Virginia Attorney General Opinion No. 13-114 (January 2014).
Last month (August 2013), I posted about the United States v. Windsor (May 2013) and IRS Revenue Ruling 2013-17 (September 2013) via LinkedIn and Twitter. Recall, this Federal Supreme Court case and IRS opinion both held that same-sex couples would be afforded the same rights as heterosexual couples where they were legally married according to the laws of the location where such marriage was completed. Windsor thus “overruled” the Defense of Marriage Act (“DOMA”) insofar as it purported to usurp state power to define and recognize marriage. The Constitutional underpinning of this decision was the Federal Fifth Amendment protection for the “equal liberty of persons.” In short, if a state recognizes the legality of same-sex marriage, the Federal Government cannot act, via its tax laws, to deny that same-sex legally married couple the same tax benefits other heterosexual, legally-married couples receive.
This case and its reverberations through the legal world was seen as a victory for same-sex marriage advocates. However, Windsor is a very conservative approach to affording same-sex marriages the same legal dignity as heterosexual marriages. A January 2014 Attorney General Opinion from Virginia illustrates the “conservativeness” of Windsor quite well. Therein, the Virginia AG opines that the Virginia Governor has no authority under the State Constitution to order the Virginia Department of Tax to recognize same-sex marriages for the purposes of Virginia income tax treatment. This AG Opinion relies exclusively on the Virginia Constitution and statutory scheme to arrive at this conclusion. The Federal Fifth Amendment analysis in Windsor, consequently, does not apply. The Commonwealth of Virginia thus takes advantage of the conservativeness of Windsor to continue denying same-sex couples in Virginia the same marital dignity and tax treatment as heterosexual married couples.
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