RICH MEAGHER: Our second panel will discuss Ballot Question 2, a proposed amendment to the Constitution of Virginia that concerns what its sponsors say is, "equal treatment under the law for marriage, regardless of sex, gender, or race."

So joining us is Jahd Khalil, state politics reporter for VPM News, and Caroline Legros, who is the director of civics education at the Virginia Museum of History and Culture.

Please join me in welcoming our panel.

(attendees applauding) So Jahd, I'll start with you.

In some sense, this amendment is really about cleaning up the Constitution, right?

Removing old language that actually doesn't have any force right now.

Is that right?

JAHD KHALIL: Yeah, so one thing that's kind of interesting when I talk about this with friends of mine or, you know, just people that I'm actually not, you know, engaging with for reporting, is that they're surprised to learn that there actually is a ban on same-sex marriage, marriage equality, whatever you want to call it on the books in Virginia.

So this dates back to 2006.

It was put into the Constitution in a similar way to how this amendment is being decided upon by voters.

And I brought it with me, so I just wanted to read it, part of it.

So it says, and this is like you said earlier, Rich, that this is in the Bill of Rights of the commonwealth and the state constitution.

So it's section 15A of Article 1 that only a union between one man and one woman may be a marriage valid in or recognized by this commonwealth and its political subdivisions.

This commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate, and then there's a few things of marriage.

So basically, the state can't do something like a civil union or something like that, that would basically, like, get around the ban on marriage.

And this is coming up now.

As most of you know that same-sex marriage is legal in Virginia, and that's because of the Supreme Court.

We talked about earlier in the panel about how there's certain rights under a right to privacy that hit on other things.

And this is one of those issues.

RICH MEAGHER: Yeah, and we'll unpack a little bit about how the current amendment will change that, but I wanted to get, again, a little bit of sense of a big picture from you, Caroline.

And I know you've talked about this with Jahd.

You talked to him for VPM's amazing Amending Virginia series.

So I know you can handle this question.

What is marriage anyway?

And give us a brief history of it in the commonwealth.

CAROLINE LEGROS: Easy prompt.

So Virginia has treated marriage differently over its many century history.

So when we had our great conversation for Amending Virginia about, you know, kind of the current amendment as is proposed, we didn't get to go into this 400-year history of how the commonwealth regarded marriage and what it was meant to be and for whom.

So from the earliest time of Virginia's history as a colony, the idea of marriage was really about property.

It was about who was allowed to inherit or be entitled to the property of whom.

So English common law essentially, you know, regulated marriage to the degree that you could make claim to property or to an estate based on, you know, those sort of common law marriages.

The first sort of text that we see, legal text that we see in Virginia, and this is very daunting with two legal scholars sitting in the audience today, but the earliest references crop up around the time of the 1660s.

So in 1662, we have the "condition of the mother" statute, which is actually talking about race.

It's the law that essentially said that no longer would the condition of a child be tied to that child's paternity, that child's sort of identity would be tied to its mother's identity.

And this was to sort of allow for the continuation of the institution of slavery by ensuring that any child that was born of an enslaved woman would then be considered themselves enslaved, whether the father of that child was say a white Englishman or, excuse me, or another enslaved individual.

So within that text, you actually have a reference to some added fines for relationships between men and women of different races.

This is the first time we see any type of kind of language talking about the way in which people are allowed to interact with each other.

The idea of marriage as a right is something that is really a 20 and 21st century concept.

This was not something that would've been seen as an alienable right by the founders.

The first ban on certain types of marriage actually, again, touches back on this idea of racial identity and how groups from different racial backgrounds were permitted to intermingle with each other.

Bacon's Rebellion is this uprising against the royal governor.

This is essentially a large group of individuals, who were unhappy with colonial rule, banding together, whether they were indentured servants, enslaved Africans, poor, you know, tenant farmers.

These were individuals who were sort of opposing that power from the colonial rule.

And so following Bacon's Rebellion, we have a law that actually prohibits marriage between a man and a woman of different races.

So this is the first time we see some legal, you know, writing codifying that.

And then we don't see any formal laws kind of taking place until we get to the 1920s.

And the Racial Integrity Act, again, this idea of how, you know, different groups from different racial backgrounds would be permitted to interact with one another, that also had codifications about marriage.

And this becomes really important in the 1967 Loving v. Virginia Supreme Court case, where interracial marriage is found to be something that was constitutional - that was legal.

The laws like the Racial Integrity Act prohibiting it were essentially deemed unconstitutional.

However, the Racial Integrity Act wasn't repealed until 2020.

So when you look at the ways that some of these laws and some of these statutes that are, you know, prohibiting interactions between different groups of people, sometimes it takes a constitutional amendment to actually, or a formal repeal of that law to make that change actually take effect.

So, now that we're sort of looking at marriage in the 20th and 21st century, the conversation sort of shifted away from whether people of different races were permitted to marry one another to whether or not people of, you know, the same gender would be able to be married.

And that's where the kind of text of this amendment comes into place now.

And I think it's interesting just to note the sort of throughline as you look at the language of the amendment that's proposed, there's actually a direct connection to Loving v. Virginia.

So if you look at the first line that's sort of amended in this passage in Section 15, it says that "marriage is one of the vital personal rights essential to the orderly pursuit of happiness."

So that's part of the proposed text of the amendment, essentially saying that the right to marriage is a key sort of right and privilege that we're meant to have access to as Americans.

This is almost a direct quote from Chief Justice Earl Warren in the Loving decision, you know, sort of finding that interracial marriage was, in fact, constitutional.

So that throughline I think is there.

RICH MEAGHER: Thus endeth the history lesson, right?

That's what we mean when we're saying- CAROLINE LEGROS: The speedy version.

RICH MEAGHER: The speedy version, yes.

And I should point out that Caroline has like five words written on her piece of paper there to remember all that stuff.

So I'm impressed.

So Jahd, we've got a lot of work to do to catch up with that.

But I did want to get a sense of, you know, so getting back to the text of the amendment, right?

And so just in the same way the Racial Integrity Act was on the books- CAROLINE LEGROS: That's right.

RICH MEAGHER: But didn't have the force of law for a long time, right, the amendment, the constitutional language that you read earlier, Jahd, is on the books, but it doesn't have the force of law anymore.

So why is that?

JAHD KHALIL: Right.

RICH MEAGHER: Give us the context for that.

KHALIL: So, and this is something that's very important for all of these amendments and a lot of the debates and the arguments that are being put for and against these amendments is, and it, kind of, gets back to, or it does get back to the hierarchy of laws in the US.

And I'm sure that everybody knows this, but part of my job is to say things that people already know to just kind of frame stuff.

So US Constitution, top thing, federal law, state constitutions, state laws, like broadly how it works.

So the US Constitution is interpreted by the courts.

So in the 2015 decision, Obergefell v. Hodges, that gave people the right to, or recognized the right or interpreted the Constitution as having a right to marriage regardless of your sex.

So that, because of this hierarchy, you know, that affects the US Constitution, that's the highest thing.

So not even, you know, presumably Congress could have tried to do a law about this, and that's sort of a debate that we're probably, you know, that's kind of ingrained in this, but that interpretation of the US Constitution is going to trickle down to the states.

So that trumps the language in the state constitution that voters put in there in 2006.

RICH MEAGHER: Right, and there is this broader concern right among the supporters of this amendment that without this amendment, right, something could change in the political environment, right, at the national level.

That would mean that this language would sort of come alive again, right?

Get reactivated.

Caroline, can you tell us a little bit about how this language got into the constitution.

That wasn't exactly part of your history lesson, right?

Because that's pretty recent.

It's not from the 1600s.

CAROLINE LEGROS: Right.

So the first panel talked a little bit about this sort of originalist interpretation of the 14th Amendment.

And what I think is difficult to sort of understand as a just member of the citizenry is we are depending on justices and judges to interpret this language and these precedents that came before, and try to understand how to apply that interpretation to current law and current statute.

So you know, the reason that this is kind of coming up now is it all sort of goes back to Dobbs again.

We have Clarence Thomas in his concurring opinion, writing specifically about Obergefell v. Hodges, and saying, "If we're changing the way that we are, if we've revisited this notion of the right to abortion and its protection within the 14th Amendment, we have all these other cases that warrant, you know, a revisit to determine whether or not we, in fact, the court made an error when Obergefell was decided."

And so what that means is that language like this sort of is drawing on different threads, not just from, you know, as I said, the Warren Court, thinking about these fundamental rights, but also looking to what other states have done, sort of, in the wake of Dobbs and sort of hearing a dog whistle or kind of a, you know, sort of language that might suggest that this right that is seen as, you know, fundamentally enshrined in law, the right to same-sex marriage may be at risk.

That language is being put into place to shore up those protections as much as possible.

So for this proposed amendment, you'll see that there is the first, for the first time in the Virginia State Constitution, reference made to sex, gender, and race.

So this is the first time that that language is being included in the Constitution.

RICH MEAGHER: Yeah, so you mentioned the Loving case, right, which is pretty well known to a lot of folks in Virginia.

They've made movies about it, right?

But it is a case that is famous for striking down laws against interracial marriage.

But from what you're saying here, right, that has never been enshrined in the Constitution.

CAROLINE LEGROS: That's right.

MEAGHER: That sort of right to marriage in that sense.

CAROLINE LEGROS: That's right.

And I think, you know, when you're looking at something like a constitutional amendment, why not just, you know, as Jahd is saying, why not just have a law passed?

Why not, you know, have something done in the legislature?

The constitutional amendment provides a much more robust protection for whatever the issue is that is being, you know, discussed or proposed.

And so for, you know, the proponents of the amendment, they feel as though this is the most surefire way to ensure that unless something happens on the federal level that would trump this, in other words, if we have a constitutional amendment made to Virginia's constitution, it would require essentially a federal constitutional amendment to sort of override it based on the supremacy clause.

That seems highly unlikely.

Constitutional amendments on the federal level are notoriously difficult to enact.

Or there's even some debate as to whether a federal law passed by Congress would, in fact, have the authority to supersede the state laws that govern marriage at a state level.

RICH MEAGHER: Without this amendment in place, right?

CAROLINE LEGROS: That's right.

RICH MEAGHER: So Jahd, you talked to some opponents.

What are some of the concerns raised by folks, who don't want to support this amendment?

JAHD KHALIL: So you may be familiar with some of these arguments if you've watched our series Amending Virginia, which I'm very smoothly plugging right now, but... So one of those arguments that we were hearing while we were reporting that episode was about basically the argument that children need, the best home for a child has, you know, a mom and a dad who are married.

And I was interested in, you know, kind of flushing that out a little bit.

So I ended up, I spoke with a professor at the University of Amsterdam, who has done a very long study of lesbian couples with children.

And I'm going to sort of paraphrase from something that she said in my interview, but she said that we didn't find any significant differences between the children and the same-sex parent families in comparison to the national data in the US.

So that's sort of what, you know, sociological sort of, you know, record says versus this argument that's being made.

So that's one of the arguments.

And I think that kind of gets at concern from, you know, social conservatives, religious conservatives about our laws being a sort of a cultural touchstone or a cultural reference, or... you know, kind of launching point that people use.

And I think that is a lot of the concern that this being put into the- RICH MEAGHER: That it sort of sets the default model, and it's a model that they don't agree with for families.

Would that seem right for that?

Yeah, and so the data, as you're suggesting, we don't have a lot of data that would bolster this claim that children do better in traditional male-female marriage structure, but the folks still feel very strongly about it in a number of ways.

One of the things that they're worried about, right, is that there is this sense that the enshrinement of marriage, same-sex marriage in law, amounts to a kind of forced participation in a practice, in a way of living that some folks of faith do not agree with.

What's the response that some folks, you know, that the proponents of this amendment offer to say either a response about an argument or a response in the law that might protect folks of faith, who don't want to go along with this, even if it is in the Constitution?

JAHD KHALIL: So there are two things that have come up in terms of, you know, kind of context for this argument.

One is that Virginia recently passed a law that basically protected, you know, it made it so that you couldn't deny a a same-sex marriage on the sort of clerical level, so like clerks of court and things like that, that you have to get your marriage registered and that sort of thing.

But it also had protections for members of clergy that they don't have to, you know, oversee a marriage between two people of the same gender, or, you know, a non-binary person and another person.

So that's one thing on the state level.

There's also court cases.

So, you know, there's kind of two famous ones about a website designer and a cake decorator that they wanted the ability to not participate in these sort of marriages.

And the Supreme Court actually sided with them.

And I think it's interesting because there's this argument that, you know, it kind of forces people to fight for their, you know, ability to be excluded from these celebrations.

And I think something that's unspoken in this is that there's a flip side of that is that, otherwise, people would have to fight to be included or to be able to have these, you know, celebrations or unions and that sort of thing.

RICH MEAGHER: One other objection I wanted to bring up here that I've heard a lot is some opponents worry that the language, again, this is similar to the first ballot question, that the language is so open and permissive, particularly this idea that you mentioned, Caroline, right, of race, sex, and gender, that it opens up questions about trans marriages, right?

Marriages between trans people or involving trans people.

Jahd, have you heard that concern from opponents of this?

JAHD KHALIL: Yeah, definitely.

So, you know, the opponent that we spoke to for the Amending series also brought this up.

And as Caroline was saying that there was interesting, you know, kind of first time that sex and gender were separated, and you know, put as two distinct protected classes in the Constitution.

When I was speaking to people about this, it was interesting because this is kind of a more recent policy hurdle that people have to tackle, because there were protection.

Because I think a lot of times, policy makers were grouping sex and gender together.

And then there was a court case in 2020, I think.

Let me make sure that I get this right.

Yeah, 2020, that extended protections based on sex to sexual orientation and gender identity.

But then later on, the Supreme Court was deciding a few other cases or a couple other cases that had actually separated those.

So what this amendment does by putting them as two specific classes is it kind of removes the ambiguity about whether the intent was to only talk about sex or only talk about gender, and kind of catch everybody.

And also talking about the, you know, the courts having to figure things out.

And I think sort of the nuance of, you know, writing these things into the amendment, I think the legislature was trying to also, you know, provide some degree of the courts being able to interpret some of these things.

RICH MEAGHER: And so Caroline, from a kind of historical perspective, where do you see this question about trans rights fitting in to this longer history of marriage?

CAROLINE LEGROS: So I think, while we in 2026 would look at the question of interracial marriage as a, you know, long settled debate that I would imagine the majority of Virginians would feel very strong that there's a right and wrong answer to whether or not interracial marriage should be legal in the Commonwealth.

We have these new issues and new concepts that arise, and this is just what happens in a society, in a community.

These new sort of topics come in to maybe not conflict, but sort of push up against existing law.

And our government, our three branches of government, you know, I teach civics to middle school students, so you'll have to forgive the seventh grade, eighth grade primer coming out of me right now.

But our three branches of government are sort of working through these issues as the general public sort of has, you know, questions that sort of percolate up to the top.

So I do not make predictions, so I can't say where things will go, but I imagine that the questions about, you know, how marriages between two members of a trans couple will be seen.

I'm sure it will be subject to the same level of judicial review and legislative debate and even executive action that we've seen with any other topic in that this is how our government is meant to function.

We're meant to have courts and judges reviewing law, reviewing the Constitution, and making, you know, making their opinions known.

I think what most Virginians should realize about these amendments is that this is an example of one of the ways in which we as Virginians have incredible power to vote and to make our voices heard on that issue, depending on how you feel, because this trumps what a judge or Supreme Court justice might decide.

So it's a very powerful action to take.

RICH MEAGHER: Caroline Legros, Jahd Khalil, thank you so much.

Please join me in thanking my panel.

(attendees applauding) (light music)