Not Your DOMAin, Virginia

If you ask Virginia residents whether they consider Virginia to be a conservative or progressive state, you’re likely to receive mixed responses (dependent on whether they live in closer proximity to Washington, D.C. or the Stonewall Jackson Memorial). Virginia is finally on the cusp of resolving the dispute, with residents eagerly awaiting to hear whether the United States Supreme Court will agree to take the case(s) regarding whether states can ban gay marriage.There are currently seven cases before the Supreme Court originating from Virginia, Utah, Wisconsin, Indiana, and Oklahoma, and the court will soon agree to hear some, none, or all of the cases.


DOMA or the federal Defense of Marriage Act, was passed in 1996, and provided that states could refuse to recognize same-sex marriages granted under the laws of other states. It was not until 2013 that Section 3 of the Act was ruled unconstitutional, which until that time, had the effect of denying same-sex couples federal insurance benefits, social security survivor’s benefits, immigration, bankruptcy, financial aid eligibility, and joint tax returns.

Gay marriage is legal in 19 states, with as many as 16 other states having issued pro-gay marriage rulings that have not been put into effect as a result of continuing litigation.

Such is the case in the Virginia. One Virginia case, Bostic v. Schaefer, was originated by a same-sex couple in Norfolk, who sued George Schaefer, the Norfolk Circuit Court Clerk, after being denied a marriage license. This past July, the 4th U.S. Circuit Court of Appeals ruled that Virginia’s prohibition on same-sex marriage was unconstitutional. However, the celebration was short-lived.

DOMA in the U.S. Supreme Court: Recent Anti-Gay Marriage Protest Led by Virginia’s Own Clerk of the Court

Michele B. McQuigg, Clerk of the Prince William County Circuit Court, represented by an Arizona-based conservative Christian legal organization, filed a formal petition in August to have the U.S. Supreme Court reverse the decision rendered in the 4th U.S. Circuit Court of Appeals. McQuigg has arguably been the most out-spoken and adamant ban-defender, who only joined the cause after Virginia’s Attorney General, Mark Herring, refused to defend the state’s gay marriage ban. What makes McQuigg an interested party? § 20-14 of the Virginia Code, which provides that every license for marriage shall be issued by the clerk of deputy clerk of a circuit court.

Virginia’s Thoughts on DOMA

The Virginia legislature has already made some progress on the issue, striking or revising some of Virginia’s ancient laws regarding “morals” and “decency.” On March 20, 2013, Governor Bob McDonnell signed the repeal of the lewd and lascivious cohabitation statute from the Code of Virginia § 18.2-345ii, which passed with ease through the Virginia Senate and House of Delegates.

On March 12, 2013, a three-judge panel of the Court of Appeals for the Fourth Circuit struck down § 18.2-361iii, the crimes against nature statute. Former Attorney General Ken Cuccinelli petitioned to have the case reheard, but the Court’s 15 judges unanimously denied the request.

Earlier this year, Governor McAuliffe signed a bill revising the crimes against nature statute to remove the criminalization of consensual same-sex sexual relations, which bill passed through the Virginia Senate and House of Delegates unanimously in favor of revision.

Gay Marriage Currently Prohibited in Virginia

Gay marriage is currently prohibited by § 20-45.2v of the Virginia Code, which provides that “A marriage between persons of the same sex is prohibited. Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable.” Same-sex civil unions or partnerships are similarly prohibited by § 20-45.3vi, which provides that “Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.”

What Same-Sex Couples May Receive Upon Legalization of Same-Sex Unions

Same-sex marriage supporters are eager to see Virginia’s ban struck down. Not surprisingly, Virginia has one of the most stringent bans in the U.S., which not only prohibits same-sex couples from marrying, but also bans recognition of gay marriages performed elsewhere, and even more offensively, prohibits gay couples from adopting children, owning and inheriting property as spouses, and making medical decisions for each other. Despite the fact that no one can honestly say, “I really enjoyed my divorce proceeding,” heterosexual couples have enjoyed many privileges and civil rights that, to this date, have been unavailable to homosexual couples in Virginia. Laws relating to spousal support, child support, marital property, equitable distribution, and tenancy by the entirety are foreign concepts to same-sex couples, but will necessarily be effected and revised upon a repeal of the ban on same-sex marriage. § 55-20.2 of the Virginia Codevii provides that any husband and wife may own real or personal property as tenants by the entireties, which designation provides two major benefits to the couple:

1. Upon the death of one spouse, the designated property automatically belongs to the other, in whole.

2. The designated property is immune from the claims of their separate creditors. In other words, so long as the couple remains husband and wife, the property cannot be seized or subject to lien unless the same creditor obtains the same judgment against both spouses.


The U.S. Supreme Court is expected to announce its decision on October 6, 2014. McQuigg’s petition to the U.S. Supreme Court had the effect of staying or delaying enforcement of the federal court’s decision to strike down the bans against same-sex couples in Virginia. If the U.S. Supreme Court agrees to accept the Virginia case, then same-sex marriages will remain prohibited until the case is decided, which could take at least one year. If the court declines to accept the Virginia case, then the 4th Circuit Court ruling will automatically take effect, and gay marriage will immediately become legal in Virginia.

Fairfax Divorce Lawyer: If you’re looking for an experienced Virginia family law attorney or Virginia divorce lawyer, contact Keithley Law, PLLC, PLLC today by calling (703) 454-5147 and schedule an initial consultation in our Fairfax law office.