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...