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Considerations Regarding Same Sex Relationships in Virginia

Throughout the United States, same sex marriages are entangled in political controversy with little unity on the topic. The Washington DC Metropolitan area poses a good example: In D.C., same-sex marriages are legal; in Maryland, they may be legalized in 2013; in Virginia, they are illegal.

In Maryland, Governor Martin O'Malley signed legislation legalizing same sex marriages, effective January 1, 2013. However, there is a pending referendum on the ballot to repeal the law. Until the law passes, same-sex partners cannot get divorced in Maryland. There is an interesting article about this topic on the April 10, 2012 Washington Post, A Court's Conundrum: When same-sex partners want to split written by Ellen McCarthy: http://www.washingtonpost.com/lifestyle/style/a-courts-conundrum-when-same-sex-partners-want-to-split/2012/04/09/gIQAvhep6S_story.html

Throughout the United States, same sex marriages are entangled in political controversy with little unity on the topic. The Washington DC Metropolitan area poses a good example: In D.C., same-sex marriages are legal; in Maryland, they may be legalized in 2013; in Virginia, they are illegal.

In Maryland, Governor Martin O'Malley signed legislation legalizing same sex marriages, effective January 1, 2013. However, there is a pending referendum on the ballot to repeal the law. Until the law passes, same-sex partners cannot get divorced in Maryland. There is an interesting article about this topic on the April 10, 2012 Washington Post, A Court's Conundrum: When same-sex partners want to split written by Ellen McCarthy: http://www.washingtonpost.com/lifestyle/style/a-courts-conundrum-when-same-sex-partners-want-to-split/2012/04/09/gIQAvhep6S_story.html

In Virginia, same sex marriages remain illegal with no change in sight. For couples who are married in other states and move to Virginia, this means that Virginia will treat their marriage as void and, as such, same-sex couples cannot get divorced from an unrecognized marriage. Dividing up marital assets can present a further challenge if the assets were acquired during the relationship.

Virginia does not recognize civil partnerships or same sex marriage, nor does it appear likely to do so in the near future. Nevertheless, a key issue with respect to enforcement of rights for same sex couples is whether their rights "arose" due to the same-sex partnership. For example, Virginia recognized and enforced a Vermont court order providing a non-biological parent rights of custody because her rights were not created by her same-sex union, but rather on the basis of the biological parent (her same-sex wife) filing court papers naming the child as the "biological or adoptive" child of both parties. Miller-Jenkins v Miller-Jenkins, 276 Va. 19 (2009). This is an important distinction in Virginia because Virginia will not recognize nor enforce any rights which arise or are created on the basis of a same-sex partnership.

In 1996, the United States passed the Defense of Marriage Act - a federal law allowing states to independently decide whether to recognize civil unions and same sex marriages (DOMA, 28 U.S.C. 1738C). This law effectively voids the Full Faith and Credit Clause of the U.S. Constitution with respect to recognition of same sex relationships legally entered into in other jurisdictions. Individual states are not required to recognize such unions nor are they required to recognize rights or claims arising from such relationships (including contractual rights, inheritance rights and rights to be considered "family" for purposes of making end-of-life medical decisions). The Supreme Court will likely need to decide whether federal legislation voiding the application of the Full Faith and Credit Clause of the U.S. Constitution is itself unconstitutional.

Virginia has enacted specific legislation prohibiting marriage between persons of the same sex, and mandating that any such marriages entered into in other jurisdictions will be treated as void and unenforceable in Virginia (Virginia Code § 20-45.2). In addition, civil unions are prohibited in the same manner as same-sex marriages (Virginia Code § 20-45.3).

Until 1967, Virginia had a similar law, an anti-miscegenation statute ("The Racial Integrity Act of 1924"), which made it a crime for any white person to marry a non-white person. In 1967, the United States Supreme Court decided the case of Loving v. Virginia, 388 U.S. 1 (1967) which ruled that the Virginia statute was unconstitutional. Since then, people of any race have been free to marry. The Racial Integrity Act of 1942 is now viewed as prejudicial and unjust. It will be interesting to see whether the current prohibitions against freedom to marry will likewise be declared unconstitutional, prejudicial and unjust.

Much of the Western world has legalized same sex marriage including Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, Spain, South Africa and Sweden, and the growing trend seems to be one of acceptance over discrimination.

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Falls Church, VA 22042
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