Virginia’s constitutional ban on same-sex marriage will stay on the books till at least 2020
While the 2017 General Assembly might be have buried a number of anti-LGBTQ bills, it’s failed to remove the state’s constitutional ban on same-sex marriage and wont get another chance to right this wrong until 2020.
The infamous Marshall Newman Amendment, co-authored by none other than Delegate and notorious anti-LGBTQ advocate “side-show” Bob Marshall, went into law in 2006 after being put on the ballot and winning by a 57% margin.
It was ruled unconstitutional in 2014 when the Fourth District Court of Appeals ruled in favor of Bostic v. Schaefer, the lesser known but equally important precursor to Obergefell v. Hodges which over turned same-sex marriage bans nation wide in 2015.
While the law may be inert thanks to SCOTUS, it remains on the books, codifying unconstitutional treatment of same-sex couples around the Commonwealth.
This was the year to fix it… and this was the year it didn’t happen.
In order to amend the State Constitution, a bill must pass the House and Senate twice, separated by a state-wide election. This year’s gubernatorial race would have been the first chance to put the issue back to the public, which has substantially changed its tune on the issue since 2006. A 2014 PRRI poll put support legal same-sex marriage at around 50% and opposition below 45%.
Legislators in the House and Senate tried to get gears in motion with Senator Adam Ebbin and Delegates Mark Sickles and Mark Levine all submitting bills aiming to repeal the language, but they all failed to make it out of subcommittee.
“The Privileges and Elections, Constitutional Subcommittee, without explanation, decided to indefinitely enshrine the opinions of Virginians who voted in 2006 to ratify a Virginia constitutional amendment that has since been ruled unconstitutional,” said Del. Sickles, in a press release sent out earlier this week after his House bill, HJ 538, was killed with an unrecorded voice vote.
“Over the past 11 years, the public has reassessed their views as the issue has literally come home for friends and family of the LGBT community. Many Virginians have realized they were on the wrong side of history,” Sickles said. “Marriage equality is the ‘law of the land’ and our voters deserve the right to clear our constitution of harsh and harmful exclusionary language.”
Why does it matter that the language is removed? The Supreme Court found it unconstitutional recently, so there’s little chance they could or would undo it so soon, right?
“It’s something people are looking at,” said James Parish, Executive Director of Equality Virginia. “But I think a higher priority are First Amendment Defense Act (FADA) and laws that will actionably harm LGBT people when signed into law.”
Parrish said conversations he’s had with legal experts lead him to believe the Supreme Court rarely overturns its own rulings and never so quickly. It would also require a case working its way back up through the courts.
“You’d be looking at a case where Judges on many levels are disagreeing with what the Supreme Court said was a constitutional right,” he said.
But other advocates are less confident. LGBTQ Journalist Matt Baume took to Youtube to breakdown a hypothetical where conservative judges from the 10th Circuit, in tandem with our new Federal Attorney General Jeff Sessions, could work to make it happen.
In Baume’s eyes, the wheels have already started turning to undo progress. Check out details in the video below:
If the high court does reverse its ruling, that would leave the 30 states with bans still in place at risk of eliminating same-sex marriage.
There’s also states, like Virginia, which still have statutory bans on same-sex marriage. Legislation to remove that language from our state code is currently before the Virginia Code Comission which is said to release a passable bill in time for the 2018 session, but even that is not guaranteed.
For now, we’ll have to look to 2019 to get the process restarted, bringing another bill to remove the Marshall Newman amendment to the House and Senate for passage, and finally on the ballot in 2020, a Presidential election year where who knows what could happen next.
Top image: Irish mural depicting same-sex couple via William Murphy
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