Are Virginia's statutes and constitutional ban on same-sex marriage still on the books after Obergefell, and can the Code Commission recommend removing them as obsolete?

Plain-English summary

Senator John Edwards, in his role as Chairman of the Virginia Code Commission, asked two related questions. First, are Code §§ 20-45.2 and 20-45.3 (the state statutes prohibiting same-sex marriage and civil unions, and refusing recognition of out-of-state same-sex marriages) "obsolete" within the meaning of Code § 30-151, which gives the Commission an ongoing duty to identify obsolete statutes for repeal? Second, does Article I, § 15-A of the Virginia Constitution (the matching prohibition) violate the U.S. Constitution in light of Obergefell v. Hodges?

The Attorney General answered yes to both. Federal courts had already struck down both the Virginia statutes and Article I, § 15-A as unconstitutional. The Fourth Circuit's 2014 decision in Bostic v. Schaefer permanently enjoined enforcement, and the U.S. Supreme Court declined to disturb the ruling. The U.S. Supreme Court then confirmed nationally in Obergefell v. Hodges (June 26, 2015) that the Constitution does not allow states to bar same-sex couples from marriage. The AG concluded that Virginia's statutes fit Black's Law Dictionary's definition of "obsolete," and the General Assembly itself had used "obsolete" in 2006 to describe an earlier unconstitutional provision of the Virginia Constitution. Section 30-151 also gives the Code Commission substantial discretion, and the AG noted a practical concern: leaving the unconstitutional bans in the published Code risks misleading citizens into thinking the laws are still in force.

Currency note

This opinion was issued in 2017. 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.

For background only: The federal landscape on same-sex marriage rests on Obergefell v. Hodges (2015). Federal statutory protections were added by the Respect for Marriage Act in late 2022. State-by-state status of statutory cleanup of pre-Obergefell marriage bans varies. Anyone working on a present-day Virginia marriage question should verify the current text of the Code and Constitution directly.

Background and statutory framework

Three layers of Virginia law had banned same-sex marriage. Code § 20-45.2 prohibited marriages between persons of the same sex and declared any such marriages from other jurisdictions void in Virginia. Code § 20-45.3 banned civil unions and similar arrangements. Article I, § 15-A of the Virginia Constitution (the so-called Marshall/Newman Amendment, ratified in 2006) reinforced the statutory bans by declaring at the constitutional level 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."

Two layers of federal litigation knocked all of this down. In 2014, the U.S. District Court for the Eastern District of Virginia in Bostic v. Rainey found the state's marriage laws violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Fourth Circuit affirmed in Bostic v. Schaefer, the Supreme Court declined to review on October 6, 2014, and the injunction took effect. Same-sex marriages became legal in Virginia that day. Other circuits reached similar conclusions in Latta, Baskin, and Kitchen. When the Sixth Circuit broke the pattern, the Supreme Court took up the issue and decided Obergefell v. Hodges on June 26, 2015, settling the question nationwide.

Code § 30-151 gives the Virginia Code Commission an ongoing duty to identify obsolete statutes and recommend their repeal to the General Assembly. The term "obsolete" is not defined in the Code. The AG worked from Black's Law Dictionary ("no longer in general use; out-of-date") and reasoned that an unconstitutional statute lacks legal force, so it fits within that definition. The Supreme Court of Virginia has said that when an act is unconstitutional, "it is not a law; it is, in legal contemplation, as inoperative as though it had never been passed." Earlier Attorneys General had similarly described statutes that lost their legal effect as "obsolete." The General Assembly itself used the same word in 2006 when it asked voters to repeal the unconstitutional ban on church incorporation that had been struck down in Falwell v. Miller.

Common questions

Were the Virginia statutes banning same-sex marriage still on the books in 2017?
Yes, formally. The statutes were unenforceable because of Bostic and Obergefell, but they remained in the published Code of Virginia. The AG's opinion was specifically about whether the Code Commission could recommend their repeal as obsolete, not about whether they were enforceable.

Does this opinion say the statutes are still being enforced?
No. The opinion repeatedly confirms that the laws were declared unconstitutional and have been unenforceable since October 6, 2014, when the Bostic injunction took effect.

What is the practical effect of being labeled "obsolete"?
The Code Commission can recommend the statutes' repeal to the General Assembly. The General Assembly is not bound by the recommendation, but the recommendation starts the formal cleanup process. The AG flagged a separate concern that leaving unconstitutional statutes in the Code risks misleading citizens into believing they are still valid law.

Does Obergefell apply to state constitutional provisions, not just state statutes?
Yes. The Fourth Circuit's Bostic decision specifically struck down Article I, § 15-A along with the statutes. Obergefell reinforced that no state law (statute or constitution) can bar same-sex couples from marriage.

Did the AG say the Virginia constitutional provision could be enforced or relied on?
No. The AG concluded the provision violates the U.S. Constitution under the holdings in both Bostic and Obergefell and has had no force since the Bostic injunction took effect.

Has Virginia repealed these provisions since 2017?
That is a question about post-opinion legislative and constitutional action. Readers checking the present state of the Virginia Code or Constitution should consult the current text directly, since the legal landscape and political process on this question has continued to develop.

Citations

• Obergefell v. Hodges, 135 S. Ct. 2584 (2015)
• Bostic v. Rainey, 970 F. Supp. 2d 456 (E.D. Va. 2014)
• Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014)
• City of Richmond v. Eubank, 179 Va. 70 (1942)
• Norton v. Shelby County, 118 U.S. 425 (1886)
• Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002)
• Va. Code § 20-45.2; § 20-45.3; § 30-151
• Va. Const. art. I, § 15-A
• 2006 Va. Acts ch. 68 (church incorporation repeal ballot question)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/17-021-Edwards---obsolete-Va.-laws---Obergefell---ISSUED.pdf

Original opinion text

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

August 11, 2017

The Honorable John S. Edwards
Member, Senate of Virginia
Post Office Box 1179
Roanoke, Virginia 24006-1179

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

Issues Presented
You have asked in your capacity as Chairman of the Virginia Code Commission (the
"Commission") whether §§ 20-45.2 and 20-45.3 of the Code of Virginia "are obsolete within the compass
of § 30-151." You also ask "whether Section 15-A of Article I of the Constitution of Virginia runs afoul
of the United States Constitution in light of ... Obergefell v. Hodges, 135 S. Ct. 2584 (2015)."

Background
Under § 30-151 of the Code of Virginia, the Commission has an "[o]ngoing responsibility" to
identify "obsolete statutes and Acts of Assembly" and to recommend appropriate legislative changes to
the General Assembly:[1]

The Commission shall review the Code of Virginia and uncodified provisions in the
Virginia Acts of Assembly to identify obsolete chapters, articles, sections, or enactments.
The Commission shall from time to time, but not less than every four years, make such
recommendation to the General Assembly through legislation amending or repealing such
statutes or acts as the Commission deems appropriate.[2]

I understand from your request that among the statutes that the Commission is considering
identifying as "obsolete" are §§ 20-45.2 and 20-45.3 of the Code of Virginia, which limit marriage in
Virginia to one man and one woman. Section 20-45.2 provides that "[a] marriage between persons of the
same sex is prohibited. Any marriage entered into by persons of the same sex in another state or
jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage
shall be void and unenforceable."[3] Section 20-45.3 similarly prohibits any "civil union, partnership
contract or other arrangement between persons of the same sex purporting to bestow the privileges or
obligations of marriage."[4] Those statutes have a corresponding provision in the Constitution of Virginia.
Article I, § 15-A provides, in part, 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."[5]

Three years ago, those provisions were struck down as unconstitutional by a federal trial court
sitting in Virginia and the federal appeals court with jurisdiction over Virginia. On February 13, 2014, in
Bostic v. Rainey, the U.S. District Court for the Eastern District of Virginia

[found] Va. Const. Art. I, § 15-A, Va. Code §§ 20-45.2, 20-45.3, and any other Virginia
law that bars same-sex marriage or prohibits Virginia's recognition of lawful same-sex
marriages from other jurisdictions unconstitutional. These laws deny Plaintiffs their
rights to due process and equal protection guaranteed under the Fourteenth Amendment
of the United States Constitution.[6]

Accordingly, the court permanently enjoined enforcement of the laws.[7] On July 28, 2014, the U.S. Court
of Appeals for the Fourth Circuit agreed, likewise concluding that the laws "violate the Due Process and
Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples
from marrying and prohibit Virginia from recognizing same-sex couples' lawful out-of-state marriages."[8]
The Fourth Circuit "therefore affirm[ed] the district court's grant of the Plaintiffs' motion for summary
judgment and its decision to enjoin enforcement of the Virginia Marriage Laws."[9] On October 6, 2014,
the U.S. Supreme Court declined to review the case, leaving in place the Fourth Circuit's judgment that
Virginia's various prohibitions on same-sex marriage are unconstitutional.[10] The permanent injunction
took effect that day.

Other States' similar prohibitions were also struck down by other federal courts of appeals, and
the Supreme Court again declined to disturb the results.[11] Not until the U.S. Court of Appeals for the
Sixth Circuit upheld same-sex-marriage prohibitions in Michigan, Kentucky, Ohio, and Tennessee did the
U.S. Supreme Court take up the issue in Obergefell v. Hodges, ultimately holding that laws limiting
marriage to one man and one woman are unconstitutional:

[T]he right to marry is a fundamental right inherent in the liberty of the person, and under
the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of
the same-sex may not be deprived of that right and that liberty. The Court now holds that
same-sex couples may exercise the fundamental right to marry.[12]

Since the Supreme Court issued its decision on June 26, 2015, prohibitions on same-sex marriage have
been unconstitutional and unenforceable nationwide.

Applicable Law and Discussion
I respond to your two questions in corresponding sections below.

A. Whether Code §§ 20-45.2 and 20-45.3 are obsolete within the meaning of Code § 30-151.

The essence of your first question is whether §§ 20-45.2 and 20-45.3 are obsolete, given that they
have been held unconstitutional by federal courts. The term "obsolete" is not defined in the Code of
Virginia, and I am not aware of case law from Virginia courts, opinions of the Attorney General, or other
authorities addressing the term's meaning in § 30-151 specifically. Nevertheless, for the reasons set forth
below, it is my opinion that those statutes "are obsolete within the compass of § 30-151."

First, an unconstitutional statute fits comfortably within the plain and natural meaning of
"obsolete" because it lacks any legal force.[13] Black's Law Dictionary defines "obsolete" to mean "[n]o
longer in general use; out-of-date."[14] Consistent with that definition, the Supreme Court of Virginia has
explained that when an act is "unconstitutional, 'it is not a law ... ; it is, in legal contemplation, as
inoperative as though it had never been passed.'"[15] And the Court has held, and previous Attorneys
General have opined, that judicial precedents and statutes are "obsolete" when they no longer have any
legal effect.[16] In my opinion, a statute is no less obsolete when it has been rendered inoperative by a final
judicial decision, rather than by a subsequent legislative enactment. Because §§ 20-45.2 and 20-45.3
have been declared unconstitutional and are no longer enforceable, they fall squarely within the plain
meaning of "obsolete."

Second, the General Assembly has used the term "obsolete" before to describe a provision of the
Virginia Constitution that was previously declared unconstitutional. In 2002, in Falwell v. Miller,[17] the
U.S. District Court for the Western District of Virginia concluded that Article IV, § 14(20) of the Virginia
Constitution, prohibiting the incorporation of churches and religious denominations, violated the First
Amendment to the United States Constitution.[18] Several years later, the General Assembly acted to
eliminate the provision, adopting a joint resolution to place a repeal measure on the ballot in the
November 2006 general election.[19] The adopted ballot language demonstrates the General Assembly's
assumption that provisions ruled unconstitutional have been rendered "obsolete":

The ballot shall contain the following question: "Question: Shall Section 14 of Article IV
of the Constitution of Virginia be amended by deleting the provision that prohibits the
incorporation of churches, a provision that was ruled to be unconstitutional and therefore
now is obsolete?"[20]

That same understanding was shared by the Commission on Constitutional Revision (the "CCR"),
which fifty years ago was tasked with suggesting amendments to the Constitution of Virginia that the
General Assembly then debated whether to propose to the people of Virginia.[21] Among other
recommendations in its final report, the CCR "propose[d] the deletion of a number of obsolete sections of
the present Constitution."[22] In the course of discussing those "obsolete sections," the CCR made clear
that it had included provisions held unconstitutional by federal courts:[23]

Some of these sections are obsolete because the conditions which gave rise to them no
longer obtain. This is the case, for example, with those sections concerned with dueling.
Other sections are obsolete because of federal law, such as federal court decisions
regarding the poll tax or those regarding segregation in public schools.[24]

Thus, both the General Assembly and the CCR have understood that statutes are obsolete if, like
Virginia's prohibitions on same-sex marriage, they have been found unconstitutional by a federal court.

For those reasons, I answer your question in the affirmative and conclude that §§ 20-45.2 and
20-45.3 "are obsolete within the compass of § 30-151."

Finally, although it does not affect my opinion, I note that the General Assembly has granted the
Commission substantial discretion in performing its duties. Section 30-151 empowers the Commission to
"identify obsolete chapters, articles, sections, or enactments" and make "recommendation[s] to the
General Assembly" regarding "such [obsolete] statutes or acts as the Commission deems appropriate."[25]
That discretion is permissible because the General Assembly is not bound to accept the Commission's
recommendations; the General Assembly exercises its independent judgment whether to act on those
recommendations and whether to adopt or reject them in whole or in part. Given the discretion
committed to the Commission, and in light of the reasons discussed above, the Commission certainly
would be within its authority to conclude that §§ 20-45.2 and 20-45.3 are obsolete within the meaning of
§ 30-151.

How the Commission should exercise its discretion, however, is not a proper subject for me to
opine on, and instead is a matter for the Commission to decide. But I do note one practical consideration
that the Commission may wish to take into account: if these unconstitutional provisions remain in the
Code of Virginia, there is a possibility that citizens of the Commonwealth could be misled into believing
that they remain valid law, which, of course, they do not.

B. Whether Article I, § 15-A of the Constitution of Virginia violates the U.S. Constitution.

Both Bostic and Obergefell confirm that Article I, § 15-A of the Constitution of Virginia violates
the U.S. Constitution. Article I, § 15-A provides, in part, "[t]hat only a union between one man and one
woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions."[26]
As stated above, in Bostic, the Fourth Circuit held unconstitutional Virginia's marriage laws, including
Article I, § 15-A, "to the extent that they prevent same-sex couples from marrying and prohibit Virginia
from recognizing same-sex couples' lawful out-of-state marriages," and the Supreme Court let that
decision stand.[27] Along with its statutory prohibitions on same-sex marriage, Virginia's constitutional
prohibition has not been in force since October 6, 2014.

What the Fourth Circuit held in Bostic with respect to Virginia's laws in particular became settled
law nationwide a year later, when the U.S. Supreme Court confirmed in Obergefell that the Constitution
"does not permit the State to bar same-sex couples from marriage on the same terms as accorded to
couples of the opposite sex."[28] Thus, Article I, § 15-A is invalid under Obergefell "to the extent [it]
exclude[s] same-sex couples from civil marriage on the same terms and conditions as opposite-sex
couples."[29]

Conclusion

It is my opinion that §§ 20-45.2 and 20-45.3 of the Code of Virginia are obsolete within the
meaning of § 30-151 because they have been held unconstitutional and therefore lack any legal force. It
is also my opinion that the similar prohibition on same-sex marriage in Article I, § 15-A of the
Constitution of Virginia violates the U.S. Constitution, under the holdings of both the Fourth Circuit in
Bostic and the Supreme Court in Obergefell.
With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] VA. CODE ANN. § 30-151 (2015).

[2] Id.

[3] VA. CODE ANN. § 20-45.2 (2016).

[4] VA. CODE ANN. § 20-45.3 (2016); see also id. (providing that "[a]ny such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable").

[5] VA. CONST. art. I, § 15-A.

[6] Bostic v. Rainey, 970 F. Supp. 2d 456, 484 (E.D. Va.), aff'd sub nom. Bostic v. Schaefer, 760 F.3d 352 (4th Cir.), cert. denied, 135 S. Ct. 286, 308, 314 (2014).

[7] Id.

[8] Bostic v. Schaefer, 760 F.3d 352, 384 (4th Cir. 2014).

[9] Id. It defined "Virginia's Marriage Laws" to include "Virginia Code sections 20-45.2 and 20-45.3, the Marshall/Newman Amendment [Va. Const. art. I, § 15-A], and any other Virginia law that bars same-sex marriage or prohibits the State's recognition of otherwise-lawful same-sex marriages from other jurisdictions." Id. at 368 (internal quotation marks omitted).

[10] 135 S. Ct. 286, 308, 314 (2014).

[11] See, e.g., Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), cert. denied, 135 S. Ct. 2931 (2015); Baskin v. Bogan, 766 F.3d 648 (7th Cir.), cert. denied, 135 S. Ct. 316 (2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.), cert. denied, 135 S. Ct. 265 (2014).

[12] 135 S. Ct. 2584, 2604-05 (2015).

[13] See, e.g., McKeon v. Commonwealth, 211 Va. 24, 27 (1970) (When a word "is not defined in the statute, [it] must ... be given its ordinary meaning in determining the legislative intent in the use of the word ....").

[14] BLACK'S LAW DICTIONARY 1246 (Bryan A. Garner et al. eds., 10th ed. 2014).

[15] City of Richmond v. Eubank, 179 Va. 70, 84 (1942) (quoting Campbell v. Bryant, 104 Va. 509, 516 (1905) (citing Norton v. Shelby Cty., 118 U.S. 425, 442 (1886))).

[16] See, e.g., Swisher v. Swisher, 223 Va. 499, 504 n.* (1982) (noting that a "precedent became obsolete when [a new statutory provision] was added to the Code"); 1941-1942 Op. Va. Att'y Gen. 36, 36 (opining that subsequent legislative enactment rendered a previous enactment obsolete); 1937-1938 Op. Va. Att'y Gen. 173, 173 (subsequent legislation "rendered obsolete" and "inoperative" another statutory provision).

[17] 203 F. Supp. 2d 624 (W.D. Va. 2002).

[18] Id. at 632-33. The Court noted that the defendant, the Chairman of the State Corporation Commission, represented by the Attorney General, "has chosen not to defend the constitutional merits of Article IV, § 14(20)" and "does not contest the merits of Plaintiffs' legal argument that § 14(20) violates the U.S. Constitution." Id. at 627, 632.

[19] 2006 Va. Acts ch. 68.

[20] Id. (emphasis added). The ballot question passed with 65% of voters approving. See Va. Dep't of Elections, Elections Database, 2006 - Statewide - Question 2, http://historical.elections.virginia.gov/ballot_questions/view/2366/ (last visited Aug. 10, 2017).

[21] See REPORT OF THE COMMISSION ON CONSTITUTIONAL REVISION (The Michie Co. 1969).

[22] Id. at 13.

[23] Id.

[24] Id. The poll-tax and segregation cases referred to are Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) (provisions in Constitution of Virginia making payment of poll taxes a qualification for eligibility to vote violate the Equal Protection Clause), and Davis v. County School Board, 347 U.S. 483 (1954) (Virginia constitutional provisions and laws requiring segregation of black and white students in public schools violate the Fourteenth Amendment). See also REPORT OF THE COMMISSION ON CONSTITUTIONAL REVISION at 16 ("Obsolete or unnecessary parts of the present Franchise article, for example, those relating to the poll tax, are deleted."); id. at 233 ("The restrictions on the size of county magisterial districts are obsolete after the recent one-man, one-vote decisions of the United States Supreme Court.").

[25] VA. CODE ANN. § 30-151 (emphasis added).

[26] VA. CONST. art. I, § 15-A.

[27] Bostic, 760 F.3d at 384, cert. denied, 135 S. Ct. 286, 308, 314.

[28] Obergefell, 135 S. Ct. at 2607.

[29] Id. at 2605.