Following years of failed attempts under Republican control, Virginia’s newly empowered Democrats finally passed bills repealing two outdated state laws that prohibited same-sex marriage.
States have two types of bans on same-sex marriage: statutory and constitutional. Statutory bans appear in state family law, while constitutional bans are embedded in states’ constitutions.
“Most of them are still on the books, though they are not enforceable,” Jason Pierceson, a political science professor at the University of Illinois Springfield, told NBC News.
“Democratic control of legislatures has created opportunities to get rid of some bans,” Pierceson said. “That’s the big difference between Indiana and Virginia.”
There were two phases of same-sex marriage bans, according to Pierceson. The first one began in the 1970s, when gay couples would apply for marriage licenses and many state judges at the time ruled that these unions were not prohibited. This prompted lawmakers to explicitly outlaw same-sex marriage.
The second phase followed a 1993 Hawaii Supreme Court decision that found denying same-sex couples the right to marry may violate the equal protection clause of the state’s constitution. That ruling prompted state and federal lawmakers to take action.
Utah was first to enact a statutory ban in response to that decision in 1995, and then a year later, Congress passed the federal Defense of Marriage Act, or DOMA, which defined marriage as between one man and one woman. Several states adopted their own “mini-DOMAs” after that, according to Pierceson, and by the year 2000, he said “virtually every state,” with the exception of New Mexico, had a “statutory ban on same-sex marriage.”
These “mini-DOMAs,” he noted, banned gay marriage in family codes and state law, not the constitution.
Since the legalization of same-sex marriage federally, hundreds of state bills have been introduced that poke holes in gay marriage in various ways.
“I think in the short term marriage is fairly safe. It’s hard to see the Supreme Court overturn itself in the next couple of years,” he said, though he added that he is less confident about its long-term safety.
“The religious right, conservative movements and the Republican Party are hoping for an overturning of Obergefell with a more conservative judiciary,” Pierceson said.
“The religious right has not said, ‘We lost same-sex marriage, and we are moving on,’” Pierceson said. “They are still fighting same-sex marriage, both politically and legally.”
This story appeared online on NBC News.
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