If a same-sex couple in Virginia put both their names on a deed, did they have to pay the recordation tax that a husband and wife would skip?

Plain-English summary

After the federal courts struck down Virginia's ban on same-sex marriage in Bostic v. Rainey (E.D. Va.) and Bostic v. Schaefer (4th Cir.), Fairfax County Clerk of Court John Frey wrote to the Attorney General with a practical question: when two married people put their names on a deed, the recordation tax statute exempts deeds where "a husband and wife are the only parties." Does that exemption apply when the two parties are a same-sex married couple?

Attorney General Herring's answer was yes. The Bostic injunction prohibits any Virginia law from being applied in a way that denies same-sex couples the rights and privileges afforded opposite-sex married couples. The recordation tax exemption in Va. Code § 58.1-810.3 is one of those privileges. Reading "husband and wife" to mean only opposite-sex couples would give a tax benefit to one kind of marriage that another kind does not get, exactly what Bostic forbids.

Herring went further. He noted that variations of "husband and wife," "man and wife," "wife," and "husband" appear in the Code of Virginia at least 61 times, covering insurance contracts, joint property ownership, adoption, and more. All of those provisions, he said, must be read to apply equally to same-sex married couples.

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. The federal constitutional rule was nationalized in Obergefell v. Hodges (2015), and the Virginia General Assembly has since amended numerous Code provisions to use gender-neutral spousal terminology. Verify current law before relying on any specific rule mentioned here.

Common questions

Did the AG say clerks had to charge the same recordation tax to gay and straight married couples?

He said the opposite. Both opposite-sex and same-sex married couples were equally entitled to the § 58.1-810.3 exemption, meaning deeds between spouses are not taxed when the recordation tax was already paid on the original deed.

What was the legal hook that forced this reading?

The Bostic judgment enjoined Virginia from enforcing any marriage law "if and to the extent that it denies to same sex couples the rights and privileges of marriage that are afforded to opposite sex couples." A recordation tax exemption is a "right or privilege" of marriage. Excluding same-sex spouses from it would violate the injunction.

Did this opinion extend to other Virginia statutes that used "husband and wife"?

The opinion's holding addressed only § 58.1-810.3, but Herring's footnote said the same reasoning applied to all 61+ Code provisions using spousal terminology, including insurance, joint property, and adoption.

Was the opinion an interpretation of state law, or a federal-court ruling that clerks had to follow?

It was an AG opinion, which is persuasive but not binding. The underlying legal force came from the federal Bostic judgment. Clerks who refused to apply the exemption to same-sex couples would have been violating the federal injunction, regardless of what the AG said.

Background and statutory framework

Virginia's Recordation Tax Act (Va. Code §§ 58.1-800 through 58.1-817) imposes a tax on the privilege of recording deeds and other documents at the circuit court. The General Assembly carved out numerous exemptions. Section 58.1-810.3 says that when the tax has been paid at the time of the original deed, "no additional recordation tax shall be required for admitting to record . . . [a] deed to which a husband and wife are the only parties."

The Bostic litigation produced a federal-court judgment striking down Virginia's same-sex marriage ban (Va. Const. art. I, § 15-A and Va. Code §§ 20-45.2 and 20-45.3) and enjoining enforcement of any other Virginia marriage law to the extent it denied same-sex couples the rights afforded opposite-sex couples. Once the Fourth Circuit's mandate issued on October 6, 2014, the district court's judgment took effect.

Herring invoked a long-standing canon of construction known as constitutional avoidance: where a statute can be read two ways, courts should adopt the reading that avoids constitutional problems. Reading § 58.1-810.3 to apply only to opposite-sex couples would have created a constitutional problem under Bostic. So the statute had to be read more broadly.

Citations

• Va. Code Ann. § 2.2-505 (advisory opinions)
• Va. Code Ann. § 58.1-810.3 (recordation tax exemption for spouse-to-spouse deeds)
• Va. Code Ann. §§ 58.1-800 through 58.1-817 (Recordation Tax Act)
• Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014)
• Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014)
• United States v. Delaware & Hudson Co., 213 U.S. 366 (1909)
• Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988)
• Dean v. Paolicelli, 194 Va. 219, 227, 72 S.E.2d 506, 511 (1952)
• Va. Code Ann. §§ 38.2-302, 55-20.2, 63.2-1215 (other Code uses of "husband and wife")

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-074_Frey.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

December 18, 2014

900 East Main Street
Richmond, Virginia 23219
804-786-2071

The Honorable John T. Frey
Clerk of Court
Fairfax County Circuit Court
4110 Chain Bridge Road
Fairfax, Virginia 22030

Dear Mr. Frey:

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

Issue Presented

An injunction issued in the case of Bostic v. Rainey[1] prohibits enforcement of Virginia's marriage laws to the extent they deny same-sex couples the same rights afforded other couples. You ask whether the injunction alters the term "husband and wife" as used in § 58.1-810.3 of the Code of Virginia for purposes of the recordation tax exemption.

Response

It is my opinion that the decision in Bostic v. Rainey requires clerks of court to interpret the term "husband and wife" as used in § 58.1-810.3 to include spouses of the same sex. Accordingly, a deed to which the only parties are married individuals, regardless of whether such individuals are of the same or opposite sex, is exempt from the Virginia Recordation Tax pursuant to § 58.1-810.3.

Applicable Law and Discussion

I. Ruling in Bostic v. Rainey

On February 13, 2014,[2] the United States District Court for the Eastern District of Virginia, Norfolk Division ("the District Court") ruled that Virginia's laws defining marriage as between one man and one woman and prohibiting recognition of a union between two people of the same sex were unconstitutional.[3] Specifically, the Court held that "[t]hese laws deny [same-sex couples] their rights to due process and equal protection guaranteed under the Fourteenth Amendment of the United States Constitution."[4] In a Judgment entered on February 24, 2014, the District Court enjoined the officers, agents, and employees of the Commonwealth of Virginia from enforcing Article I, § 15-A, of the Constitution of Virginia; Virginia Code § 20-45.2; Virginia Code § 20-45.3, and any other Virginia law if and to the extent that it denies to same sex couples the rights and privileges of marriage that are afforded to opposite sex couples.[5]

This judgment was stayed pending final disposition of any appeal by the United States Court of Appeals for the Fourth Circuit.[6] The Fourth Circuit affirmed the District Court's judgment on July 28, 2014, specifically upholding the "decision to enjoin enforcement of the Virginia Marriage Laws."[7] On August 20, 2014, the United States Supreme Court stayed the Fourth Circuit's mandate pending the timely filing and disposition of a petition for writ of certiorari. Three petitions were filed, and on October 6, 2014, the Supreme Court denied them all.[8] The Fourth Circuit's mandate issued at 1:00 p.m. on October 6, 2014, at which time the District Court's judgment took effect.

The District Court's opinion expressly used, and the Fourth Circuit Court of Appeals adopted, the term "Virginia's Marriage Laws" to refer to "Article I, Section 15-A of the Virginia Constitution, Va. Code §§ 20-45.2, 20-45.3, and any other law relating to marriage within the Commonwealth of Virginia."[9] This determination that these laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, therefore, reaches beyond the right of individuals to marry in this Commonwealth. It extends to any law that, facially or by application, recognizes the institution of marriage or confers a benefit or special recognition based on marital status. Such laws must apply equally to all such unions, regardless of the sex of its members.

II. Application to the Virginia Recordation Tax

The Virginia Recordation Tax Act requires every circuit court clerk in Virginia to collect certain recordation taxes.[10] These taxes are based on the privilege of having access to the benefits of state recording and registration laws,[11] and there are numerous exemptions. Pertinent to your inquiry, the General Assembly has provided that "[w]hen the tax has been paid at the time of the recordation of the original deed, no additional recordation tax shall be required for admitting to record . . . [a] deed to which a husband and wife are the only parties."[12]

You ask whether the term "husband and wife" should be interpreted to encompass only a married man and woman, or whether the exemption extends to a married couple of the same sex. In light of the District Court's and the Fourth Circuit's rulings, the term not only should, but must, be interpreted to include couples of the same sex who are legally married.[13] To interpret it otherwise would be to grant recognition and a special privilege to the union of a man and a woman that is not similarly granted to a union between a man and a man or a woman and a woman. As the Bostic opinions make clear, the United States Constitution prohibits such an interpretation. I therefore conclude that a deed to which married individuals are the only parties, irrespective of whether the married individuals are of the same or opposite sex, is exempt from the Virginia Recordation Tax pursuant to § 58.1-810.3.[14]

Conclusion

Accordingly, it is my opinion that the decision in Bostic v. Rainey requires clerks of court to interpret the term "husband and wife" as used in § 58.1-810.3 to include spouses of the same sex, and therefore, a deed to which the only parties are married individuals, regardless of whether the individuals are of the same or opposite sex, is exempt from the Virginia Recordation Tax pursuant to § 58.1-810.3.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014), aff'd sub nom Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), cert. denied, 190 L. Ed. 2d 140 (2014).

[2] As amended on February 14, 2014.

[3] Rainey, 970 F. Supp. 2d at 483.

[4] Id. at 484.

[5] Judgment at 1-2, Bostic v. Rainey, No. 2:13-cv-00395-AWA-LRL, (E.D. Va. 2014), ECF No. 139.

[6] Id. at 2.

[7] Schaefer, 760 F.3d at 384.

[8] Rainey v. Bostic, 190 L. Ed. 2d 140 (2014); Schaefer v. Bostic, 190 L. Ed. 2d 140 (2014); McQuigg v. Bostic, 190 L. Ed. 2d 140 (2014).

[9] Rainey, 970 F. Supp. 2d at 461, n.2 (emphasis added).

[10] See VA. CODE ANN. §§ 58.1-800 through 58.1-817 (2009 & Supp. 2014).

[11] See Va. Tax Comm'r Priv. Ltr. Rul., Pub. Doc. 92-234 (Nov. 9, 1992), available at http://www.policylibrary.tax.virginia.gov/OTP/policy.nsf.

[12] Section 58.1-810.3.

[13] "Where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." United States v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909). See also Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) ("where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems ..."); Dean v. Paolicelli, 194 Va. 219, 227, 72 S.E.2d 506, 511 (1952) ("No act of the legislature should be ... so construed as to bring it into conflict with constitutional provisions unless such a construction is unavoidable.").

[14] I note that, while your request addresses only one specific occurrence of "husband and wife", the term, along with "man and wife," "wife," and "husband" appears in the Code of Virginia no fewer than 61 times, applying to subjects ranging from insurance contracts, to joint ownership of property, and to adoption. See, respectively, VA. CODE ANN. §§ 38.2-302 (2014), 55-20.2 (2012), 63.2-1215 (2012). The guarantees of equal protection and due process apply equally to these provisions, and they must be applied equally to all legal marriages. As Bostic v. Rainey makes clear, the Constitution of the United States requires no less.