The debate over same-sex marriage was muted—and made moot—in 2015, with the Supreme Court’s landmark ruling in Obergefell v. Hodges. But, even with the ratification of same-sex unions written into national law, discrimination against them still remain ingrained in the GOP platform—and in 30 state constitutions.
Virginia’s state constitution holds one of the strictest same-sex marriage bans in the county. It is sweeping in scope, and has been compared to a Jim Crow law in a Washington Post Op-ed. In 2014, a federal district court found the law unconstitutional; a federal appeals court agreed, and later that year, the Supreme Court declined to review the decision, allowing same-sex couples in Virginia to marry. The ban itself has been unenforceable for seven years. Yet it remains in the state’s constitution, a reminder of when 57 percent of Virginians voted it into law in 2006.
In the past decade, the tide of public opinion has changed on same-sex issues—both on a national level and within the state of Virginia itself. About 70 percent of Americans, and half of Republicans, support same-sex marriage, a 2020 Public Religion Research Institute poll revealed. A 2017 poll by the same group showed that 60 percent of Virginians supported it, too. After Democrats took control of the Virginia legislature in 2019, lawmakers prioritized legalizing same-sex marriage in the state for once and for all.
Two bills were introduced in February of this year—one in the state Senate (SJ 270) and one in the state House (HJ 582)—to begin the process of repealing the invalidated ban on same-sex marriage in Virginia’s constitution. Both bills passed, but still faced significant opposition. Twelve Republicans voted against it in the Senate, and 33 Republicans voted “nay” in the House. Stripping this unconstitutional law from the Virginian constitution would not change anything straightaway, but it would ensure that same-sex couples’ marriages would remain intact should the Supreme Court overturn Obergefell. Yet a majority of Republican lawmakers in Virginia still voted against it. Perhaps these lawmakers want to nullify existing same-sex marriages and prohibit same-sex couples from marrying in the future; that, after all, is what the ban would require in the absence of a federal court order rendering it inoperable. It’s impossible to know for sure what these Republicans are thinking, though, as most of Virginia’s GOP lawmakers shroud their views on same-sex marriage in silence.
I tried to reach all 45 Virginia GOP lawmakers who voted against either the House or Senate bills in an attempt to understand their beliefs on the issue and their reasoning behind voting to keep an obsolete law. I contacted—and followed up with—all lawmakers via phone and email. A handful of times, an aide answered the call instead of letting it roll into voicemail, and promised to relay my inquiries to the delegate, but I never heard back. I only received four responses total. One was from Delegate Cole, who was very willing to speak, but halfway into the conversation I realized I was talking to Joshua Cole, the Democrat who voted yes, not Mark Cole, the Republican who voted no. Delegate Wiley responded saying he didn’t want to talk—but, compared to the other radio silence I received, I count that as a response nonetheless.
Delegate Nick Freitas and Delegate Buddy Fowler were the only two who actually answered my questions. But they both provided roundabout responses. “We have a situation where politicians are fighting over how the government should define marriage. Then there is me, who simply wants the government to get out of the business of marriage altogether. This resolution doesn’t do that, so I voted no,” Freitas wrote via email. He carefully avoided saying anything about his beliefs of same-sex marriage itself, and made it more an issue of government. Fowler defended his position in a similar fashion, and even directly asserted that he wasn’t anti-LGBTQ. “I’m all for civil unions. I’m all for people loving who they want to love,” he said during a phone call. But, he said, he had a problem with labeling a same-sex union under the institution of marriage. “I believe that institution was created by God. And His intent is to recognize the union of a man and a woman. That’s a marriage,” Fowler said.
The slew of no votes won’t keep the ban on same-sex marriage in Virginia. But the silence of the Republicans, who vote nay but cower when asked to explain their votes, is a reminder that the GOP retains a commitment to outlawing same-sex marriages, even if they don’t like to talk about it in public. It is easy to guess why Republican lawmakers might not want to discuss their position: At this point, enforcing Virginia’s ban would involve dissolving thousands of same-sex marriages and likely denying same-sex couples parenting rights over their own children. The consequences would be ghastly and inhumane, breaking up loving families and leaving children legally parentless. No wonder Republicans were not eager to answer my inquiries.
To repeal Virginia’s ban, the legislature must vote to kill it once again next year, then place it on the ballot in 2022 for a public vote. If the repeal passes, Virginia will be one of only two states to have enacted this reform. (Nevada passed a similar measure in November.) But that doesn’t change the fact that it remains a state with 45 lawmakers who presumably want to nullify same-sex marriages but don’t even know—or won’t even say—why.