marriage bans from the books is largely symbolic. But those who are trying to reverse the statutes say that the symbolism is deeply powerful.
“By continuing to allow antiquated language to remain in our constitution and code, we tell the world that only certain folks are welcome here . . . and many are not fully equal under the law,” said Sickles, who, like Ebbin, is openly gay. “This is an insult to so many Virginia citizens.”
The bills have the support of Gov. Terry McAuliffe (D) but appear headed for trouble in the conservative, majority-Republican House of Delegates. A spokesman for Speaker William J. Howell (R-Stafford) said that the Virginia Code Commission has been studying how to address the state’s same-sex marriage laws in light of the Supreme Court ruling and that the work is expected to continue into 2017.
“It’s unlikely the House will consider any legislation until the Code Commission review is complete,” Howell spokesman Matthew Moran said.
Sickles said there is no reason to wait. “I have hopes with changes in society that are ever more clear, [legislators] will give it a fair hearing and people will vote their conscience,” he said.
Legislators in at least eight other states have tried to remove these types of “dead-letter” laws since the June 2015 Supreme Court ruling, said Rochelle Finzel, who tracks such legislation for the National Conference of State Legislatures.
Those efforts — in Alabama, Alaska, Florida, Georgia, Indiana, Kentucky, Missouri and Wisconsin — have either been delayed, voted down or vetoed, according to her research. Thirty states passed bans on same-sex marriage, also known as “Defense of Marriage Acts,” before the Supreme Court ruling.
In Virginia, repealing the laws that ban same-sex marriages would require a majority vote by both houses.
Getting rid of the state’s constitutional amendment would be more complicated, said Jeff Ryer, spokesman for the Senate Republican Caucus in the legislature.
A bill to repeal a constitutional amendment must pass both houses of the General Assembly with identical language in two consecutive years, with the votes separated by a legislative election.
Then the repeal must go to the voters. That means, Ryer said, that Ebbin and Sickles’s bill to overturn the constitutional amendment would have to be approved in the 2017 legislative session, then again in 2018, before being placed on the ballot for voters to decide in the fall of 2018.
“It’s not a quick process, but that’s intentional,” Ryer said.
Leaving the state bans on same-sex marriage in place could encourage opponents who hope a future, more conservative Supreme Court will revisit the issue, said Susan Sommer, the director of constitutional litigation for Lambda Legal Defense and Education Fund, a nonprofit group that focuses on lesbian, gay, bisexual and transgender legal and public policy issues.
She called the laws “an ugly vestige of a disturbing animus against gay people.”
“I can never see the courts turning back, but we do see some political discourse” encouraging officials to drag their feet when same-sex couples try to marry or exercise other marital rights, Sommer said.
Bans on same-sex marriage and civil unions can hamper efforts by same-sex couples to adopt, divorce, make medical decisions for spouses and inherit property, said A.E. Dick Howard, a University of Virginia law professor. While it is not unusual for vestiges of overturned laws to linger in state and local codes, this can cause unnecessary litigation and conflict, he said.
“There are Supreme Court rulings that are ignored in communities all around our country until someone steps forward to challenge them,” Howard said, citing the high court’s 1962 decision declaring school-sponsored prayer unconstitutional. For years, schools tried to ignore that ruling, often coming into compliance only after parents filed lawsuits, he said.
Allowing outdated legislation to linger also has an ugly history in Virginia, said Howard, a Virginia native who was the principal drafter of the modern Virginia Constitution.
“The old Virginia Constitution of 1902 said white and colored children shall not be taught in the same schools,” he recalled. “After the 1954 [U.S. Supreme Court decision] Brown v. the Board of Education, Virginia embarked on a campaign of massive resistance. . . . That legislative language was not removed until 1971. I can imagine die-hard opponents of same-sex marriage might employ similar delaying tactics.”