Franklin Dean
Same-sex marriage has been legal in Virginia since October 6, 2014, following the decision of the U.S. Supreme Court not to hear an appeal of the Fourth Circuit Court of Appeals' ruling in Bostic v. Schaefer. Despite this, the state's constitution still contains a ban on same-sex marriage, which was approved by voters in 2006. In 2022, the Republican-controlled House of Delegates rejected a proposed constitutional amendment to repeal this ban, although the state's current governor, Glenn Youngkin, has claimed that in Virginia, we actually do protect same-sex marriage.
| Characteristics | Values |
|---|---|
| Date same-sex marriage became legal | 6 October 2014 |
| Current legal status of same-sex marriage | Legal |
| Public support for same-sex marriage | 71% of Virginians support it |
| Political support for same-sex marriage | Supported by Democratic lawmakers and state senators Mark Warner and Tim Kaine |
| Native American tribes' stance on same-sex marriage | Unclear |
| Recognition of out-of-state same-sex marriages | Yes |
| Impact on family law | Affects divorce, equitable distribution, spousal support, health insurance, custody, tax, adoption, estate planning, and agreements |
| Religious exemptions | Clergy and religious organizations are exempt |
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What You'll Learn
Same-sex marriage has been legal in Virginia since 2014
Same-sex marriage has been legal in Virginia since October 6, 2014, following the decision of the U.S. Supreme Court not to hear an appeal of the Fourth Circuit Court of Appeals' ruling in Bostic v. Schaefer. This lawsuit was filed by two gay men in 2013, challenging the state's ban on same-sex marriage. Subsequently, Virginia began performing legal marriages of same-sex couples and recognizing out-of-state same-sex marriages.
Prior to 2014, Virginia had a history of prohibiting same-sex marriage. In 1975, the Code of Virginia was amended to ban marriages between persons of the same sex. Further restrictions were added in 1997 and 2004, making any arrangements between same-sex couples that granted "privileges or obligations of marriage" void and unenforceable. In 2006, voters approved an amendment to the state constitution, reinforcing the ban on same-sex marriage.
Despite the legalization of same-sex marriage in 2014, Virginia's ban on same-sex marriage remains written into the state constitution. However, it is currently moot due to the 2015 U.S. Supreme Court ruling that struck down the remaining bans across the country. In 2020, the Virginia General Assembly repealed the statutory ban on same-sex marriages, and a majority of Virginia residents, as well as both of the state's senators, support the legal recognition of same-sex marriage.
The legalisation of same-sex marriage in Virginia has had a significant impact on family law in the state. Courts have had to grapple with defining when a "marriage" occurred for same-sex couples who considered themselves married before legalisation, for the purposes of deciding issues like equitable distribution and spousal support. The Virginia statute governing equitable distribution is gender-neutral, referring to people as "spouses", indicating its applicability to homosexual couples.
While same-sex marriage is currently legal in Virginia, there have been concerns about potential threats to its legality. In 2022, Governor Glenn Youngkin stated that Virginia protects same-sex marriage, which was criticised as mostly false and disingenuous by PolitiFact. The part of Virginia's Constitution that outlaws same-sex marriage remains, and there is uncertainty about whether it could be enforced in the future. However, Republican Governor Youngkin signed a bill in 2024 ensuring that same-sex marriage will remain legal in Virginia regardless of future court decisions.
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The Virginia General Assembly repealed the ban in 2020
In 2020, the Virginia General Assembly repealed the statutory ban on same-sex marriages. This came after years of efforts to overturn the ban, which had been in place since 1975 and was further strengthened by amendments in 1997 and 2004.
The process to repeal the ban began in 2013 when two gay men filed a lawsuit, known as Bostic v. McDonnell, challenging the state's ban on same-sex marriage. A lesbian couple, who had married in California and were parents to a teenager, joined the case as plaintiffs. In January 2014, the Attorney General, Mark Herring, and Governor Terry McAuliffe announced their support for the lawsuit, refusing to defend the state's ban.
On January 14, 2014, a U.S. district court judge ruled that Virginia's statutory and constitutional bans on the state's recognition of same-sex marriages were unconstitutional. This decision was upheld by the Fourth Circuit Court of Appeals, and on October 6, 2014, same-sex marriages began in Virginia.
Despite this victory, the ban remained in the Virginia Constitution, and LGBTQ+ advocates continued their efforts to secure full legal recognition. In 2020, the Virginia General Assembly took a significant step forward by repealing the statutory ban. On January 28, 2020, the House of Delegates approved a bill (HB 1490) introduced by Nancy Guy, which repealed provisions of the Code of Virginia that banned same-sex marriage and civil unions. The bill passed with a vote of 63-34. On February 17, the bill passed the Senate by 28 votes to 12 and was signed into law by Governor Ralph Northam on March 3.
While this was a major step forward, the constitutional ban remained in place. In 2022, the Republican-controlled House of Delegates rejected a proposed constitutional amendment to fully repeal the ban, despite popular public support. Senators Mark Warner and Tim Kaine, along with other advocates, continued to urge the Virginia General Assembly to protect marriage equality by removing the ban from the state constitution.
The process to amend Virginia's constitution is a lengthy one, requiring two consecutive sessions of the General Assembly to pass identical bills before placing the measure on a public ballot for approval. Despite setbacks and opposition, advocates for marriage equality in Virginia remain committed to ensuring the legal rights of LGBTQ+ individuals are protected and respected.
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The public's view towards same-sex marriage has changed
Same-sex marriage has been legal in Virginia since October 6, 2014, following the decision of the U.S. Supreme Court not to hear an appeal of the Fourth Circuit Court of Appeals' ruling in Bostic v. Schaefer. This ruling found that same-sex couples have a fundamental right to marry, and that "inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws".
This shift in public opinion is also reflected in the state's political landscape. In 2020, the Virginia General Assembly repealed the statutory ban on same-sex marriages. Then, in 2022, the Republican-controlled House of Delegates rejected a proposed constitutional amendment to repeal the constitutional ban, despite popular public support. Both of the state's senators, Democrats Mark Warner and Tim Kaine, support same-sex marriage.
The Census Bureau reported in 2023 that Virginia has same-sex married couples in every city and county but one, with the highest concentrations in Alexandria and Norfolk, followed by Roanoke. This indicates that the public's view towards same-sex marriage has changed, with increasing acceptance and support for same-sex couples across the state.
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The law impacts family law in Virginia
Same-sex marriage has been legal in Virginia since October 6, 2014, following the decision of the U.S. Supreme Court not to hear an appeal of the Fourth Circuit Court of Appeals' ruling in Bostic v. Schaefer. Prior to this, Virginia had passed a statute prohibiting same-sex marriage in 1975, with further restrictions added in 1997 and 2004. In 2006, voters approved an amendment to the Constitution of Virginia reinforcing the existing laws.
Secondly, the legalization of same-sex marriage has resulted in changes to pre-marital agreements for gay couples. Previously, these agreements were considered contracts, but they will now be governed by the Virginia Pre-Marital Agreement Act and incorporated into divorce decrees. This new legal environment may require the revision of existing contracts between same-sex partners.
Thirdly, the law has implications for divorce proceedings, particularly in cases where same-sex marriages occurred before legalization. Divorce would presume that the marriages were legal at some point, and while licenses may be invalidated, previously granted marriage licenses cannot be revoked. This could lead to complex legal questions regarding the validity of marriages that took place before same-sex marriage was legalized in Virginia.
Finally, the recognition of same-sex marriage impacts other areas of family law, including health insurance, custody, tax, adoption, estate planning, and agreements. While public opinion has shifted towards supporting same-sex marriage, with a majority of Virginians now in favor, there are still efforts to repeal the constitutional ban on same-sex marriage. The proposed amendment aims to protect same-sex marriage by adding language recognizing marriage as a vital personal right and prohibiting the denial of marriage licenses based on sex, gender, or race.
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Pre-marital agreements will be governed by the Virginia Pre-Marital Agreement Act
Same-sex marriage has been legal in Virginia since October 6, 2014, following the decision of the U.S. Supreme Court not to hear an appeal of the Fourth Circuit Court of Appeals' ruling in Bostic v. Schaefer. Prior to this, Virginia had passed a statute prohibiting same-sex marriage in 1975, with further restrictions added in 1997 and 2004.
Now, let's discuss pre-marital agreements, which are governed by the Virginia Pre-Marital Agreement Act. This act allows couples to enter into premarital agreements, commonly known as "prenuptial agreements" or "prenups." These agreements are not just for the rich and famous but can be beneficial for any couple by allowing them to contemplate the division of assets prior to marriage and in the event of a divorce.
The Virginia Pre-Marital Agreement Act outlines several important provisions regarding prenuptial agreements:
- Timing and Execution: The Act applies to premarital agreements executed on or after July 1, 1986. A premarital agreement must be in writing and signed by both parties. It becomes effective upon marriage.
- Content of the Agreement: According to the Act, parties to a premarital agreement can contract with respect to the rights and obligations related to their property, including the disposition of property, the right to buy, sell, or lease property, and spousal support. They can also make provisions for creating a will or trust to carry out the terms of the prenup and determine how life insurance policies will be handled in the event of a divorce.
- Postnuptial Agreements: In addition to premarital agreements, Virginia law also allows married couples to enter into postnuptial agreements or marital agreements, which offer similar benefits but are executed after the marriage and become effective immediately.
- Custody and Visitation: While prenuptial agreements can cover a wide range of financial matters, it's important to note that they may not play a significant role in determining custody and visitation arrangements for future children. Virginia courts consider multiple factors when determining the best interests of the children, and a prenuptial agreement may not carry much weight in those decisions.
- Seeking Legal Advice: It is always advisable to seek the guidance of an experienced family law attorney when drafting or reviewing a premarital agreement. Consulting a knowledgeable family lawyer can help ensure that the agreement is fair and properly protects the interests of both parties.
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Frequently asked questions
Yes, same-sex marriage has been legal in Virginia since October 6, 2014, following the decision of the U.S. Supreme Court not to hear an appeal of the Fourth Circuit Court of Appeals' ruling in Bostic v. Schaefer.
No, the state passed a statute prohibiting same-sex marriage in 1975, and further restrictions were added in 1997 and 2004. In 2006, voters approved an amendment to the Constitution of Virginia reinforcing the existing laws.
On January 14, 2014, a U.S. district court judge ruled in Bostic v. Schaefer that Virginia's statutory and constitutional bans on the state recognition of same-sex marriages were unconstitutional.
In 2022, the Republican-controlled House of Delegates rejected a proposed constitutional amendment to repeal the constitutional ban, despite popular public support. Polling suggests that a majority of Virginia residents support the legal recognition of same-sex marriage, with a 2021 survey conducted by the Public Religion Research Institute showing that 71% of Virginians supported same-sex marriage.
Same-sex marriage is currently legal in Virginia, and the law also recognises same-sex marriages performed out-of-state. However, the part of Virginia's Constitution that outlaws same-sex marriage is still there, and there is ongoing legal debate about how family law will be applied to same-sex couples.
