Could the Governor of Virginia order the Department of Taxation to let same-sex couples file joint state income tax returns?

Plain-English summary

Delegate Robert Marshall (a principal sponsor of the 2006 Virginia constitutional marriage amendment) asked Attorney General Cuccinelli a politically pointed question: could a new Virginia Governor, by executive order, direct the Department of Taxation to let same-sex couples file joint Virginia income tax returns?

The question came at a specific moment. The U.S. Supreme Court had decided United States v. Windsor, 133 S. Ct. 2675 (2013) the prior June, striking down § 3 of the federal Defense of Marriage Act and requiring the federal government to recognize same-sex marriages valid under state law. The IRS responded by allowing same-sex couples married under any state law to file joint federal returns. Many states piggyback off the federal return for state filing purposes. Virginia at the time required state filing status to be the same as federal filing status for most purposes (§ 58.1-326), so the Windsor shift created direct administrative pressure. Virginia's then-incoming Governor was perceived to be open to administrative accommodation. Delegate Marshall asked the AG to put the brakes on any such directive.

The AG concluded the directive would be impermissible on two independent grounds, both of which have since been overtaken by federal constitutional law:

Separation of powers. Taxation is a legislative power vested in the General Assembly (Va. Const. art. IV, § 1). The General Assembly had enacted Chapter 3 of Title 58.1. Section 58.1-324 used the gender-specific terms "husband" and "wife" for joint filing, and even gender-neutral references to "spouse" in other Title 58.1 sections had to be read consistently with the state marriage amendment. Because the General Assembly had spoken, the Governor could not override that legislative choice by directive.

Article I, § 15-A. Virginia's 2006 Marshall-Newman Amendment (Article I, § 15-A) provided that "only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions" and barred the Commonwealth from creating "another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage." A directive recognizing same-sex couples as joint filers would, the AG concluded, "approximate the design, qualities, significance, or effects of marriage" for couples not recognized as married under Virginia law. The Governor, whose authority flowed from the same Virginia Constitution, could not by executive action contravene the Constitution.

The AG also addressed Windsor directly in a footnote: the opinion described the holding as limited to the federal government's definition of marriage and emphasized that § 2 of DOMA (allowing states to refuse to recognize out-of-state same-sex marriages) was not before the Court and "remains valid law."

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The constitutional underpinning of this opinion has been entirely overtaken by subsequent federal constitutional law.

• In July 2014, the U.S. Court of Appeals for the Fourth Circuit in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), struck down Virginia's marriage amendment as a violation of the Fourteenth Amendment. The Supreme Court declined to review Bostic in October 2014, making same-sex marriages legal in Virginia.
• On June 26, 2015, the U.S. Supreme Court decided Obergefell v. Hodges, 576 U.S. 644 (2015), holding that the Fourteenth Amendment requires all states to license same-sex marriages and to recognize same-sex marriages performed in other states.
• Virginia same-sex married couples have been able to file joint state income tax returns since 2014, both directly under Bostic and as a downstream consequence of Windsor and the IRS's Rev. Rul. 2013-17 applied to Virginia's federal-conformity tax statutes.
• Article I, § 15-A of the Virginia Constitution remains in the Constitution but is unenforceable under Bostic and Obergefell.
• The General Assembly in 2020 removed the criminal prohibition on same-sex marriage (former § 20-45.2) and enacted protections for marriage in Virginia. Virginia voters in November 2026 are scheduled to consider a constitutional amendment to formally remove the marriage amendment language from the state constitution; the disposition of that referendum should be checked before treating Article I, § 15-A as either currently effective or formally repealed.

The separation-of-powers and "Governor cannot suspend a duly enacted regulation/statute" analysis (parallel to AG Opinion 13-109, issued by the same AG just a week earlier) still holds as a general matter of Virginia constitutional law. But the specific application to same-sex couples' joint filing has been entirely overtaken: Virginia's tax statutes are now applied to recognize same-sex married couples as married for filing purposes.

Common questions

Can same-sex couples now file joint Virginia income tax returns?
Yes. Bostic v. Schaefer (4th Cir. 2014) and Obergefell v. Hodges (2015) require Virginia to recognize same-sex marriages. Virginia's federal-conformity tax statutes (e.g., § 58.1-326) pull through the federal filing status, and federal law treats same-sex married couples as married for tax purposes. The Virginia Department of Taxation has accepted same-sex joint returns since 2014.

Is Article I, § 15-A still in the Virginia Constitution?
Yes, the text is still there, but it is unenforceable. Federal constitutional law (Obergefell) supersedes contrary state constitutional or statutory provisions. The Virginia General Assembly placed a repeal of Article I, § 15-A on the ballot for the November 2026 election; the final status depends on the referendum result and should be verified.

Why did the AG cite Article I, § 15-A so heavily if it was constitutionally vulnerable?
At the time of the opinion (January 2014), Bostic had been decided at the district court level (February 2014 striking it down, but with that injunction stayed pending appeal) and the Supreme Court had not yet weighed in. The AG's opinion was framed against the then-effective Virginia constitutional text. The footnote acknowledging Windsor and treating DOMA § 2 as good law reflected the legal landscape immediately before the appellate decisions that followed.

What was the Marshall-Newman Amendment?
The colloquial name for Article I, § 15-A of the Virginia Constitution, named after Delegate Marshall and Senator Stephen Newman. It passed by referendum in November 2006 with about 57% support. It defined marriage as between one man and one woman and prohibited recognition of marriage-like legal statuses for unmarried couples.

Does the separation-of-powers logic still matter?
Yes, for executive-branch action generally. The AG's holding that a Governor cannot override clear legislative choices by executive directive remains the general rule (see also Opinion 13-109 issued just a week earlier on suspending validly adopted regulations). What changed is the underlying substantive law on same-sex marriage. The Governor cannot now refuse to recognize same-sex married couples for tax purposes either, because both federal and (effectively) state law now require recognition.

Did anything in the 2014 opinion drive subsequent litigation?
The opinion is part of the historical record around the Bostic litigation, which was already pending at the time it was issued. The opinion itself is not authority cited in Bostic or Obergefell, which decided the federal constitutional questions on their own terms.

What did "approximate the design, qualities, significance, or effects of marriage" mean?
The phrase in Article I, § 15-A was meant to reach civil unions, domestic partnerships, and other marriage-substitute legal statuses, not just marriage itself. The AG read joint filing status as such an "effect of marriage" because it was a tax benefit available only to married couples under Virginia law at the time.

Background and statutory framework

• Va. Const. art. V, § 1: chief executive power vested in the Governor.
• Va. Const. art. V, § 7: take care clause.
• Va. Const. art. I, § 5; art. III, § 1: separation of powers.
• Va. Const. art. IV, § 1: legislative power vested in the General Assembly.
• Va. Const. art. I, § 15-A: state marriage amendment (now unenforceable under Bostic and Obergefell).
• Va. Code § 58.1-301(A): federal-conformity rule for Title 58.1 terms.
• Va. Code § 58.1-321(B): filing requirements with gender-neutral "spouse" language.
• Va. Code § 58.1-324: joint return provisions using "husband" and "wife."
• Va. Code § 49-1: oath of office for elected Virginia officials, including to support the Virginia Constitution.

The interpretive moves (as of January 2014, and superseded by subsequent constitutional rulings):

• The Governor cannot use executive authority to override clear legislative tax-filing rules.
• Joint filing status is an effect of marriage; recognizing it for unmarried couples violates Article I, § 15-A.
• Windsor does not require Virginia to recognize same-sex marriages, only to require the federal government to recognize state-recognized marriages.

Citations

• Va. Const. art. I, § 5
• Va. Const. art. I, § 15-A
• Va. Const. art. III, § 1
• Va. Const. art. IV, § 1
• Va. Const. art. V, § 1
• Va. Const. art. V, § 7
• Va. Const. art. II, § 7
• Va. Code § 58.1-301(A)
• Va. Code § 58.1-321
• Va. Code § 58.1-324
• Va. Code § 49-1
• Lewis v. Whittle, 77 Va. 415 (1883)
• United States v. Windsor, 133 S. Ct. 2675 (2013)
• Marshall v. N. Va. Transp. Auth., 275 Va. 419, 657 S.E.2d 71 (2008)
• 1945-46 Op. Va. Att'y Gen. 144
• 1983-84 Op. Va. Att'y Gen. 180
• 2006 Op. Va. Att'y Gen. 36
• 2012 Op. Va. Att'y Gen. 119

For subsequent developments (provided as currency context, not part of the original opinion):

• Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. denied, 574 U.S. 999 (2014)
• Obergefell v. Hodges, 576 U.S. 644 (2015)
• IRS Rev. Rul. 2013-17 (treating same-sex married couples as married for federal tax purposes)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/13-114_Marshall.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

January 10, 2014

The Honorable Robert G. Marshall
Member, House of Delegates
Post Office Box 406
Richmond, Virginia 23218

Dear Delegate Marshall:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether a Governor, by executive order, can require or direct the Finance Department or the Department of Taxation to allow same-sex couples to receive joint marital status for purposes of filing Virginia income tax returns.

Response

It is my opinion that a Governor may not direct or require any agency of state government to allow same-sex couples to receive joint marital status for Virginia income tax returns. Such a directive would represent an attempt to exercise legislative powers in violation of the constitutionally mandated separation of powers and would also violate the express terms of Article I, § 15-A of the Virginia Constitution.

Applicable Law and Discussion

Article V, § 1 of the Constitution of Virginia establishes that "[t]he chief executive power of the Commonwealth shall be vested in a Governor." The Supreme Court of Virginia has noted that "[u]nder our system of government, the governor has and can rightly exercise no power except such as may be bestowed upon him by the constitution and the laws."[1] No constitutional or statutory provisions explicitly grant to the Governor the authority to issue executive orders. Governors historically have issued executive orders based upon the authority inherent in the constitutional duty of a Governor to "take care that the laws be faithfully executed."[2] Prior opinions of the Attorney General recognize that the Constitution grants to the Governor a general reservoir of powers as chief executive of the Commonwealth.[3] Thus, the authority of the Governor to issue executive orders is well established in the law and history of the Commonwealth.

The scope of such authority, however, is limited.[4] A Governor may not use an executive order (or any other means) to exercise legislative power, which is vested solely in the General Assembly.[5] Furthermore, a governor may not issue executive orders or take other action that is contrary to express provisions of the Virginia Constitution.[6] Thus, if an executive order amounts to an exercise of legislative power or violates a provision of the Virginia Constitution, the Governor is without power to issue it and the order necessarily is void.

Applying this background to your specific inquiry, it becomes clear that a Governor may not direct or require a state agency to allow a change in filing status to permit same sex couples to receive joint marital status for Virginia income tax returns for two reasons. First, it would represent an impermissible attempt by the Governor to exercise legislative power belonging to the General Assembly. Second, such a directive would violate the express terms of Article I, § 15-A of the Virginia Constitution.

At the outset, it must be recognized that the power of taxation is a legislative power. The Virginia Supreme Court has

long recognized the principle that the power of a government to tax its people and their property is essential to government's very existence. This power to tax, which is inherent in every sovereign state government, is a legislative power that the Constitution vests in the General Assembly.[7]

Regarding income taxation, the General Assembly has exercised its legislative power by enacting Chapter 3 of Title 58.1 of the Code of Virginia.[8] In Chapter 3, the General Assembly, through the words it has chosen, has made clear that joint returns are available only to traditional married couples. For example, § 58.1-324 of the Code of Virginia uses the gender-specific terms "husband" and "wife," making clear an intention to have the provision apply to couples composed of one man (the husband) and one woman (the wife). Furthermore, even when the relevant provisions of Chapter 3 contain the gender neutral "individual and spouse,"[9] such language must be interpreted consistent with the provisions of Article I, § 15-A of the Virginia Constitution, which limits marriage to one man and one woman.

Because the power of taxation is legislative and because the General Assembly has spoken directly on the topic, there is no avenue for a Governor to countermand existing law to require or direct a state agency to allow same-sex couples to receive joint marital status for Virginia income tax returns.[10] Any attempt by a Governor to do so would represent an unconstitutional attempt to exercise legislative power in violation of the separation of powers.[11]

Irrespective of the limitations imposed by the separation of powers provisions, the Virginia Constitution nonetheless otherwise prevents a Governor from requiring or directing a state agency to allow same sex couple to receive joint marital status for Virginia income tax returns. A Governor, whose powers flow from the Virginia Constitution, has no ability to violate the provisions of the same Virginia Constitution.[12] Article I, § 15-A of the Virginia Constitution provides that

only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

Thus, because joint filing is limited to married couples, a Governor cannot, consistent with the Virginia Constitution, expand the class of people who may file jointly to same sex couples because doing so would have the Commonwealth "approximate the design, qualities, significance, or effects of marriage ..." for persons who are not recognizable as married under Virginia law. Accordingly, Article I, § 15-A of the Virginia Constitution serves as an additional bar to a Governor requiring or directing a state agency to allow same-sex couples to receive joint marital status for Virginia income tax returns.

Conclusion

Accordingly, it is my opinion that a Governor may not direct or require any agency of state government to allow same-sex couples to receive joint marital status for Virginia income tax returns. Such a directive would represent an attempt to exercise legislative powers in violation of the constitutionally mandated separation of powers and would also violate the express terms of Article I, § 15-A of the Virginia Constitution.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

1. Lewis v. Whittle, 77 Va. 415, 420 (1883).
2. Va. Const. art. V, § 7.
3. See 1983-84 Op. Va. Att'y Gen. 180; 1945-46 Op. Va. Att'y Gen. 144.
4. See generally 2006 Op. Va. Att'y Gen. 36.
5. See Va. Const. art. I, § 5; art. III, § 1; art. IV, § 1. See also 2012 Op. Va. Att'y Gen. 119 n.44 (listing instances in which this principle has been applied).
6. Lewis, 77 Va. at 420.
7. Marshall v. N. Va. Transp. Auth., 275 Va. 419, 427, 657 S.E.2d 71, 75 (2008) (internal citations omitted). Because taxation is a legislative power, it may only be exercised by the General Assembly. See Va. Const. art. IV, § 1 ("The legislative power of the Commonwealth shall be vested in a General Assembly ....").
8. Va. Code Ann. § 58.1-301(A) (2013) provides that "[a]ny term used in this chapter shall have the same meaning as when used in a comparable context in the laws of the United States relating to federal income taxes, unless a different meaning is clearly required." As discussed more fully below, the precise terms chosen by the General Assembly and the existence of Article I, § 15-A of the Virginia Constitution make clear that same-sex couples are not authorized to file joint returns in Virginia regardless of the position taken by the federal government. Accordingly, to the extent the federal government allows Virginia same sex couples to file joint federal tax returns, "a different meaning is clearly required ..." for Virginia income tax purposes. The United States Supreme Court's decision in United States v. Windsor, 133 S. Ct. 2675 (2013) does not alter the analysis. The holding in Windsor is limited to the federal government's definition of "marriage" and "spouse." The holding applies only to "those lawful marriages" entered into in a state that, through its marriage laws, "sought to protect in personhood and dignity" same-sex unions. Windsor, 133 S. Ct. at 2696. Indeed, the Court made clear that § 2 of the federal Defense of Marriage Act, which allows states to refuse to recognize same-sex marriages performed under the laws of other states, was not at issue, and thus it remains valid law. Windsor, 133 S. Ct. at 2682.
9. See, e.g., Va. Code Ann. § 58.1-321(B) (2013). I note that § 58.1-321 was amended after Article I, § 15-A of the Virginia Constitution became effective. Accordingly, to comply with the Virginia Constitution, the use of the term "spouse" must be understood to refer only to a marriage between one man and one woman.
10. Although the Department of Taxation does have authority "to develop procedures or guidelines for implementation of the provisions" of certain portions of Chapter 3 of Title 58.1, any procedure or guideline that would allow joint filings by same-sex couples would be subverting the statutory scheme as opposed to implementing it and would therefore be void.
11. The separation of powers is a bedrock principle of Virginia government. It is so significant that it appears in two separate provisions of the current Virginia Constitution. See Va. Const. art. I, § 5 ("That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct ....") and Va. Const. art. III, § 1 ("The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time ...."). The concept of separation of powers in Virginia government first appears as § 5 of the Virginia Declaration of Rights of 1776. It has continued in every Virginia Constitution since then. See Va. Const. of 1830 art. I, § 5 & art. II; Va. Const. of 1851 art. I, § 5 & art. II; Va. Const. of 1864 art. I, § 5 & art. II; Va. Const. of 1870 art. I, § 7 & art. II; and Va. Const. of 1902 §§ 5 & 39.
12. See Va. Const. art. II, § 7; Va. Code Ann. § 49-1 (2013) (providing that all elected officers are to take an oath or affirmation swearing or affirming to "support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia ....").