In 2006, 57 percent of Virginia voters voted to add an amendment to the state constitution to ban gay marriage. There was of course no same‐sex marriage law in Virginia at the time; and in a state with a Republican legislature and judges appointed by that legislature, there was no prospect of change. But conservatives still insisted that the threat was so severe that a ban must be added to the constitution.
Virginia’s marriage ban was more sweeping than in other states. Lawyers at the firm of Arnold and Porter issued a 71‐page analysis of the amendment which concluded that the amendment could be interpreted by Virginia courts to invalidate rights and protections currently provided to unmarried couples under domestic violence laws, block private companies from providing employee benefits to domestic partners, and prevent the courts from enforcing child custody and visitation rights, as well as end‐of‐life arrangements, such as wills, trusts and advance medical directives, executed by unmarried couples.
The firm went on to say: “This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state.”
Nevertheless, the voters approved the amendment. In a few years attitudes had changed. Polls in 2012, just six years later, found that Virginians supported gay marriage by 9 points. But a constitutional amendment is hard to change when attitudes change.
Then in 2015 the Supreme Court struck down bans on gay marriage, requiring all states to perform and recognize the marriages of same‐sex couples on the same terms and conditions as the marriages of opposite‐sex couples. Virginia’s constitutional provision was thus unconstitutional and unenforceable. (In fact, the Virginia ban had ended on October 6, 2014, when the Fourth Circuit Court of Appeals struck down Virginia’s law.)
In 2016 and 2018, Virginia state senator Adam Ebbin introduced legislation to take the ban on same‐sex marriage out of the state code. Republican majorities blocked the bills.
And this week, in 2020, almost six years after the law was declared unconstitutional and unenforceable, and two months after Democrats took control of the legislature, the Virginia Senate passed Senator Ebbin’s bill by a vote of 25 to 13. Five Republicans joined the majority. Two, including the minority leader, did not vote. But 13 Republican senators, to use a hallowed Virginia phrase, stood like a stone wall against reality and voted no.
The bill is expected to pass the now‐Democratic House of Delegates and be signed by the governor.
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