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GAY MARRIAGE Ban on same-sex unions will stand in Virginia

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Posted: Thursday, June 27, 2013 12:00 am | Updated: 4:20 pm, Tue Jul 22, 2014.

The landmark Supreme Court ruling on the Defense of Marriage Act does not overrule Virginia’s 2006 constitutional amendment against same-sex marriage in the state.

With a 5-4 vote, the Supreme Court on Wednesday invalidated a provision of DOMA that prevented gay couples from receiving a range of federal benefits that are generally available to married people.

Same-sex couples married in one of the dozen states that recognize such unions will be eligible for such tax, health and retirement benefits, but states still will make their own decisions on who is legally married.

“This ruling is historic and an important victory for the gay-rights community, but we should keep it in perspective,” said Allison O. Larsen, an assistant professor of law at the College of William and Mary.

The court does not say that there is a constitutional right for same-sex marriage, and Justice Anthony Kennedy in his opinion reaffirmed a state’s original authority on regulating marriage.

“This is not like Roe vs. Wade, where the right to abortion is protected by the Constitution,” said A.E. Dick Howard, professor of law at the University of Virginia.

“Kennedy clearly believes that marriage is a state prerogative, and he also does not say that a state law which has the same purpose as DOMA is unconstitutional,” he said.

This means that as long as Virginia defines marriage in the traditional sense as between man and woman, there is nothing in the ruling that changes the status quo in the commonwealth, Howard said. “The court left the question of constitutionality of same-sex marriage for another day.”

But W&M Rector Jeff Trammell urged the state’s universities to use the ruling to push for partner benefits for faculty and staff. In a letter to presidents and rectors of public schools, Trammell said the lack of benefits for same-sex couples is causing Virginia universities to lose faculty members who take research grants to other states.

“We must face the reality that today’s Supreme Court rulings add a substantial incentive for our gay and lesbian faculty and staff to leave the commonwealth’s public universities and colleges,” he wrote.

Gov. Bob McDonnell said the court’s ruling doesn’t change Virginia’s established policy, ratified by the state’s voters in the 2006 referendum.

“It properly leaves decisions on this important issue to the individual states. I’m sure this public policy and cultural conversation will continue in the years ahead.”

The governor added: “While there will always be disagreement on specific policy issues, and our faith traditions will often lead us to different positions, we all can agree that every American must be treated with dignity and respect under the law.”

Victoria Cobb, president of the Family Foundation of Virginia, called the ruling “a major defeat” for advocates of same-sex marriage.

But Cobb also said the court’s decision is “a mixed bag” for both sides. “We’re certainly disappointed the court struck down DOMA, but the court has allowed the decision that millions of Americans, and Virginians, have already made on the definition of marriage to stand,” she said.

Nine states and the District of Columbia have laws allowing same-sex marriage. Since the justices began deliberating two cases in March, three more states have enacted such laws.

In Windsor v. U.S., the DOMA case, New York resident Edith “Edie” Windsor challenged the federal Defense of Marriage Act, alleging that the law violates equal protection guarantees in the Fifth Amendment’s due process clause as applied to same-sex couples legally married under the laws of their states.

Windsor was charged an estate tax bill much larger than other married couples because her deceased partner was a woman and the federal government did not recognize their marriage, even though their state, New York, did.

Wednesday’s ruling changed all that.

“It means that Edith Windsor qualified for the federal tax estate exemption for spouses,” Larsen said. “New York recognized her marriage, and after today, federal law must do so as well.”

Consequently, thousands of same-sex couples — married in states that sanction such unions — are now guaranteed equal protection and benefits under federal law — even if they live in Virginia, where their marriages are not recognized.

Claire G. Gastañaga, executive director of the American Civil Liberties Union of Virginia, said there are “more than 1,100 federal laws and programs where being married makes a difference — from tax laws, to eligibility for family medical leave, to Social Security survivor’s benefits, to access to health care for a spouse.”

James Parrish, executive director of Equality Virginia, an advocacy group for gay rights, said: “While we continue working to lift the ban on marriage here at home, we can celebrate the decision from the Supreme Court, affirming that all loving and committed couples deserve equal respect and treatment.”

Bill Harrison, president of the Richmond Gay Community Foundation, said that the rulings are “adding to the momentum” for same-sex marriage.

“I always had faith that we would reach this point because justice always prevails in America. It can take lifetimes, but finally it prevails because this is America,” Harrison said.

Larsen said even though the immediate effects of Windsor on same-sex couples in Virginia are limited, there may be long-term implications.

“There is language in the Windsor opinion that will be helpful to activists seeking marriage equality here in the future,” she said. Language that could possibly mean a broader ruling establishing marriage equality for same-sex couples “is not that far off in the future.”

Carl Tobias, professor at the School of Law at the University of Richmond, said Windsor could have considerable effect on Virginia’s same-sex marriage ban in the future.

“I believe that same-sex couples, who were married in states that recognize same sex marriage, could argue that they are entitled to the same federal benefits as married opposite-sex couples,” he said, adding that he expects Virginia’s same-sex marriage ban to be back on the ballot for repeal at some point.

Howard also believes that the Windsor ruling might one day lead to a repeal of Virginia’s constitutional amendment.

“In future cases challenging state law, bans might be struck down based on the same equal protection clauses that we saw today,” he said. “But we are not there yet.”

mschmidt@timesdispatch.com

(804) 649-6537

Staff writer Karin Kapsidelis contributed to this report.

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