Virginia might scrap its defunct same-sex marriage ban. Most GOP legislators aren’t on board.

By: - February 8, 2021 12:01 am

(Getty Images)

Fifteen years ago, more than 1.3 million Virginians said marriage should only mean a union between a man and a woman and same-sex couples shouldn’t be entitled to similar status that would give them the same rights under the law as straight couples.

That was the view of 57 percent of Virginians who voted in 2006, more than enough to put a same-sex marriage ban in the state Constitution.

Much has changed since then. And Democratic lawmakers want to give a new generation of Virginians an opportunity to make a different statement in 2022.

The General Assembly is advancing a proposal to put a question on the ballot asking voters if they want to strip the now-defunct gay marriage ban out of the Constitution. That ban has been functionally moot since 2015, when the U.S. Supreme Court made same-sex marriage legal nationwide after ruling the right to marry is fundamental. 

“This would remove a stain on the Constitution,” said Sen. Adam Ebbin, D-Alexandria, a sponsor of the proposed amendment who in 2003 became the first openly gay Virginian to win a seat in the General Assembly.

Under a proposed amendment approved by both the House of Delegates and the Senate, the old statement on marriage in Virginia’s Constitution would be replaced with an affirmative declaration that all marriages must be treated equally as “one of the vital personal rights essential to the orderly pursuit of happiness.”

“I think we’ll get an overwhelming response that we want equality in our state,” said Del. Mark Sickles, D-Fairfax, who has championed the measure in the House.

Nevada is the only other state to have taken a similar step, but others could follow while Virginia embarks on the multi-year process of changing its Constitution.

The proposed amendment, which has to pass again next year before being put on the ballot, passed the House 60-33. In the Senate, the vote was 24-12. Several members in each chamber, including three Democrats in the Virginia Legislative Black Caucus, did not vote.

To alleviate concerns of social conservatives, the proposed amendment includes an explicit statement that clergy and religious organizations “acting in their religious capacity shall have the right to refuse to perform any marriage.”

That protection was enough to get the support of nearly a dozen Republicans in the Democratic-led legislature. But most Republicans, 52 of the 63 serving in both chambers, didn’t vote for the amendment.

That includes both GOP lawmakers running to become their party’s nominee for governor this year.

Prior to her no vote, Sen. Amanda Chase, R-Chesterfield, whose incendiary, Trump-style populism recently led to her being formally censured by the Senate, said she was taking a stand for “traditional values in Virginia.”

“I personally believe that marriage is between a man and a woman,” Chase said. “If other people choose differently, that’s their choice. But I do not believe that this should be a constitutional amendment.”

Del. Kirk Cox, R-Colonial Heights, a devout Christian running against Chase as a candidate more likely to make inroads with suburban moderates, also voted against the proposed marriage amendment.

“Delegate Cox’s faith informs his view on the nature of marriage,” said Cox campaign spokeswoman Kristen Bennett. “He respects the rule of law and the Supreme Court decision, but these votes are a matter of conscience.”

The broad opposition suggests resistance to same-sex marriage continues to be a default conservative position, even though the practice has been legal for years and gained wide acceptance in the national culture and corporate America. A poll conducted last year by the Public Religion Research Institute found a record 70 percent of Americans support same-sex marriage, including about half of Republicans.

Text of the revised marriage amendment
That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions 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.
This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage and agents shall issue marriage licenses, recognize marriages, and treat all marriages equally under the law regardless of the sex or gender of the parties to the marriage.
Religious organizations and clergy acting in their religious capacity shall have the right to refuse to perform any marriage.

The electoral perils for Virginia Republicans supportive of LGBTQ rights were on display last year when now ex-congressman Denver Riggleman sparked anger from the right by officiating a same-sex wedding. He was defeated at a drive-through convention last summer by now-Rep. Bob Good, R-Campbell, a self-described “biblical conservative.”

In the General Assembly, four Senate Republicans supported the new marriage amendment, along with seven GOP delegates.

In an email, Sen. Jill Vogel, R-Fauquier, said she voted for the proposal because removing the antiquated gay marriage ban was unanimously recommended by the Virginia Code Commission, which works to identify obsolete laws, and it includes “critical language that protects religious freedom.”

I voted for this because it is important to address the language in Virginia’s Constitution which has been held unconstitutional,” Vogel said.

Senate Minority Leader Tommy Norment, R-James City, who supported the gay marriage ban in 2005 and 2006, also voted this year to get rid of it.

“I recognize that times change. I recognize that Virginia has changed. And I recognize that there is a new cadre of legislators who have different perspectives on what the policy of the commonwealth should be,” Norment said before launching into a critique of his fellow lawmakers for offering up too many constitutional amendments for the Senate’s consideration.

Though the proposed amendment is mostly symbolic, Virginia Democrats have passed a host of pro-LGBTQ legislation since taking control of the General Assembly in the 2019 elections. Last year, the legislature passed the Virginia Values Act, a sweeping anti-discrimination bill that created new state protections for LGBTQ people and strengthened laws for other protected groups. The legislature also banned conversation therapy on minors, ending a practice aimed at changing sexual orientation or gender identity that’s been disavowed by the scientific community.

In addition to the marriage amendment, lawmakers have taken up bills this year to establish a Virginia LGBTQ+ Advisory Board, repeal an HIV criminalization law that opponents say stigmatizes those with the virus and enact a law preventing criminal defendants from using the so-called “panic” defense in cases of violence against LGBTQ people.

In testimony against the constitutional amendment dealing with marriage equality, the Family Foundation of Virginia argued history has shown social conservatives were right to fear that the gay-rights movement would not stop at legalized marriage. 

“Because Virginia is the birthplace of religious freedom, we urge you not to remove this definition from our Constitution,” said the Family Foundation’s Josh Hetzler. 

As an example, the group’s representative pointed to a bill approved by the House this year that would repeal the state’s “conscience clause,” which allows faith-based organizations such as Catholic charities to refuse to facilitate adoptions and foster placements with LGBTQ families without risking their ability to participate in government programs.

Supporters of that bill contend they have nothing against personal religious convictions, but insist that Virginia demonstrate it has no tolerance for discrimination in the public sphere.

For many LGBTQ-rights advocates, there’s no more important place to send that message than the state Constitution, which spells out the basic rights guaranteed to every Virginian.

At a committee hearing, Carol Schall, a plaintiff in the successful lawsuit that sought to overturn Virginia’s gay marriage ban in the runup to such bans being declared void nationwide, called it a matter of dignity for couples whose Constitution still says their marriage shouldn’t count.

“Names matter,” Schall said. “Names like ‘mom’ and ‘wife’ make all the difference in the world.”

The versions of the marriage amendment that passed the House and Senate are the same, making its final passage all but assured. Because it needs to pass again next year, the effort could potentially be thrown off track if Republicans win back a House majority in November.

During discussion of the  proposed amendment, many Democratic lawmakers called it a top priority, characterizing it as a way to right a historical wrong.

“We have to correct that horrible, disgusting mistake that was made,” said Sen. Janet Howell, D-Fairfax.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Graham Moomaw
Graham Moomaw

A veteran Virginia politics reporter, Graham grew up in Hillsville and Lynchburg, graduating from James Madison University and earning a master's degree in journalism from the University of Maryland. Before joining the Mercury in 2019, he spent six years at the Richmond Times-Dispatch, most of that time covering the governor's office, the General Assembly and state politics. He also covered city hall and politics at The Daily Progress in Charlottesville.