How a possible Supreme Court ruling on same-sex marriage could affect Virginia

Same-sex marriage protection gains momentum in the Senate

FOX 5's Katie Barlow reports that a bill to protect same-sex marriage rights is gaining momentum in Congress as concerns grow that the Supreme Court could later overturn the right.

VIRGINIA - There's a growing bipartisan movement in Congress to codify same-sex marriage rights as concerns grow among activists that marriage equality could be on the chopping block next after the Supreme Court's decision last month overturning the right to abortion.

The growing concerns come a day after the House of Representatives voted to overwhelmingly approve legislation that protects same-sex and interracial marriages amid concerns that the Supreme Court decision on Roe v. Wade could jeopardize other rights criticized by many conservative Americans.

Dozens of states have what are called zombie laws on the books, which are laws banning same-sex marriage that are unenforceable because the Supreme Court protected the right to same-sex marriage in its 2015 decision in Obergefell vs. Hodges. But if the court overturns that decision, those state laws could automatically go into effect.

Virginia has one of those zombie laws on its books.

"Virginia abides by the Supreme Court but our state constitution has an actual prohibition against recognizing same-sex marriage. That has been set aside by the U.S. Supreme Court but if they should rethink their opinion, same-sex marriage recognition would be threatened in Virginia," said Virginia Senator Adam Ebbin.

Ebbin led efforts to get rid of the constitutional ban on same-sex marriage in Virginia. However, the amendment could not pass a required second time. In Virginia, a change to a constitutional amendment has to pass both Virginia Houses twice, with an intervening election between the two times, before it is sent to the voters for their approval.

In 2021, the legislature approved getting rid of the constitutional amendment banning same-sex marriage, but it failed to pass the required second time after being blocked by the Republican-led house earlier this year.

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Experts say if Obergefell were to be overturned, it could impact a significant part of Virginia's population.

"One in 25 marriages in Virginia is a same-sex marriage so this is affecting a lot of people. As a policy matter, this has the possibility of affecting people in very serious ways," said Mary Bauer from the ACLU of Virginia.

Despite the concerns, Virginia Governor Glenn Youngkin recently reaffirmed that same-sex marriage was protected in the Commonwealth by law.

FOX 5 reached out to Governor Youngkin's office for comment, but have not heard back.