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What ‘Windsor’ means for Virginia’s same-sex couples

same sex coupleSame-sex couples want to be able to live wherever they choose and have their relationships recognized in the same manner as heterosexual couples. They and their supporters have carried this fight to statehouses and federal courts around the country. Currently there are approximately 40 cases pending in courts in the United States related to same-sex issues. Virginia is no exception.

An extensive body of law has been developing in which some states have granted same-sex couples the right to marry, with all its attendant privileges and responsibilities, while other states, including Virginia, have banned such marriages. This would mean, for example, that members of a loving same-sex couple who marry in Delaware and later move to Virginia would have all the rights and responsibilities that attended their marriage in Delaware dissolved immediately and automatically simply because they moved to a new house that happened to be in another state.

Historically, 1996 was an important year in the fight for marriage equality. A constitutional fight over the ban on same-sex marriage was going on in Hawaii. At that time, a majority of the U.S. population was opposed to same-sex marriage. This spurred the U.S. Congress to enact the Defense of Marriage Act (DOMA) on Sept. 21, 1996. At that time there was not a single state which recognized same-sex marriages. There was, however, a perceived danger that Hawaii would grant recognition, jeopardizing the ban on same-sex marriage in other states. Not only did Section 3 of DOMA provide that marriage could only mean the union of one man and one woman, Section 2 of DOMA went so far as to provide that no state could be required to give recognition to a same sex-marriage performed in another state, or any attendant rights stemming from such a marriage, even if valid under the laws of the place of celebration.

n 2004, Massachusetts was the first state to allow same-sex marriages, as a result of a federal court ruling. A great deal of national debate took place in the ensuing years, with strong voices and deep emotion on each side of the issue. Mini-DOMAS were enacted in a number of states, including Virginia, while in other states, same-sex marriages were legitimized or civil unions were recognized and given many of the same privileges as marriages. In 1997, Virginia passed a statute (§ 20-45.2) declaring same sex marriages performed in other states and the contractual rights arising therefrom “void.” In 2004, Virginia extended this rule to civil marriages and partnership contracts (§ 20-45.3). In 2006, the Virginia Constitution was amended to restrict the definition of marriage to one man and one woman and to prohibit recognition of any rights stemming from a same-sex relationship. Clerks of Court throughout the commonwealth were prohibited from issuing marriage licenses to same sex-couples. Code § 20-28 made it a misdemeanor for anyone to perform a marriage ceremony without a lawful marriage license having been issued.

Virginia’s ban on such marriages was challenged in federal court in the case of Bostic v. Rainey by two same-sex couples, one from Norfolk and one from Chesterfield. On Feb. 13, U.S. District Judge Arenda Wright Allen declared the ban to be unconstitionational. She stayed her ruling so the case could go up on appeal.

Back in June of 2013, reflecting sweeping changes in how the U.S. public and a number of states viewed the institution of marriage and individual liberties, in a highly controversial decision, the United States Supreme Court ruled in the Case of U.S. v. Windsor that Section 3 of the Defense of marriage Act (DOMA) prohibiting recognition of same-sex marriages is unconstitutional. This landmark decision has had far reaching effect, even though it did not address Section 2 of DOMA relating to whether a non-recognition state must recognize marriages which were validly performed in another state and it did not specifically address whether there is a fundamental right to marry. These issues can be expected to make their way to the U.S. Supreme Court in other cases.

There are over a thousand federal laws in which marital status is a factor, and Windsor mandated that for all federal purposes, lawful marriages must be recognized. The question of whether the state of celebration or the state of residence controls the legality of the marriage was left open. Gradually after Windsor, departments of the federal government announced their treatment of this issue. For example, state of celebration controls:

  • All federal taxes, military benefits, and immigration
  • All federal employment purposes (with application deadlines included)

Social Security benefits, on the other hand, have received a different treatment because eligibility as defined in the social security statutes is based on the place of residence. A married spouse living in a non-recognition state has no current entitlement to benefits. Not wanting to sanctify unequal treatment, the Administration has encouraged married couples in non-recognition states such as Virginia to file an application for any benefits to which they feel they should be entitled, in order to preserve their filing dates while the issues are being sorted out. Similarly, Medicaid benefits and many bankruptcy matters will be affected by the state of residence. The Windsor case also applies to private pension plans that fall under the requirements of ERISA.

For family law practitioners, elder law attorneys, estate planning lawyers, bankruptcy lawyers, and other practitioners, it is important to recognize that the laws are rapidly changing and that the changes may be beneficial or detrimental to an individual depending on their particular facts and circumstances. Moreover, practitioners can be expected to have to advise couples on the advantages and disadvantages of a decision to marry, of a choice of state in which to marry, and of a choice of a state in which to live. It is particularly important for attorneys to examine both federal and state statutes and to be aware of how the law is trending in the area of pursuit of the right to marry any time they are representing a person in a same sex relationship. New developments are occurring daily.

– By Phoebe P. Hall. Hall practices law with Hall & Hall in Richmond.

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