For all the whining about Attorney General Herring's position regarding defense of a patently unconstitutional scar on the Virginia Constitution, he never mitigated enforcement. Not one single same-sex couple has been issued a marriage license in Virginia while we wait for the law to be struck. The opinions of both his predecessors regarding the effects of the law remain in force; for now. But consider this. When the marriages of same-sex couples are inevitably recognized in Virginia, those couples will have an option that other married couples will not: filing their Virginia income tax returns with the most advantageous filing status.
Based upon an opinion by then Attorney General McDonnell and guidance from former Attorney General Ken Cuccinelli, the Virginia Department of Taxation does not allow same-sex married couples to file joint income tax returns even though they must use the status on their federal tax returns. Everyone else must. What was (and currently remains) an undue burden on same-sex couples (the requirement to construct fictional federal income tax returns to calculate Virginia income taxes) transforms to an advantage; consistent with federal policy after the Supreme Court DOMA decision, married same-sex couples will likely be allowed to choose the filing status that is to their advantage for the years when they were prohibited from using a married filing status.
So my advice to Virginia's married same-sex couples: if filing using a status other than married is to your tax advantage, file this year's return soon, before the stay on yesterday's ruling is removed; after that, you'll be like everyone else. Then for the three years prior to this, recalculate your Virginia tax returns to determine if you should file amendments, in the same way you should have with your federal returns last year. How the Department of Taxation will handle these amendments could be a bit more complicated, so stand by for guidance.
For other married couples, you just won't have equal treatment under the law. You might want to send the bill to Senators Marshall and Newman who spearheaded the amendment or those George Allen strategists who supported it in an underhanded effort to save his bacon.
I'm no lawyer, but it seems to me that, as significant as this ruling is, it doesn't change the situation in Virginia at all, where in 2006 for the first time the state constitution was amended to take rights away from citizens of the state. That marriage amendment doesn't even allow for civil unions. It doesn't allow for what used to be called "common law marriages," where a couple - gay or heterosexual - that stayed together for a set number of years was recognized as being married.
When this case gets to the Supreme Court, I can't guess how the far-right, conservative "gang of five" will rule. Will they go with their "states' rights" tendency and agree that the federal government has no role to play in defining marriage, or will they be so biased by their homophobia that they will reinstate DOMA? Beats me.
Either way, at some point Virginia must confront the injustice that voters put into our constitution six years ago. Barring a ruling saying that all Americans have a constitutional right to marry by the Supreme Court, it will take far more political courage than Richmond's politicians have to undo the wrong done in 2006.