Why We Challenged Virginia’s Ban on Marriage by Same-Sex Couples

by Rebecca Glenberg, Legal Director & Frank Knaack, Director of Public Policy and Communications

In Loving v. Virginia, the Supreme Court ended the prohibition on interracial marriage, and the ACLU of Virginia is proud to call Loving our first case.  Earlier this month, we continued our tradition of ensuring the freedom to marry by challenging Virginia’s ban on marriage between couples of the same sex.  As Loving showed, we are on the right side of history.

In general, it has always been the case that if your state considers you to be married, the federal government does too.  In 1992, however, Congress enacted DOMA (the Defense of Marriage Act) that prohibited the federal government from recognizing any same-sex marriages.  Thus, legally married same-sex couples were unable to file taxes jointly and were not considered married for the purposes of any of the more than 1000 federal laws and benefits that are tied to marital status.

Several years ago, the ACLU filed a lawsuit challenging the constitutionality of DOMA.  In that case, the plaintiff, Edie Windsor, was saddled with a huge estate tax bill when her wife died.  Even though Edie’s marriage to her wife was recognized as a legal marriage in New York State, where they lived, the federal government refused to recognize the marriage for purposes of the spousal exemption from the estate tax.  On June 26, 2013, the U.S. Supreme Court ruled in Edie’s favor, striking down DOMA.  The Court’s opinion makes it clear that all marriages that are valid under state law must be treated equally by the federal government.

This means that, from now on, the federal government will be looking to state law to determine whether a couple is married for federal purposes.  Unfortunately, it is not always clear whether the federal government will look to the state where a couple was married or the state where the couple currently lives in order to make that determination.  The ACLU and other LGBT rights organizations have put together a great series of fact sheets that explain how the federal government will treat married same-sex couples now that DOMA has been overturned.

While all of the ramifications of the Windsor decision are not yet clear, one thing is very clear:  In order for a marriage to be recognized by the federal government, it must be valid under state law.  For this reason, the ACLU and other LGBT advocates are pursuing a state-by-state strategy, attempting to overturn same-sex marriage bans through legislation, ballot initiative, and litigation.  In Virginia, we have determined that litigation is the only viable way to get the state to recognize same-sex marriages.

This is why we have challenged Virginia’s ban on marriage by same-sex couples, as states have the primary role in defining what constitutes a legal marriage, regardless of federal law.  It is the state that determines who is eligible to marry, who may receive marriage licenses, and who can be granted divorces.

Denying same-sex couples the freedom to marry not only deprives them of the equal dignity and respect for their relationships that opposite-sex couples take for granted, it deprives them of basic legal rights, such as the right to make medical decisions for an incapacitated spouse.  The children of same-sex couples are denied a legal relationship with both parents, since unmarried couples may not adopt jointly, and one parent may not adopt the biological or adopted child of the other as a step-parent.

Forty years after Loving, it is time for full marriage equality in Virginia.