Virginia Voters to Decide Marriage Amendment in November

Editor’s Note: Virginia voters will consider three proposed amendments to the Virginia Constitution on the Nov. 3 ballot. This is the second in a series examining each proposed amendment. We will provide information on what each proposal would change, along with arguments from supporters and opponents, to help voters better understand the questions before casting their ballots.

Virginia voters will decide in November whether to remove the state Constitution’s existing prohibition on same-sex marriage and replace it with language establishing a constitutional right for two adults to marry regardless of sex, gender, or race.

Proposed Constitutional Amendment Question 2 asks:

“Should the Constitution of Virginia be amended to (i) remove the ban on same-sex marriage; (ii) affirm that two adults may marry regardless of sex, gender, or race; and (iii) require all legally valid marriages to be treated equally under the law?”

The proposal would change language that has remained in Virginia’s Constitution since voters approved it in 2006. Although that prohibition cannot currently be enforced because of federal constitutional law, voters are being asked whether it should be removed and replaced with an affirmative protection in Virginia’s own Bill of Rights.

What Virginia’s Constitution Says Now

Article I, Section 15-A of the Virginia Constitution currently states that only a union between one man and one woman may be a marriage valid in or recognized by Virginia and its political subdivisions.

It also prohibits the Commonwealth from creating or recognizing another legal status intended to approximate marriage or carry the rights, benefits and obligations of marriage.

Virginia voters approved that provision in 2006, and it became effective Jan. 1, 2007.

The provision, however, has not been enforceable against same-sex couples since the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges. The Supreme Court held that the Fourteenth Amendment requires states to license marriages between two people of the same sex and recognize same-sex marriages lawfully performed elsewhere.

Virginia statutory law also currently prohibits officials authorized to issue marriage licenses from denying a license to two people contemplating a lawful marriage based on sex, gender, or race. It requires those marriages to be recognized in Virginia.

As a result, same-sex marriage is already legal in Virginia. Question 2 is not asking voters whether to legalize it for the first time.

What Question 2 Would Change

The amendment would remove the one-man, one-woman definition from Virginia’s Constitution.

In its place, the Constitution would state that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness.”

It would prohibit Virginia and its political subdivisions from denying a marriage license to two adults seeking a lawful marriage based on their sex, gender, or race.

It would also require the Commonwealth and its political subdivisions to recognize lawful marriages between two adults and to treat those marriages equally under the law, regardless of sex, gender, or race.

The proposal therefore does more than delete the 2006 same-sex marriage prohibition. It replaces that language with an affirmative state constitutional protection.

Why Does It Matter if Same-Sex Marriage Is Already Legal?

That is one of the central questions surrounding Question 2.

Under current federal constitutional law, Virginia cannot enforce its constitutional prohibition against same-sex marriage because of Obergefell.

Congress also enacted the federal Respect for Marriage Act in 2022, which provides additional federal protections. Among other provisions, the law requires recognition of qualifying marriages validly performed in another state.

Question 2 would establish another layer of protection by directly incorporating the right into Virginia’s Constitution.

The distinction is important.

If federal constitutional protections were changed in the future, the proposed Virginia amendment would independently prohibit the Commonwealth from denying a lawful marriage license to two adults because of sex, gender, or race.

What Supporters Say

Supporters argue that Virginia should remove a constitutional prohibition that has been unenforceable for more than a decade and replace it with language reflecting how marriages are currently treated under the law.

They contend that same-sex couples should not have to depend exclusively on federal court decisions or federal legislation for protection of their marriages.

Supporters also argue that a constitutional amendment would provide greater stability. While Virginia already has a statute prohibiting marriage-license discrimination based on sex, gender, or race, an ordinary statute can be changed by a future General Assembly. A constitutional provision would carry greater legal protection.

They further emphasize that Question 2 includes race as well as sex and gender.

Interracial marriage is already protected under federal constitutional law, but the amendment would expressly place protection against marriage discrimination based on race into Virginia’s Constitution as well.

Supporters describe the proposal as a matter of equal treatment: lawful marriages between two adults should receive the same recognition from state and local governments regardless of the spouses’ sex, gender, or race.

What Opponents Say

Opponents argue that the amendment goes beyond simply removing obsolete language from Virginia’s Constitution.

They emphasize that Question 2 would replace the traditional one-man, one-woman definition with an affirmative constitutional right and argue that the traditional definition of marriage should remain in Virginia’s founding document.

Some opponents also raise concerns about religious liberty, arguing that constitutionally requiring equal treatment of marriages could eventually result in conflicts with individuals or organizations holding religious objections to same-sex marriage.

Current Virginia law, however, expressly states that religious organizations and clergy acting in their religious capacity have the right to refuse to perform any marriage. Question 2 does not expressly repeal that provision.

The proposed amendment itself also directs its marriage-license and equal-treatment requirements to “this Commonwealth and its political subdivisions.” It does not require churches or clergy to perform marriages contrary to their beliefs.

That does not mean every potential future dispute involving marriage equality and religious liberty is resolved by Question 2. How constitutional protections interact in a particular dispute can depend on the law and circumstances involved.

Opponents have also focused on the amendment’s use of “gender” in addition to “sex,” arguing that constitutional recognition of gender as a separate category could have consequences in other areas, including women’s sports and private spaces.

The amendment does use both words. However, Question 2 itself concerns marriage licenses and government recognition and treatment of lawful marriages. It does not address athletics, bathrooms, locker rooms, or similar issues.

Claims about how the amendment might affect those areas therefore represent predictions about possible future legal interpretations rather than provisions expressly contained in Question 2.

Some opponents also raise broader concerns about same-sex marriage, family structure, IVF and surrogacy, arguing that redefining marriage can affect whether children are raised by both a mother and a father.

Those are broader social and policy arguments surrounding same-sex marriage. Question 2 itself does not establish IVF or surrogacy rights or directly change those laws.

What the Amendment Does Not Say

Some of the political debate surrounding Question 2 concerns subjects that do not appear in the proposed constitutional language.

The amendment does not require churches or clergy to perform same-sex marriages.

It does not eliminate Virginia’s separate constitutional protections for religious exercise.

It does not establish new criminal penalties against people who personally object to same-sex marriage.

It does not address women’s sports, bathrooms, or locker rooms.

It does not establish constitutional rights to IVF or surrogacy.

And it does not authorize marriages involving more than two people. The amendment repeatedly refers to marriage between “two adult persons” and to a “lawful marriage.”

Those distinctions do not prevent supporters and opponents from debating what they believe the amendment could mean for Virginia’s future. But there is a difference between what Question 2 expressly provides and what either side predicts could result from its adoption.

What About Religious Freedom?

Because religious liberty has become part of the campaign debate, current Virginia law is worth noting separately.

Virginia law already provides that religious organizations and members of the clergy acting in their religious capacity have the right to refuse to perform any marriage.

Question 2 does not contain language repealing that protection.

The amendment instead places obligations on Virginia and its political subdivisions regarding marriage licenses and recognition of lawful marriages.

Accordingly, the claim that Question 2 would “eliminate all religious freedom protection” goes beyond what the proposed constitutional language itself says.

At the same time, opponents may argue that making equal treatment of marriages a constitutional requirement could produce future legal disputes over how that right interacts with other constitutional or statutory protections. The amendment does not attempt to spell out the outcome of every such potential dispute.

A Constitutional Question, Not a Vote to Legalize Same-Sex Marriage

As with Question 1, the distinction between existing law and the proposed constitutional change is important.

A YES vote is not required for same-sex couples to marry in Virginia today.

Same-sex marriage is already legal because of federal constitutional law, and Virginia statutory law currently requires qualifying marriages to be licensed and recognized without discrimination based on sex, gender, or race.

Instead, voters are deciding whether those principles should receive explicit protection in Virginia’s Constitution.

That would make the protection more difficult for future state lawmakers to change and would provide a state constitutional basis for marriage equality independent of the continued existence of Virginia’s 2006 prohibition.

What a Yes or No Vote Means

A YES vote supports removing the current constitutional language defining marriage as only between one man and one woman. It would replace that language with a constitutional prohibition against Virginia denying a lawful marriage license to two adults on the basis of sex, gender, or race, and require Virginia to recognize qualifying marriages equally.

A NO vote rejects the proposed amendment and leaves Virginia’s existing Section 15-A unchanged.

A NO vote would not, by itself, make same-sex marriage illegal in Virginia. The existing state constitutional prohibition remains unenforceable under current federal constitutional law, and Virginia also currently has statutory protections for marriage regardless of sex, gender, or race.

For voters, the central question is therefore not whether same-sex marriage should become legal in Virginia.

It is whether Virginia should remove the existing but currently unenforceable prohibition from its Constitution and replace it with an affirmative state constitutional guarantee that lawful marriages between two adults will be licensed, recognized and treated equally regardless of sex, gender or race.