Virginia is on track to remove a section of its constitution that defines marriage as solely between one man and one woman.
The now-defunct provision enshrined the state’s ban on same-sex marriage when it was ratified in 2006. It signalled to the rest of the country, and to the world, that more than half of Virginia voters were not open to legal recognition of same-sex couples.
But 14 years have passed and advocates for marriage equality say voters are now largely on board with same-sex marriage. The U.S. Supreme Court made marriage equality the law of the land in 2015, and now state lawmakers say it’s time to align Virginia’s constitution with federal law.
The Virginia House and Senate have both passed resolutions, here and here, that would replace the marriage amendment with language that recognizes marriage as a fundamental right, regardless of sex or gender. In order to amend the Virginia Constitution, the General Assembly must pass the resolution twice before putting the question to voters in a statewide referendum.
For Carol Schall and her partner Mary Townley, it would be another incremental step in a decades-long battle for equality and acceptance in the commonwealth.
In 2012, the couple was planning a trip that required them to renew their teenage daughter Emily's passport.
It should have been a routine appointment. But the passport specialist was struggling with the paperwork. She asked the couple to clarify their relationship to Emily. Townley said she had given birth to Emily but that Schall was also her mother.
“In front of Emily, she crossed my name off and said, ‘You’re nothing here,’ Schall said.
It was a very matter-of-fact statement, Schall said. It wasn’t meant to be an insult.
“When you hear the story, it’s horrid for us, because it was very personal,” Schall said. “But she was literally just filling out the form on behalf of the state.”
It’s just an example of how high the stakes are in this debate, Schall said.
“It’s not about wedding cakes. It’s not about the celebration. It’s not about the religious ceremony. We need marriage so we can protect each other,” she said.
Schall and Townley later became plaintiffs in the Virginia case that resulted in a federal court ordering Virginia to allow same-sex marriages in October 2014.
But it would ultimately be the landmark U.S. Supreme Court ruling a year later, Obergefell v. Hodges, that would legalize same-sex marriage nationwide.
Sen. Adam Ebbin (D-Alexandria) introduced one of the measures to update Virginia’s constitution.
“Our constitution has to reflect the law of the 21st century,” Ebbin said. “People need to be able to read the constitution and have faith that it accurately reflects the state of the law. Further, rather than have a stop sign for committed couples in Virginia, we should have a welcome mat.”
For many advocates, this isn’t just a symbolic message. There could be real-life legal ramifications for keeping the marriage ban in Virginia’s constitution. Should anything change at the federal level, Virginia would default to that position.
“It’s a possibility that we deserve to protect Virginia couples from,” Ebbin said.
Some legal scholars don’t see this as a real possibility. Michael Klarman is a legal historian and constitutional law professor at Harvard.
“I think there is close to a zero chance that this Court has a majority to overturn Obergefell. I am pretty sure the Chief Justice has no interest in doing so, and I think it very likely that Kavanaugh and Gorsuch don’t either,” Klarman said.
He said the main reason is public opinion. Since the early 2000s, support for marriage equality has grown at a rate of about 1-2% every year.
“These Justices are not crazy; they have no interest in overturning a ruling that popular,” Klarman said. “And they would have little interest in being so obviously on the wrong side of history. So, while there are all sorts of awful things the most conservative Court in 100 years might do, this is not among the things I would lose sleep over.”
Still, for Carol Schall, it’s important to keep Virginia moving forward, not backward.
“This marriage amendment stands in the way, stood in the way and has the potential to continue to stand in the way of people who just really want to live and let live and have the state stay out of the way of them being a family,” she said.
