House Joint Resolution No. 3 (2026)

Right to Marry

Updates:

  • Jan 14 – passed in the House of Delegates.  Peninsula Delegate votes below:
HD 60 69 70 71 86 87
Delegate Wyatt Downey Simonds Anderson Thornton Ward
Vote N Y Y Y Y Y
 
  • Jan 16 passed in the Senate.  Peninsula Senator votes below:
SD 23 24 26
Senator Locke Diggs McDougal
Vote Y N N

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Summary As Introduced 

Marriage between two individuals; repeal of same-sex marriage prohibition; affirmative right to marry. 

  • Repeals the constitutional provision defining marriage as only a union between one man and one woman.
  • Prohibits denying the issuance of a marriage license on the basis of sex, gender, or race.
  • The Commonwealth and its political subdivisions are required to recognize any lawful marriage between two parties.
  • Religious organizations and clergy acting in their religious capacity have the right to refuse to perform any marriage.

What’s on This Page

1.   Observations
2.   Comparison table

3.   Key points for voters

Observations

  • The U.S. Supreme Court (SCOTUS) ruled (5-4) that same-sex marriage is constitutional on June 26, 2015, in Obergefell v. Hodges. 
  • The Respect for Marriage Act (RMA) is U.S. federal law signed in 2022 that provides federal recognition and protections for same-sex and interracial marriages.
  • This amendment aligns Virginia’s Constitution with SCOTUS decision and federal law.
  • This will be the first instance of the term “gender” in the Constitution of Virginia and, in this instance, goes beyond the SCOTUS decision and RMA.
  • The proposed amendment goes beyond that decision and the RMA in that neither use the term “gender”.
  • There is no commonly used definition for “gender”.  However, the federal government defines sex and gender as, “Sex is based on the biological attributes of men and women (chromosomes, anatomy, hormones), while gender is a social construction whereby a society or culture assigns certain tendencies or behaviors the labels of masculine or feminine.”

Comparison Table

State Constitutional Text (Article I, § 15-A)    Current: Defines marriage as only between one man and one woman. This provision, known as the Marshall/Newman Amendment, is still written in the Virginia Constitution. (Legal Information Institute)    Proposed: Repeals the gender-specific definition and replaces it with a neutral “right to marry” for adult persons. It also removes other restrictions tied to the old text. (Proposed Amendment)
Effectiveness of Constitutional Ban    Current: The constitutional ban is currently unenforceable because federal courts have held bans on same-sex marriage unconstitutional (and Obergefell v. Hodges legalized same-sex marriage nationwide). (Legal Information Institute)

   Proposed: If passed by the required two legislative sessions and approved by voters, the amendment would permanently erase the outdated ban from the state constitution. (Metro Weekly)
State Statutory Law    Current: Virginia statutory law was updated (e.g., §20-13.2) to require that no marriage license can be denied on the basis of sex, gender, or race and to protect clergy’s rights to refuse officiation. (American Marriage Ministries)    Proposed: The constitutional amendment would embed marriage equality in the Constitution itself rather than relying only on statute or federal law. (Proposed Amendment)
Recognition of Marriages    Current: Same-sex marriages are recognized in Virginia because of federal constitutional law and updated state statute. However, if Obergefell were ever overturned, the old constitutional language could theoretically become enforceable again. (Axios)

   Proposed: Would guarantee that Virginia must recognize and treat equally all lawful marriages between two adult persons, regardless of sex or gender, even if federal law changes. (Proposed Amendment)
State Obligations & Prohibitions    Current: Under current statute and federal law, the Commonwealth must issue marriage licenses to same-sex couples. However, this is statutory (law passed by the legislature), not in the Constitution. (American Marriage Ministries)    Proposed: The amendment would impose a constitutional obligation preventing denial of marriage licenses on the basis of sex, gender, or race at the constitutional level, making it harder to reverse. (Proposed Amendment)
Religious Liberties    Current: Current statute explicitly protects clergy and religious organizations from being required to perform marriages that violate their beliefs. (American Marriage Ministries)    Proposed: The proposed constitutional amendment as drafted does not itself create new religious exemptions, but would coexist with statutory protections (and those protections could continue through separate laws). (Proposed Amendment)
Process / Implementation    Current: The constitutional ban remains until it’s formally removed. Same-sex marriage is legal through court precedent and statute, not through the state constitution. (Legal Information Institute)    Proposed: The amendment must pass the General Assembly twice (in consecutive sessions separated by elections) and then be approved by voters in a statewide referendum to be adopted. (Metro Weekly)

Key Points for Voters

  • Same-sex marriage is already legal in Virginia 
    • Same-sex couples can marry in Virginia today.
    • This is because of federal court rulings (Obergefell v. Hodges) and state statutes, not because of Virginia’s Constitution
  • Virginia’s Constitution still contains a same-sex marriage ban
    • The Constitution still defines marriage as between “one man and one woman.”

    • That language is unenforceable, but it has not been removed. 

  • What the amendment would do
    • Repeal the existing constitutional ban on same-sex marriage.
    • Add a constitutional guarantee that:
      • Marriage is a fundamental right
      • Marriage is between two adult persons

      • Lawful marriages must be recognized and treated equally bu the state

  • What the amendment would not do
    • Change who can marry today beyond current law.
    • Legalize polygamy (the amendment specifies “two” persons).

    • Require clergy or religious institutions to perform marriages contrary to their beliefs (those protections exist in statute).

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