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Virginia Files Appeal on Gay Marriage Ruling

June 20, 2018

In what Virginia Attorney General Mark Herring called a “procedural move,” the Commonwealth filed an appeal Monday with the 4th U.S. Circuit Court of Appeals on the federal court case that would overturn the state’s ban on same-sex marriages.

Herring, who opposes the ban, said that the appeal of Bostic v. Rainey will help expedite the appeals process and “ensure that higher courts can swiftly rule on the critical issues in this case.” He said the appeal, filed on behalf of defendant Janet Rainey, does not change the Commonwealth’s position that the ban unconstitutionally denies the rights of marriage to same-sex couples.

Two weeks ago, Judge Arenda Wright Allen struck down the voter-approved amendment to the state constitution that defines marriage as being between a man and a woman. She stayed her ruling until the appeals court rules on the case.

The outcome of the appeal could affect state income tax filing for legally-married same-sex couples residing in Virginia. Under a bulletin from the Virginia Department of Taxation (TAX) issued in November 2013, same-sex married couples who file federal income tax returns jointly are required to file Virginia income tax returns as single individuals.

Last year, in U.S. v. Windsor, the U.S. Supreme Court overturned a key portion of the Defense of Marriage Act (DOMA) that defined “marriage” as a union between one man and one woman and “spouse” as a person of the opposite sex who is a husband or wife. The U.S. Internal Revenue Service (IRS) and U.S. Treasury Department announced that legal same-sex marriages would be treated the same as heterosexual marriages for federal taxation purposes, effective for the 2013 tax year.

While Virginia income tax law generally conforms to federal income tax law, TAX cited the prohibition of state recognition of any marriage other than one between one man and one woman in making its ruling.

Fellow defendant George Schaefer, a judge in Norfolk Circuit Court, also appealed the ruling. Schaefer cited the amendment last summer in rejecting a marriage license application from Norfolk couple Timothy Bostic and Tony London. Bostic and London then filed a complaint in federal court, with Chesterfield County couple Carol Schall and Mary Townley also signing on as plaintiffs. Wright Allen found the ban to be in violation of the equal protection clause in the 14th Amendment.

Oklahoma and Utah also have same-sex marriage cases pending before a federal appeals court involving amendments similar to Virginia’s. The losing parties in those appeals are likely to appeal to the U.S. Supreme Court.

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