Did the federal court ruling that legalized same-sex marriage in Virginia also make bigamy legal?

Plain-English summary

Shortly after the Fourth Circuit struck down Virginia's same-sex marriage ban in Bostic v. Schaefer, Delegate Robert G. Marshall asked Attorney General Mark Herring a pointed question: if the right to marry is so broad that the Constitution protects same-sex couples, does that same logic require Virginia to recognize plural marriages? In other words, are Virginia's criminal bigamy statutes still good law?

Herring's answer was a clear no. The opinion separated two distinct constitutional questions. Bostic dealt with the right of two people to enter a monogamous marriage regardless of their genders. Bigamy is about one person entering more than one state-recognized marriage at the same time, which the U.S. Supreme Court has long held a state may prohibit (see Reynolds v. United States, 1878, which has never been overruled). The Fourth Circuit's repeated use of "couples" and "couplings" in Bostic, Herring noted, signaled the court was protecting partner choice within a two-person marriage, not the number of permissible partners.

The opinion also addressed a second question Delegate Marshall raised: do bisexual and transgender Virginians have the right to marry a partner of the same sex? Herring concluded they do. Bostic protects the right to marry whoever you choose, so long as the marriage is otherwise lawful, and that protection does not depend on the marrier's sexual orientation or gender identity.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Notably, Obergefell v. Hodges (2015) later nationalized the same-sex marriage holding, and the constitutional framework around fundamental rights and marriage has continued to evolve.

Common questions

Did the AG's office say bigamy was still a crime in Virginia after Bostic?

Yes. The opinion concluded that Va. Code §§ 18.2-362, 18.2-363, 20-38.1, 20-40, and 20-45.1, which together criminalize bigamy and void bigamous marriages, remained constitutional and enforceable.

Why did the AG reject the parallel between same-sex marriage and plural marriage?

Two reasons. First, Reynolds v. United States (1878) directly upheld a bigamy ban and has never been overturned; the Supreme Court has continued to cite it with approval. Second, Bostic itself talked about "couples" and "couplings," language Herring read as protecting partner choice within monogamy, not the number of spouses.

Did the opinion say bisexual or transgender Virginians have the same marriage rights as anyone else?

Yes. Herring wrote that bisexual and transgender Virginians, like all Virginians, have the right to marry the person they choose, so long as the marriage is otherwise lawful.

What about the Utah Brown v. Buhman case Delegate Marshall mentioned?

Marshall cited that decision because it had partially struck down Utah's bigamy law on cohabitation grounds. Herring pointed out that Brown v. Buhman actually upheld the part of the Utah statute that criminalizes formally marrying more than one spouse, which is the analogous provision to Virginia's law.

Background and statutory framework

Virginia's prohibition on bigamy traces back over 200 years. Today the prohibition lives in two pieces:

• Va. Code § 20-38.1 voids any marriage entered into before a prior marriage has been dissolved.
• Va. Code §§ 18.2-362 and 20-40 make bigamy a Class 4 felony or misdemeanor.

When Bostic v. Schaefer issued in 2014, the Fourth Circuit struck down Virginia's ban on same-sex marriage as a violation of the Fourteenth Amendment's Due Process and Equal Protection Clauses. The judgment specifically enjoined enforcement of marriage restrictions "if and to the extent" they denied same-sex couples the rights afforded opposite-sex couples. Herring read that injunction as scoped to the two-person marriage context only.

The opinion relied heavily on the principle that statutes enjoy a presumption of constitutionality and that the Supreme Court has expressly distinguished the fundamental right to marry the partner of one's choice from any claimed right to enter multiple state-sanctioned marriages.

Citations

• Va. Code Ann. § 2.2-505 (authority for AG advisory opinions)
• Va. Code Ann. §§ 18.2-362, 18.2-363, 20-38.1, 20-40, 20-45.1 (Virginia's bigamy statutes)
• Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014)
• Reynolds v. United States, 98 U.S. 145 (1878)
• Loving v. Virginia, 388 U.S. 1 (1967)
• Zablocki v. Redhail, 434 U.S. 374 (1978)
• Turner v. Safley, 482 U.S. 78 (1987)
• United States v. Windsor, 133 S. Ct. 2675 (2013)
• Brown v. Buhman, 947 F. Supp. 2d 1170 (D. Utah 2013)
• Potter v. Murray City, 760 F.2d 1065 (10th Cir. 1985)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2014/14-073_Marshall.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General

Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071

December 9, 2014

The Honorable Robert G. Marshall
Member, House of Delegates
Post Office Box 406
Richmond, Virginia 23218

Dear Delegate Marshall:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

Virginia law criminalizes bigamy and voids bigamous marriages. You ask whether these laws are facially unconstitutional in light of the Fourth Circuit Court of Appeals' decision in Bostic v. Schaefer. You also ask whether bisexual and transgender Virginians have the right to marry a partner of the same sex.

Response

It is my opinion that Virginia's laws voiding bigamous marriages and criminalizing bigamy are constitutional and that the Fourth Circuit's decision in Bostic v. Schaefer does not invalidate §§ 18.2-362, 18.2-363, 20-38.1, 20-40, and 20-45.1 of the Code of Virginia, which prohibit bigamy by all persons, regardless of sexual orientation or gender identity. I also conclude that bisexual and transgender Virginians, like all Virginians, have the right to marry the person they choose, so long as the marriage is otherwise lawful.

Applicable Law and Discussion

I. Virginia's Bigamy Laws

The Commonwealth of Virginia defines a bigamous marriage as "a marriage entered into prior to the dissolution of an earlier marriage of one of the parties." Virginia has a long history of prohibiting such unions. Virginia passed the first law expressly criminalizing marriage to more than one person over 200 years ago. Today, a marriage is automatically void in the Commonwealth if either party is already married to a living spouse. The Commonwealth also can charge an individual who commits bigamy with a Class 4 felony or misdemeanor pursuant to §§ 18.2-362 and 20-40 of the Code of Virginia. These statutes are presumed constitutional "unless [they] clearly violate a provision of the United States or Virginia Constitutions."

The United States Supreme Court has considered bigamy laws like Virginia's and found them to be constitutional. In Reynolds v. United States, the Court upheld a federal law making bigamy illegal in the territories of the United States. The Court found that "there cannot be a doubt that . . . it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion."

The Reynolds decision remains good law today. While the United States Supreme Court has struck down various state efforts to restrict monogamous marriage, it has never overturned its holding that a state may choose to outlaw polygamy. To the contrary, the Court regularly has cited Reynolds with approval, and lower federal and state courts continue to cite Reynolds in upholding state laws banning one person from entering into two state-recognized marriages.

Reynolds remains controlling even after the Fourth Circuit's recent decision in Bostic v. Schaefer. In Bostic, the court considered the Commonwealth's constitutional and statutory ban on marriage for same-sex couples. The Fourth Circuit found that, because the Commonwealth's ban on marriage for same-sex couples interfered with an individual's fundamental right to marry, the prohibition was subject to strict scrutiny. Because no compelling state interest supported the ban, it was held to be unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The judgment entered by the district court in Bostic, which the Fourth Circuit affirmed, affects only the rights of same-sex couples. The judgment struck down Virginia's marriage laws only "to the extent they deny the rights of marriage to same-sex couples or recognition of lawful marriages between same-sex couples that are validly entered into in other jurisdictions." The ruling further enjoins state and local officials from enforcing a Virginia marriage law only "if and to the extent that it denies to same-sex couples the rights and privileges of marriage that are afforded to opposite-sex couples." By its plain terms, then, the judgment in Bostic applies only to marriages between two persons. Bigamy entails a serial marriage process that ultimately encompasses more than two persons.

Moreover, nothing in the Fourth Circuit's Bostic opinion questions the authority of the Commonwealth to limit state-recognized marriages to monogamous relationships. Rather, the Fourth Circuit found that the right to monogamous marriage could not be limited to "opposite-sex couples." The court described civil marriage as "one of the cornerstones of our way of life," because it "allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships . . . ." The court worried that if it "limited the right to marry to certain couplings, [it] would effectively create a list of legally preferred spouses, rendering the choice of whom to marry a hollow choice indeed." The court's use of the word "couples" and "couplings" indicates that the court was concerned specifically with restrictions on the choice of partners within a monogamous-marriage regime.

In your request, you reference the District Court of Utah's decision in Brown v. Buhman. The relevant part of that lengthy decision expressly upheld the section of Utah's law that, like Virginia's law, criminalizes the state-sanctioned marriage of one person to more than one spouse.

The United States Supreme Court has described marriage as a "fundamental freedom" and "the most important relation in life." The fundamental right to marry "is of fundamental importance for all individuals." When describing this right, the Court describes marriage as between two individuals. And as Bostic now makes clear, the Constitution protects the right to a state-recognized marriage between two consenting and legally competent persons, regardless of gender. Because Bostic is distinguishable from the issue you present, because Reynolds remains good law, and in light of the presumption of constitutionality afforded to all enactments by the General Assembly, I conclude that the Commonwealth's laws criminalizing bigamy and voiding bigamous marriages are constitutional and enforceable.

II. Marriage of Bisexual and Transgender Individuals

The Commonwealth does not now, and never has, prevented bisexual and transgender Virginians from marrying. Beginning in 1975, however, Virginia explicitly prohibited any person from marrying another person of the same sex in the Commonwealth. Until Virginia's ban on marriages between same-sex couples was overturned in Bostic, all Virginians, including bisexual and transgender Virginians, could marry only a spouse of the opposite sex.

As noted above, Bostic invalidated that ban under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Fourth Circuit characterized the right to marriage as "a broad right . . . that is not circumscribed based on the characteristics of individuals seeking to exercise that right." Accordingly, individuals' right to marry is not limited by their own sexual orientation or gender identity, or by that of the person they marry. Like all Virginians, bisexual and transgender individuals have a fundamental constitutional right to marry the person they choose, so long as the marriage is otherwise lawful.

Conclusion

Accordingly, it is my opinion that Virginia's laws voiding bigamous marriages and criminalizing bigamy are constitutional and that the Fourth Circuit's decision in Bostic v. Schaefer does not invalidate §§ 18.2-362, 18.2-363, 20-38.1, 20-40, and 20-45.1 of the Code of Virginia, which prohibit bigamy by all persons, regardless of sexual orientation or gender identity. I also conclude that bisexual and transgender Virginians, like all Virginians, have the right to marry the person they choose, so long as the marriage is otherwise lawful.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General