Welcome to the last article in our four-part series on Virginia’s 2026 proposed constitutional amendments. Virginians will be voting on these amendments on November 3. In this article, we take a closer look at HJR 9, which repeals our obsolete same-sex marriage ban, prohibits the state from denying a marriage license to two adults based on sex, gender or race, and guarantees the recognition of lawful marriages regardless of sex, gender or race.
Background
For the moment, same-sex marriage is legal in all 50 states. In 2015, the US Supreme Court ruled in Obergefell v. Hodges that same-sex marriages are a constitutional right. Prior to Obergefell, states took varying positions on whether such unions were legal. By 2014, lawsuits challenging the prohibition of same-sex marriages had been brought in every state with laws that still denied marriage licenses to same-sex couples.
In Obergefell, Justice Anthony Kennedy, who wrote the majority opinion, noted that “the Court has long held the [fundamental] right to marry is protected by” the Due Process Clause in the US Constitution. The Court ruled that under the Equal Protection clause, states could not refuse to recognize same-sex marriages performed in other states on the basis of sexuality. Obergefell ended the legal uncertainty that same-sex couples faced if they moved to or worked in a state that prohibited same-sex marriages.
Impact of Dobbs‘ Decision on Obergefell
In 2022, the US Supreme Court heard Dobbs v. Jackson Women’s Health Organization. In Dobbs, the Court overturned Roe v. Wade, holding that the US Constitution does not grant the right, under the Due Process Clause, to an abortion, and that the right to regulate abortions should be left to the states. So, what does an abortion ruling have to do with same-sex couples’ constitutional right to marry? Well, according to Justice Clarence Thomas, everything.
In his concurring opinion, Justice Thomas declared that the Due Process Clause “does not secure any substantive rights.” Therefore, he argued that “in future cases, we should reconsider all of this Court’s substantive due process precedents,” including Obergefell. See Dobbs, 141 S. Ct. at 2301.
In 2022, former Pres. Biden signed the Respect for Marriage Act. This law requires all US states and territories to recognize lawful same-sex marriages performed in other jurisdictions, even if those jurisdictions later prohibit same-sex marriage. This law was passed due to concerns that the Supreme Court could overturn Obergefell.
This concern also prompted Delegate Mark Sickles (D-Alexandria) to sponsor HJR 9.
HJR 9
Although Obergefell recognized the legality of same-sex marriages nationwide, many states left old statutory and constitutional bans on their books. Twenty-six states still have constitutional bans – Virginia is one of them.
HJR 9 does 3 things: it amends the Virginia Constitution by repealing the former definition of marriage as being “between one man and one woman,” it prohibits the denial of marriage licenses to two adults lawfully seeking marriage “on the basis of the sex, gender or race of such persons,” and mandates the recognition of “any lawful marriage between two adult persons…regardless of the sex, gender or race of such persons.”
According to Del. Sickles, “By advancing the removal of the ban on same-sex marriages, civil unions and domestic partnerships, Virginians will be protected should the Supreme Court reverse” Obergefell.
Conclusion: HJR 9’s Importance to Virginians
As noted above, 26 states have constitutions that ban same-sex marriage and 30 states have statutory bans. As long as Obergefell remains valid law, those bans aren’t enforceable. If, however, the Supreme Court takes up Justice Thomas’ invitation to overturn Obergefell, these laws will be active once again. We could return to the same confusing and contradictory legal landscape that folks found so difficult to navigate before Obergefell.
Consequently, come Nov. 3, we strongly urge you to vote Yes on HJR 9!
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- Share this article and vote Yes for HJR 9 on Nov. 3!
