United States: Federal Court Rules That Virginia's Laws Barring Same-Sex Marriage Are Unconstitutional

On February 13, 2014, in Bostic v. Rainey, Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia ruled that any Virginia laws banning same-sex marriage or prohibiting recognition of same-sex marriages – including Article I, Section 15-A of the Virginia Constitution and Sections 20-45.2 and 20-45.3 of the Virginia Code – are unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  If upheld, the ruling, in conjunction with the Supreme Court's decision in Windsor v. United States, means that Virginia employees who choose to marry a person of the same sex would now have the benefit of spousal status under both state and federal law for the purposes of medical plan coverage, 401(k) and retirement plans, and entitlement to leave under the Family and Medical Leave Act (FMLA).  

Background to the Decision

In 1997, the Virginia legislature amended the Virginia Code to provide that "a marriage between persons of the same sex is prohibited" and that same-sex marriages from other states and jurisdictions "shall be void in all respects in Virginia," as well as "any contractual rights created by such marriage[s] . . ."            

In 2004, in response to successful challenges to similar prohibitions against same-sex marriages in other states, Virginia's General Assembly proposed an amendment to the Virginia Constitution defining marriage as between one man and one woman, which was ratified by a majority of Virginia voters in 2006 and implemented as Article I, Section 15-A of the Virginia Constitution.  The Virginia Legislature also adopted the Affirmation of Marriage Act in 2004, which provided that "A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited."

In July 2013, two men who had been in a relationship for over 20 years, but were unable to obtain a marriage license, filed a complaint against, among others, the then Virginia governor and attorney general, pursuant to 42 U.S.C. § 1983.  The complaint was later amended to add two women, also a couple of over 20 years, who were recently legally married in California. The women claimed they were aggrieved by an inability to have their California marriage recognized in Virginia, and therefore could not, among other things, obtain insurance coverage for each other under their respective employer-provided health insurance plans, or receive FMLA protections.

The plaintiffs filed their lawsuit less than a month after the Supreme Court issued the Windsor decision, ruling unconstitutional the section of the Defense of Marriage Act (DOMA) requiring federal laws to ignore same-sex marriages legally entered into under applicable state law.  Notably, the Windsor decision struck down a section of DOMA that denied federal legal recognition of the marital status granted to same-sex couples in 12 states and the District of Columbia, but left open the question presented in Bostic of whether state laws banning same-sex marriages were unconstitutional.  Just three weeks ago, Virginia's Attorney General and the State Registrar of Vital Records, who was also a named defendant, submitted a formal change in position in Bostic, abandoning their defense of Virginia's laws.1

What the Court Held

The court first addressed two preliminary challenges to the plaintiffs' case:  that they lacked standing; and that there had not been sufficient doctrinal development to overcome the Supreme Court's dismissing of a constitutional challenge to a state's same-sex marriage laws in 1972.2

On the issue of standing, the court found that both couples had standing, having suffered the injuries of being denied a marriage license and the "stigmatic injury" of humiliation caused by Virginia law.  Moreover, the court held that the state officials prohibiting one of the couples from obtaining a marriage license and refusing to recognize the other couple's California-issued marriage license were proper defendants.  With regard to doctrinal developments, the issue before the court was the precedential value of the Supreme Court's dismissal of a similar suit for "want of a substantial federal question" over 40 years ago.  The court held that a 1972 summary dismissal was no longer binding, citing Windsor as well as the recent decision of a sister federal district court addressing whether Utah law prohibiting same-sex marriages was constitutional.

The court then considered whether Virginia's marriage laws denied the plaintiffs their rights to due process and equal protection, answering affirmatively to both questions.

First, the court acknowledged that marriage is a fundamental right under the Due Process Clause of the Fourteenth Amendment, inseparable from rights to privacy and intimate association.  It is therefore protected by strict scrutiny which only permits infringements that serve a compelling state interest.  The court rejected the defendants' argument that the couples were in fact attempting to create a new right, stating that they "ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia's adult citizens" and noting that fears of a "dilution of the sanctity of marriage" echoed past defenses of anti-miscegenation laws. 

The court further rejected the defendants' primary justifications of its marriage laws, which appealed to tradition, federalism, and "responsible procreation."  In rejecting the defendants' federalism argument, the court acknowledged that generally powers regarding domestic relations properly rest with state and local government, but federal courts have intervened when state regulations have infringed on the right to marry.            

The court then addressed whether the marriage laws passed constitutional muster under the Equal Protection Clause.  The court noted that it was undisputed that same-sex couples may be similarly-situated to opposite-sex couples with respect to their love and commitment to one another, but that the proponents of the state's laws advanced the argument that the laws' primary purpose was procreation and child-rearing.  This, however, was inconsistent with the state's previous rationalizations, and failed to recognize that same-sex couples were already successfully raising children, but were denied the benefits and protections of marriage.  Although the court declined to decide whether laws effecting same-sex couples warranted heightened scrutiny, it found that the laws did not even meet rational basis scrutiny. 

What Does This Mean For Employers?

The court stayed the execution of its injunction enjoining the Commonwealth from enforcing laws prohibiting same-sex marriage.  So, for the time being, this decision will have no effect on employers.  But, if the U.S. Court of Appeals for the Fourth Circuit upholds the district court's decision, it could significantly impact Virginia employers.  

First, with gay and lesbian couples no longer prohibited from obtaining marriage licenses in Virginia, they will be able to avail themselves of spousal benefits under employer-administered medical and retirement plans without having to pay state taxes for imputed income.  Along with the Windsor holding, this decision will mean that Virginia same-sex marriages are recognized not only for purposes of plans subject to the Employee Retirement Income Security Act (ERISA), but also for purposes of plans subject only to state law, such as public (that is, governmental) plans and plans of church-affiliated institutions.   

Second, the decision means that same-sex married couples residing in Virginia will be entitled to the same right to medical leave to attend to sick spouses or parents, as well as leave for childbirth or adoption (at the present time, federal law recognizes marital status based on state of residency for FMLA purposes, but state of celebration for ERISA purposes).  Under the FMLA, an employee can take up to 12 weeks of such unpaid, job-protected leave.  If both spouses work for the same employer, however, they will have only 12 weeks between the two of them for FMLA leave.

Recommendations for Employers

Many employers have already updated their employee handbooks and company policies to acknowledge and accommodate same-sex couples recognized under federal law, but employers in states that have not recognized same-sex marriage may have deferred action.  Nevertheless, because ERISA and the Internal Revenue Code recognize same-sex marriages entered into in states or other countries, regardless of place of residence, employers in any state may be confronted with the necessity of recognizing a same-sex marriage for benefit plan purposes.

For employers with employees located in states that do not recognize same-sex marriage (including, for now, Virginia and Utah), the status of federally recognized same-sex marriages may require separate tax withholding and reporting unless and until these cases work their way through the appellate process.  Since Windsor, the federal district courts that have encountered similar constitutional challenges to state laws prohibiting same-sex marriages have unanimously found them to be unconstitutional.  But the courts of appeals will have to wrestle with the broad affirmation of the constitutional rights of same-sex couples contained in Windsor's majority opinion in contrast to that same opinion's carefully-limited language affirming the rights of states to establish their own standards for marriage.  

Footnotes

1 As a result, the clerk for Virginia's Prince William County Circuit Court stepped in as an Intervenor-Defendant to replace the State Registrar.

2 Baker v. Nelson, 191 N.W.2d 185, 187 (Minn. 1971), appeal dismissed, 409 U.S. 810 (1972). 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions