After the Supreme Court’s decision to repeal the Defense of Marriage Act (DOMA), laws prohibiting marriage between same-sex couples in states like Virginia did not automatically change, but federally, same-sex married couples will be recognized as married, regardless of their home state.
According to FedSmith.com, the federal government's Office of Personnel Management (OPM) decided to extend benefits to federal employees and annuitants who have a legally-married spouse of the same sex regardless of where they currently reside, as long as their marriage ceremony was legal in the state in which it was performed.
This will surely affect many Virginians who work for the federal government. However, according to University of George Mason Professor of Government and Politics Robert Dudley, this does not make the state laws defining marriage between one man and one woman unconstitutional unless they are to be challenged in federal court or overturned by elected officials.
“The decision is clearly a win for gay rights activists, but it’s a narrow win. What the Supreme Court is saying is ‘we really don’t want to get involved in this (on the state level),’” because for the federal government to do so would be to override states' rights to make their own laws as per the 10th Amendment.
Therefore, if the prohibition of same-sex marriage is to be overturned in the Commonwealth, Dudley believes it would have to come from Virginians electing more socially-liberal candidates.
Dudley believes this could make for an interesting election season. Democratic Gubernatorial candidate Terry McAuliffe has already said he stands for same-sex marriage rights in Virginia, where his opponent Republican Ken Cuccinelli supports limiting legal marriages in Virginia to traditional marriages.
“Terry McAuliffe had stated a position. Last time he ran he was tentative; but he isn’t tentative anymore, so it’s going to be fought out,” Dudley said.
However, even a pro same-sex marriage governor would not likely be able to repeal Virginia’s 2006 Marriage Amendment to Virginia’s Constitution, which is essentially a defense of marriage act for the state as championed by Del. Bob Marshall, the assistance of the state legislature would be required to repeal the amendment.
And even though Virginia voted to turn blue in the presidential election, election trends show that fewer Democrats turnout in statewide elections, leaving Virginia’s General Assembly Republican and conservative-leaning.
This discrepancy between would-be voters and actual voters could explain a May 2013 Washington Post Poll that shows that 56 percent of Virginians support same-sex marriage.
This could also mean that same-sex laws in Virginia will not change until an overwhelming majority of voters demands it changes.
In the meantime, marriage in Virginia and in other conservative states will fall within a strange paradox. Ask a gay couple in Virginia if they are married, and their response could be, “Depends on who is asking.”
As for Virginians who have been married in D.C., Maryland or some other U.S. state which recognizes same-sex marriage, they would be married for the purposes of the federal government entitling them to health insurance under (FEHB), life insurance (FEGLI), dental and vision insurance, retirement, and flexible spending accounts; however, their marriages would not be state-recognized.
With the Internal Revenue Service (IRS) under enhanced scrutiny to change its laws to include all married couples, this dual definition of marriage could cause some confusion around tax season. What becomes tricky, explained Dudley, is that same-sex Virginian-married couples may find themselves in a position where they could file jointly federally, but as single through their home states. Since most people use the same filing method for federal and state taxes, this could require additional work.
A dual definition of marriage is quite new to the U.S. Dudley said it has always been up to the states to enact their own laws regarding marriage, but previously the federal government followed the state’s definition for federal purposes.
Then again, the federal legislature could weigh in as well, setting an over-riding law of the land, but Dudley said this unlikely to happen any time soon.
“There is a Bill in the Senate that would eliminate DOMA entirely. However, I don’t think that is going to pass,” Dudley said. “I don’t see it getting past the House of Representatives.”
What all U.S. citizens can expect are changes on the federal level. Dudley said there are some 1100 federal laws and regulations that have to be rewritten to address the Supreme Court Decision.
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