How Amendment 2’s side effects could happen

For each one: the words in the amendment that create the risk, Virginia law today, how it could play out, and other facts that bear on it. We don’t predict how a court would rule. Once an amendment passes, these questions are decided by courts, not voters.

  1. 1“Gender” isn’t defined, so this could be used in custody, inheritance and other family court cases.

    What Amendment 2 says
    Government “shall recognize any lawful marriage between two adult persons and treat such marriages equally under the law, regardless of the sex, gender, or race of such persons.” “Gender” isn’t defined.
    Virginia law today
    Some Virginia family laws are written in terms of husband and wife, or mother and father.
    How it could happen
    A spouse could argue in a Virginia court that a law treating husbands and wives differently doesn’t treat the marriage “equally … regardless of gender.” Because “gender” isn’t defined, a court would decide whether it means something different from sex, and how far the rule reaches.
    Other facts that bear on it
    The rule is written about how government treats marriages. It doesn’t mention schools or jobs.

    Sources: Question 2 legal text, Va. Dept. of Elections

  2. 2Religious adoption agencies and charities that get state money could face legal fights over it.

    What Amendment 2 says
    Government must “treat such marriages equally under the law, regardless of the sex, gender, or race” of the spouses. The amendment has no religious exemption.
    Virginia law today
    In Virginia, a private foster or adoption agency can’t be forced to take part in a placement that conflicts with its written religious or moral convictions, and the state can’t deny it grants or contracts for that reason (§ 63.2-1709.3).
    How it could happen
    A married same-sex couple turned away by a religious agency that receives Virginia money could argue that the state, by funding it under § 63.2-1709.3, isn’t treating their marriage equally. The amendment would outrank that ordinary law in a direct conflict.
    Other facts that bear on it
    The amendment is written about government, not churches or private groups. In 2021 the U.S. Supreme Court ruled unanimously that Philadelphia violated a Catholic foster agency’s religious freedom when it ended the agency’s contract for refusing to certify same-sex couples (Fulton v. Philadelphia). The ruling rested on Philadelphia’s contract, which allowed exceptions. No state constitution can override the First Amendment.

    Sources: Question 2 legal text, Va. Dept. of Elections · Code of Virginia § 63.2-1709.3, religious and moral convictions of child-placing agencies · Fulton v. City of Philadelphia, U.S. Supreme Court, 2021

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