Will Virginia make a bipartisan move to get rid of its antiquated same-sex marriage ban?

‘The conservative principle here is less government, more freedom’

By: - December 5, 2022 12:04 am

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When a Democratic proposal to undo Virginia’s legally moot ban on same-sex marriage failed this year in a Republican-led subcommittee, some conservatives said they could potentially get behind a more stripped-down version of an idea Democrats pitched as correcting a moral wrong from 2006.

Instead of replacing the constitutional ban with pro-equality language declaring marriage a fundamental right — as Democrats have tried to do — the Republican critics said they’d be more supportive of simply erasing the ban, without going further into affirmatively pro-LGBTQ territory.

A GOP-sponsored version of that proposal will be on the table for the 2023 General Assembly because of Del. Tim Anderson, R-Virginia Beach, who filed a so-called “clean repeal” plan late last month that only strikes the ban from the state constitution without adding anything else. Because it’s a constitutional amendment, the proposal has to pass the General Assembly two years in a row, then win final approval from voters in a 2024 election referendum.

“The conservative principle here is less government, more freedom,” Anderson said in an interview last week. “When you’re talking about gay marriage, there’s pretty much nothing more conservative than supporting the fact that two people should be treated equally.”

Sen. Adam Ebbin, D-Alexandria, and Del. Mark Sickles, D-Fairfax, both gay men who have worked on LGBTQ equality legislation for years, have said they’re planning to file the same proposal as Anderson. That indicates it could succeed on a bipartisan basis, unless House GOP leadership overrules Anderson and blocks it. That’s not an uncommon maneuver in committees, where just a few strategically placed lawmakers can block legislation that has broad support and would likely pass if put to a full vote.

Anderson said he was curious about why his party did just that when it rejected the Democratic proposal in February, a move that drew emotional criticism from gay lawmakers who said they were deeply offended by conservatives’ claims it could lead to legalized polygamy or incestuous marriage, both of which are already illegal under state law. It’s more difficult to raise those arguments against an amendment that, on its own, does nothing but get rid of a marriage restriction already deemed invalid and unconstitutional.  

The stronger, Democratic-sponsored amendment cleared the state Senate last year with four Republican votes, leaving little doubt about the pro-marriage equality stance of a chamber where Democrats had a 21-19 majority last year. That majority could grow to 22 seats for the upcoming session, depending on the outcome of a Jan. 10 special election in Virginia Beach.

Anderson said the version he’s filed is the only one that can get through the House of Delegates, where Republicans are expected to again have a 52-48 majority.

“My bill is going to get through. And there’s going to be a time when Democrats are going to have to vote, should we take the same-sex marriage prohibition out of the constitution, yes or no,” Anderson said. “And if they say no, they’re going to have some explaining to do to the LGBTQ community. I think that they want it their way, but they’re not going to get it their way.”

A spokesman for House Speaker Todd Gilbert, R-Shenandoah, did not respond when asked if Gilbert supports Anderson’s proposal.

Some Democrats agree that the simplified approach is the correct one given the realities of divided government in Richmond, but they’re pursuing other ways to protect marriage equality in Virginia.

“We tried to get affirming language last year and that didn’t work,” said Ebbin. “So it would still be a step forward to remove the prohibition from the constitution.”

Ebbin said he’ll also file accompanying legislation to put anti-discrimination language in the state code to ensure Virginia will keep issuing marriage licenses to same-sex couples even if the U.S. Supreme Court were to overturn the 2015 Obergefell v. Hodges ruling requiring all states to recognize same-sex marriage. Ebbin said he’d still like to see the constitutional amendment pass, even if the associated bill fails.

House Minority Leader Don Scott, D-Portsmouth, said he was inclined to vote against a proposal he saw as a “half-measure.” But he said he’d ultimately defer to LGBTQ lawmakers and advocates on the question. He also praised Anderson, who came to the legislature in January with a reputation as a hard-right figure, for being “one of the few Republicans that will speak with me and talk with me and have conversations.”

“He was Saul until he got blinded by the light, which was the last election,” said Scott in a reference to a biblical figure who underwent a sudden conversion after a dramatic event. “He’s seen that some of those positions that they have taken are too extreme not only for the country, but definitely for Virginia.”

Virginians approved the same-sex marriage ban 16 years ago by a vote of 57.1% to 42.9%. Given the widespread acceptance of marriage equality today, advocates believe a repeal measure would pass overwhelmingly if the General Assembly puts the issue on the ballot again.

That push was seen as largely symbolic until the Supreme Court’s seismic abortion ruling this year, in which Justice Clarence Thomas suggested the Obergefell decision needs the same type of reassessment that led to the overturning of the Roe v. Wade decision that previously made abortion access a constitutional right.

As Virginia Democrats pushed to get rid of the state’s same-sex marriage ban earlier this year, the Virginia Catholic Conference raised the possibility the ban could be reactivated in the future due to changes at the federal level.

That now appears less likely as Congress prepares to pass legislation strengthening federal protections for same-sex marriage with the support of some Republicans who have indicated they’re no longer interested in fighting against marriage equality. If the federal legislation passes as expected, Virginia would have to recognize same-sex marriage licenses from other states, regardless of whether the state does or doesn’t issue such licenses. 

It’s unclear if Ebbin’s bill to ensure the state continues to issue those licenses will win Republican support. Even if that measure fails, getting rid of the constitutional ban would effectively move Virginia’s stance on same-sex marriage from hostile to neutral if the Supreme Court were to strike down Obergefell.

By strengthening same-sex marriage at the federal level, Anderson said, the pending Respect for Marriage Act reduces the need for Virginia to act immediately to create new state-level protections. Anderson said he personally takes no issue with marriage equality from a government perspective, but he said he doesn’t believe religious institutions should also be compelled to accept it.

“The problem is that the religious right thinks that the Republican Party is supposed to be talking about morality,” Anderson said. “We’ve been somewhat hijacked in that context if a Republican comes up and says, ‘Hey you should be against gay marriage because it’s against God’s law.’ That’s not the role of the Republican Party or the role of government. That’s the role of the church.”

Sickles, the House Democrat who sponsored the marriage equality amendment Republicans blocked this year, said he expects Democrats to support the clean repeal plan because it would mean ridding the state of “ugly” constitutional language. He said he doesn’t particularly care if Republicans like Anderson can claim some of “the glory.”

“I welcome it,” Sickles said. “I hope there’s bipartisan support. And I hope that he can figure out a way to get it out of our Privileges and Elections Committee. It’s a hopeful sign.”

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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.