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.
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