Yes, Same-Sex Marriage is Legal. But Virginia’s Constitution Still Says Something Different.

Sen. Ebbin’s amendment would “bring Virginia into the 21st Century,” he says.

RICHMOND- Dr. Carol Schall and Mary Townley have lived in Virginia for over 30 years. They fell in love in this state. They watched their daughter, Emily, grow up here. But, despite same-sex marriage being legal for five years, there’s still language in Virginia’s constitution that discriminates against families like theirs. Virginia State Sen. Adam P. Ebbin has introduced an amendment to finally change that. 

“It’s important to bring Virginia into the 21st Century,” said Ebbin. “SJ 270 would repeal the 2006 amendment that defines marriage as ‘only a union between one man and one woman.'”

While the Supreme Court legalized same-sex marriage in 2015, that amendment is still an unwelcome stain on Virginia’s constitution.

“I don’t vote on everybody else’s marriage, so nobody should have to vote on mine,” said Townely. “So it’s very, very important to us to see that language be removed. [The change] provides us an opportunity to feel more welcomed in our home state.”

With new conservative Supreme Court appointees, there is the possibility the federal law falls through. In that case, the status of same-sex marriages would depend on the law in individual states. Changing Virginia’s constitution does more than just allow weddings. It provides security for these couples in times of need.

READ MORE: 2020 Has Been a Revolutionary Year for LGBTQ Protections in Virginia.

How the Current Law Came to Be

Proposed by Sen. Steven Newman, the 2006 amendment was criticized at the time for being blatantly discriminatory to same-sex relationships. The Republican senator had a long history of supporting anti-LGBTQ and pro-life legislation. However, this bill, dubbed the Marshall-Newman amendment, was one of his most “controversial”. 

“Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions,” reads the amendment. “This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage.” 

“Basically in our bill of rights, it’s saying that some people don’t have rights,” said Claire Gastañaga, executive director for the ACLU VA. “I’ve always thought that it was, at best, ironic. And at its worst, it’s twisted and discriminatory.”

She, alongside several others, formed a coalition to stop the bill from making it to the ballot. But in spite of their efforts, voters approved the bill with a 57% majority.

A Federal Change

In 2015, the case Obergefell v. Hodges provided rights for same-sex marriage. But before then, things were tough. Gastañaga saw much of it firsthand. In the early 2000s, she was a part of the original effort to keep the 2006 amendment off the ballot. She and several others were a part of the Commonwealth Coalition. Together, they tried to let people see the parallels between this amendment and Loving v. Virginia, the Supreme Court case that legalized interracial marriage across the country. 

“We tried to help people see that this was just another example of trying to take marriage equality away from people in a way that was in violation of their fundamental human rights,” said Gastañaga. And while it was close, the amendment unfortunately made it on the ballot. But now, more than a decade later, the provision might be tossed out.

And while the federal law makes it next to useless, what would happen if Congress repealed that national protection? Then the decision depends on what state laws say. Repealing this discriminatory amendment helps protect civil rights for LGBTQ Virginians. 

“One of the dangers is that if the Supreme Court were to overrule Obergefell, people might try to argue that our constitutional provision somehow becomes valid,” said Gastañaga. “And I would argue that wouldn’t be the case because our constitutional provision wasn’t actually at issue in the Obergefell case, it was decided on a different case. But it’s still a risk. And so getting this out of the constitution is important to making sure that we can’t roll back the clock.”

Virginia Isn’t Always so Loving

Back in 1983, Townley and Schall were both working in the same school as teachers. Over the years they fell in love, officially calling themselves a couple in 1985. They had a commitment ceremony in Richmond 11 years later. Eventually Townley gave birth to their daughter, Emily, in 1998.

Despite being a couple for so long, they couldn’t get married until over a decade later. They even had to travel across the country to do it.

Townley and Schall, alongside three other Richmond couples, drove all the way to California in 2008. This was a full seven years before same-sex marriage was legal nationwide.

Unfortunately, even after their marriage was official, they still faced discrimination. During the mid 2000s, the family had plans to travel out of the country. But 14-year-old Emily’s passport needed renewing.

“It turned into a massive fiasco where they wouldn’t recognize me (as Emily’s parent) at all,” said Schall. “They crossed my name off the form in front of Emily and said, I’m nothing to her.”

They also made Mary go home and retrieve Emily’s birth certificate to prove that there was no father listed.

“It was absolutely frustrating. It’s kind of like you’re being graded by a teacher with a red pen,” said Townley. “And like you failed is what it felt like. She’s destroying the application, crossing Carol off. It’s just like here you’re respecting all of their rules of the postal service, trying to follow the right protocol. And they just come in and say you don’t matter.”

Same-Sex Marriage is More Than Weddings 

While all couples deserve the wedding of their dreams, marriage is more than just white cakes and receptions in the United States. The state recognizing you as a married couple makes everything from child custody to health insurance easier.

“Family formation is really hugely important to have a legal structure,” said Gastañaga. “So when you deny marriage equality, you’re not just denying marriage equality, you’re denying a fundamental right to have a legally defined family that has the protections of a legal structure that gives different people in that family certain rights.” 

Back in 1998, Townley had a crisis during pregnancy. Since Townley doubled over in pain and was unable to speak, Schall raced her to the hospital. After nurses whisked Townley away in a wheelchair, Schall went to move their car from the ambulance lane. After parking, Schall went back inside and asked the staff about Townley’s condition.

“And after that, the entire interaction changed,” said Schall. Before giving her the information, the staff interrogated Schall about her relationship to Townley. After Schall said she was “like her spouse”, they couldn’t tell her anything.

“They said, we’re sorry, we can’t share any information with you unless you’re related to her,” said Schall. “And I said, I was just here. You just spoke with me. I gave you her license. But they wouldn’t give me any information.” Eventually, they sent her to a private room with windows so high that she could barely see out of them.

No One Ever Came

Hospital staff said a doctor would update her on Townley’s condition, but no one ever came. It wasn’t until after after her daughter’s birth when Townley was well enough to ask for her partner that Schall could finally see her.

“No one was with me. I felt so alone. Mary was alone. I mean, it was crazy,” said Schall. “Happily, Emily was born and she was safe and sound and Mary was fine, but those moments where the scariest of my life.”

A few days later, Schall filed for full joint and physical custody of Emily. After the Chesterfield Court granted custody, Schall carried that legal document in her purse everyday and every where she went. That piece of paper was the first thing she switched out when she changed purses.

“I lived in fear that if we crossed a straight state line and we were in an auto accident, no one would recognize me as a part of this family,” said Schall. “Or, in my home state, even if we had an auto accident, nobody would recognize me.”

Now, the document, folded and dogeared over the years, is in the Virginia Museum of History and Culture archives.

Federal Threats to Same-Sex Marriage

In October, alarm bells went off when Trump-appointed Supreme Court Judge Amy Coney Barrett refused to say that Obergefell v. Hodges was a good decision. Barrett also declined to pass judgment on other court precedents that were ­instrumental in the Supreme Court’s recent embrace of gay rights. This spelled out disaster for many LGBTQ rights advocates. 

“She defended the dissenters in the court’s landmark marriage-equality case,” said Human Rights Campaign President Alphonso David to the Washington Post. “She sidestepped questions about preserving LGBTQ nondiscrimination protections. And she refused to denounce prior writings and statements that, if implemented through the court, could result in a systematic regression of LGBTQ rights.” 

When Emily Townley heard the news of Coney-Barrett’s appointment, she burst into tears. Alone in her New York City apartment thanks to COVID-19. she face-timed her mothers for support.

“I just broke down crying. I didn’t cry when RBG died, even though that was heartbreaking, but I cried when they nominated Amy Coney Barrett, because I was like, they’re gonna really try to like repeal this,” said Emily. “(Schall) said we’ll make it through everything and anything.”

While the results of the most recent election were promising, there’s still a lot anxiety about where the future of marriage equality stands. So, it’s important that states have effective protections for LGBTQ rights in place, just in case federal legislators decide to strip them away. 

“I often say to people in Virginia, sometimes we spend way too much time looking across the Potomac at Washington for our rights or our needs or our wants, and it’s really time for Virginians to turn their back on the Potomac and look at the James,” said Gastañaga. “And really look to Virginia legislators to create a safety net for Virginians that will assure that they’re protected against discrimination and that their rights to Liberty are protected under Virginia law.”

What Comes Next?

Right now, legislators still have to pass the bill protecting same-sex marriage. This may happen during the upcoming General Assembly Special Session on Jan. 11. However, considering this session is shorter than most, it’s not guaranteed. If you’d like to contact your legislator, visit the General Assembly website. 

This bill faces a long road to approval. If passed, it could join a long list of LGBTQ rights protections passed this year, including the gender/sexuality discrimination ban from April. If you or someone you know has faced discrimination because or gender or sexuality, Gastañaga encourages reaching out to the ACLU VA for help. You can file an intake form.
However due to COVID-19, they’re operating at a limited capacity.

Arianna Coghill is a content producer with the Dogwood. You can reach her at [email protected]