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Virginia voters may get the chance to pass marriage equality in 2016

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Virginia state sealThe Washington Blade reports that two state legislators in Virginia have introduced a bill that would eventually repeal the state’s same-sex marriage ban. If the bill is passed in two legislative sessions, an amendment to repeal the same-sex marriage ban will go to Virginia’s voters in 2016.

Voters approved the ban in 2006:

Virginia voters in 2006 approved the so-called Marshall-Newman Amendment by a 57-43 percent margin.

A referendum on whether to repeal the amendment would take place in November 2016 only if members of the General Assembly approve Ebbin and Morrissey’s bills during the 2014 and 2016 legislative sessions. A Virginia House of Delegate subcommittee in January killed a proposal that state Del. Scott Surovell (D-Fairfax) introduced seeking to repeal the commonwealth’s gay nuptials ban.

Surovell is expected to co-sponsor Morrissey’s measure.

“Change is coming across the country and eventually we’ll have marriage equality in Virginia,” Ebbin told the Washington Blade on Tuesday. “The road to marriage equality in Virginia might not be a short one, but we’ve got to make sure we’re on our way.”

According to polls from the Human Rights Campaign (HRC) and the Washington Post, around 55 percent of Virginians support marriage equality. A different poll has suggested that when asked, only 36 percent of voters would support a ban on same-sex marriage.

Lambda Legal and AFER have two ongoing lawsuits challenging Virginia’s marriage ban in federal court. Lambda Legal’s suit is a class-action, while AFER, who litigated the challenge to California’s Prop 8, recently joined a federal challenge filed by several couples. Lambda Legal filed a motion for summary judgment in its case on September 30 and it can be read here. AFER’s motion for summary judgment in its case, filed the same day, can be read here.

Thanks to Kathleen Perrin for these filings


  • 1. Seth From Maryland  |  November 20, 2013 at 10:16 am



    Scotland's parliament is set to take its first vote on marriage equality today, the BBC reports:

    The Scottish government's Marriage and Civil Partnership Bill is likely to be backed in principle, when MSPs vote on it for the first time. Ministers said the move was the right thing to do but the Church of Scotland and Catholic Church are opposed. Under the bill, religious and belief bodies would need to "opt in" to perform same-sex marriages. Individual celebrants who felt it would go against their faith to carry out same-sex weddings would also be protected, and the Scottish government has insisted no part of the religious community would be forced to hold ceremonies for homosexual couples in churches. MSPs are being allowed a free vote on the legislation, rather than along party lines.

    They add:

    Same-sex couples in Scotland currently have the option to enter into civil partnerships, and there has been an indication that the earliest gay marriage ceremonies could take place by the start of 2015, if the legislation is passed. The bill was brought forward after a Scottish government consultation, which produced a record 77,508 responses.

    You can watch the vote live starting at approximately 12:05 pm ET.

  • 2. Rob  |  November 20, 2013 at 10:42 am

    I think the best chance to bring marrriage equiality to Virginia is throught the courts – specifically through the cases pending in two separate Federal courts. It certainly will be quicker than the legislative route. One question I have about this: If Democrat Herring maintains his razor thin lead from the recent elections and becomes Virginia's Attorney General, the case that brought in Ted Olson and Davie Boies may never make it to the US Supreme Court – due to the Democrat's sweep for Governor, Lt Governor and Attorney General. This could be similar to the Prop8 case when no leading politician will challenge a favorable court ruling and (as it turned out), no one else has standing to file for an appeal. Great for Virginia couples, but not a Federal case. Do I have this right?

  • 3. Rob  |  November 20, 2013 at 10:45 am

    pardon the typo's – typing this without wearing my reading glasses!

  • 4. Bruno71  |  November 20, 2013 at 11:01 am

    I agree that this legislative action in Virginia will not only not be the quickest route, it's a complete non-starter. Democrats failed to make much progress if any at all in the state legislature on Election Day. I believe the Republicans have close to a supermajority in the Virginia General Assembly, so the chances that voters will see this in 2016 are pretty much nil.

    As to the prop 8 type standing issue that could arise if Herring wins AG, I have my doubts. In my opinion, the standing issue was valid in prop 8, but the result may be that more care is taken to make sure that those issues won't arise on appeal in future cases. In Virginia, the federal district courts there might grant amicus status to a county clerk or someone else who may claim a harm by the law being overturned. Since Justice Roberts basically said in the prop 8 hearing that a county clerk might have standing, you can bet the opposition will be more clued in from now on.

  • 5. Stefan  |  November 20, 2013 at 11:22 am

    He said no such thing in the formal opinion though. The Supreme Court pretty explicity said that outside groups do not have standing in federal court.

  • 6. Bruno71  |  November 20, 2013 at 12:06 pm

    A county clerk is not an outside group. It remains to be seen if being a county clerk is sufficient enough to have standing in cases like these, but it's definitely an open question at this point.

  • 7. sfbob  |  November 20, 2013 at 12:16 pm

    It's tough to see how a county clerk could claim to be harmed if a state's marriage equality ban were to be overturned.

  • 8. Bruno71  |  November 20, 2013 at 12:28 pm

    Probably on religious grounds. Not that I agree with that, but it could be argued at least. We'll have to keep a close eye on Oregon and Virginia.

  • 9. Stefan  |  November 20, 2013 at 12:51 pm

    Perry has show that religious reasons do not stand up in court.

  • 10. Klien  |  November 20, 2013 at 1:37 pm

    No dude, religious grounds are not legitimate grounds. I admire your postings, but I will say, I feel as though you play devil's advocate on here just for the sake of contributing something 'different' for the sake of it. Not trying to be rude.

  • 11. Bruno71  |  November 20, 2013 at 2:20 pm

    I don't take any offense to it, I can see why you say that. I do play devil's advocate occasionally, if only to try & be realistic about things. There's a realistic chance that the courts will view a county clerk (who is a state worker who deals directly with marriages, not a total outsider to the issue) with religious objections as having valid standing. That's just a possibility. And NEITHER you or I agree with that, but that is a possibility.

  • 12. sfbob  |  November 20, 2013 at 2:06 pm

    I don't that's even remotely defensible. Is anyone going to seriously assert that a county clerk would generally be able to refuse to issue a marriage certificate to a couple whose personal characteristics he or she objects to on religious grounds? Or does that only apply to sexual orientation. I can't see anyone seriously trying to defend the idea that, for example, a Catholic county clerk doesn't have a problem with issuing a license to a couple, one of whose members was divorced, but will have a religious objection to issuing a license to a same-sex couple, when his/her religion disapproves of both, and have that argument not be laughed right out of court.

  • 13. Bruno71  |  November 20, 2013 at 2:21 pm

    The question isn't whether the position is defensible, the question is if the clerk would be considered to have standing in federal court. That has yet to be directly addressed, since no clerk had amicus status in the Perry appeal.

  • 14. Stefan  |  November 20, 2013 at 2:49 pm

    During Perry a county clerk in Imperial County attempted to intervene and he was denied due to lack of standing, so yes it has been addressed.

  • 15. Bruno71  |  November 20, 2013 at 2:57 pm

    No. He was denied because it was too late to add him to the case. And at any rate, Judge Walker's assessment of the clerk's standing one way or another wouldn't be binding on a lower federal court in Virginia or Oregon.

  • 16. Dr. Z  |  November 20, 2013 at 5:08 pm

    It wasn't just Walker. The Ninth Circuit also considered Imperial County's request for standing and rejected it.

  • 17. Stefan  |  November 20, 2013 at 5:45 pm

    No it would not be binding but it would still carry weight and influence. The 4th Circuit is and incredibly liberal court mind you.

  • 18. Stefan  |  November 20, 2013 at 12:50 pm

    The clerk in Bostic is not suing themselves, but it instead being represented by the Attorney General's office. When Herring takes office in January he will likely drop the defense. It will be too late for anyone else to intervene at that point.

  • 19. Rob  |  November 20, 2013 at 11:34 am

    The VA law that banned same sex marriage is so draconinan that I can't see if ever passing muster in the courrts. As I understand, it not only bans these marriages, it also bans (voids) all private contracts between two non-blood related individuals of the same sex. No wills, etc. Clearly aimed at the LGBT community. Lowering the bar to be ruled unconstitutional.

  • 20. Valquiria  |  November 20, 2013 at 11:09 am

    The ONLY plausible route to equality is through the courts. As long as Republicans control the VA house, they'll block any effort to repeal the ban by legislative means. And they have a 2-to-1 majority in the house, so they aren't going anywhere.

  • 21. Seth From Maryland  |  November 20, 2013 at 12:12 pm

    BREAKING NEWS : the marriage equality bill in Scotland has passed its first vote 98 for 15 against

  • 22. Gregory in SLC  |  November 20, 2013 at 4:08 pm

    tx for! great margin!

  • 23. Zack12  |  November 20, 2013 at 1:17 pm

    Sad to say but the courts are the only way to go in VA. THe legislature will never allow it to get through two seperate sessions.
    More to the point,the ban is so bad it won't even allow for private contracts and one of the creators of the bill has made it clear this was done to target the LGBT community as harshly as possible.
    His quotes should be brought up everytime in getting this thrown out.

  • 24. Rich  |  November 20, 2013 at 3:35 pm

    Just watched out of Illinois. The Governor has signed into law the marriage equality bill. This was a beautiful ceremony with heartfelt testimony and short speeches! Laurie Higgins of the Illinois Family Institute is foaming at the mouth I am sure.

  • 25. grod  |  November 21, 2013 at 9:14 am

    Now to achieve out-of-state marriages prior to June 2014.

  • 26. Straight Ally #3008  |  November 21, 2013 at 7:27 am

    The constitutional bans were fiendishly clever. The more regressive a state's legislature, the less likely it would even come to a vote again (let alone passing twice), where in most cases public opinion wouldn't favor marriage equality for years to come. I don't know how long we're going to have to wait for a Supreme Court decision, but I hope a state without a constitutional ban. like Pennsylvania, comes around in the interim.

  • 27. Straight Dave  |  November 21, 2013 at 9:43 am

    On the upside, if a state was never going to support equality anyway, a constitutional ban may attract more legal scrutiny since it more severely deprives LGBT of access to the political/legislative process. That was one of the aspects of Romer.

  • 28. John_B_in_DC  |  November 21, 2013 at 3:50 pm

    So it has to be passed by the legislature, and then approved by the voters. So NOM should love that right? Anybody think NOM will address Virginia with their old rallying cry of "let the people vote!!!!"?

    Nope, me neither.

  • 29. The Next Five States to L&hellip  |  November 29, 2013 at 5:13 am

    […] elected Democrat governor, Terry McAuliffe, supports marriage equality, as do most Virginians. A poll from the Washington Post and the Human Rights Campaign indicated that 55 percent of state residents […]

  • 30. The Next Five States to L&hellip  |  December 1, 2013 at 2:37 pm

    […] elected Democrat governor, Terry McAuliffe, supports marriage equality, as do most Virginians. A poll from the Washington Post and the Human Rights Campaign indicated that 55 percent of state residents […]

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