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Gov. Youngkin says Virginia law protects same-sex marriage. But there's a defunct ban in the state constitution.

If the Supreme Court hypothetically overturns same-sex marriage, Virginia's defunct constitutional ban could become legal again.

NORFOLK, Va. — Virginia Gov. Glenn Youngkin is facing criticism from Democrats after saying same-sex marriage is legally protected in the state, despite a defunct ban in the state's constitution.

Youngkin made the comment on the CBS show "Face the Nation" Sunday morning when Correspondent Robert Costa asked about the Supreme Court's potential moves on same-sex marriage, in wake of the recent overturning of the abortion rights case Roe v. Wade.

"In Virginia, we actually do protect same-sex marriage in Virginia. That's the law in Virginia and therefore as Governor of Virginia, we protect same-sex marriage," Youngkin told Costa.

In a Twitter thread, Democratic U.S. Rep. Abigail Spanberger, who represents Virginia's 7th Congressional District, criticized Youngkin's remarks, saying he "either doesn’t know Virginia’s constitution or he’s lying & assuming we won’t notice."

She was referring to the now-defunct section of the Virginia Constitution that requires the state and localities to recognize marriage as "a union between one man and one woman." 

A federal court struck down both Virginia's statutory and constitutional bans in the 2014 Bostic v. Schaefer case, but the legal language is still part of the state's constitution. (Statutory laws are ones written by lawmakers as opposed to laws within the Virginia Constitution).

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Since the Supreme Court overturned abortion rights, political experts have speculated that the high court could revisit other landmark decisions, including Obergefell v. Hodges, the 2015 case that legalized same-sex marriage nationwide.

If the court decided to overturn Obergefell, there's a possibility Virginia's constitutional ban could become legal again, since Virginia's constitutional law is supreme over statutory law.

Youngkin's spokesperson Macaulay Porter said the governor was referring to Senate Bill 17 and House Bill 1490 in his "Face the Nation" interview. Those laws repealed statutory prohibitions on same-sex marriages and civil unions but didn't touch upon constitutional law.

"Same sex marriage is the law of the land in Virginia and as governor of Virginia, he will abide by and enforce the law," Porter told 13News Now.

But Spanberger believes a repeal of the defunct ban is needed because same-sex marriage rights have only been protected by court cases.

Last year, before Republicans retook control of the Virginia House, the General Assembly (which is comprised of both the House of Delegates and Senate) approved an amendment to remove the marriage ban, but it would have needed to pass both chambers -- twice -- before going to a public vote, the Washington Post reported.

A Virginia House subcommittee ultimately voted against the amendment on its second go-around back in February.

Spanberger argued that Democrats need to hold the Senate and retake the House in the 2023 General Assembly elections to restart the process of repealing the ban.

In that case, because the amendment process takes two years, the earliest the ban could be removed is 2026, according to a tweet from Virginia State Sen. Louise Lucas.

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Porter acknowledged the process for constitutional amendments in Virginia but didn't say if Youngkin would support or oppose a repeal of the defunct ban.

"The process for amending the Constitution is driven by the legislature and is outlined in Article XII of the Virginia Constitution," Porter said.

The Republican Party of Virginia pushed back on Spanberger's call for electing more Democrats in Virginia, accusing her and Lucas of politicizing the issue of same-sex marriage.

"Radical Democrat [Abigail Spanberger] and Career Politician [Louise Lucas] teaming up to try and convince voters that same sex marriage is under threat if you don’t hand them unlimited political power is one of the more desperate and ridiculous takes we’ve seen," the party tweeted.

In response to Youngkin's remarks, Equality Virginia Executive Director Narissa Rahaman sent 13News Now the following statement:

“Either Governor Youngkin hasn’t read the Virginia Constitution, or he is trying to pull a fast one on Virginians, including those in his own party, who support marriage equality. Thanks to Obergefell v. Hodges, marriage equality is the law of the land in all 50 states. But Virginia still has a constitutional amendment banning same-sex marriage. Any attempt to overturn the SCOTUS’ landmark 2015 ruling will have a devastating effect on LGBTQ+ couples who wish to marry and call Virginia home. 

If the Governor truly believes our Commonwealth protects the right for LGBTQ+ couples to marry, then we welcome him to work with his party to remove the stain that exists on our constitution. Until then, his opposition to codifying marriage equality is just a reminder that he is out of touch with the majority of independents and Republicans who support it.”

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