By Michael Hevener
Same-sex marriage is already recognized in Virginia. Question 2 asks voters to do something different: replace Virginia’s existing marriage provision with a new affirmative constitutional protection containing the undefined term “gender.”
Question 2 can easily be presented as a referendum on same-sex marriage.
But that does not tell voters the whole story.
Same-sex marriage is already legally recognized in Virginia.
Virginia’s Constitution still contains the one-man, one-woman language approved by voters in 2006, but that language can no longer operate to prohibit same-sex marriage under controlling federal constitutional law.
Question 2 would remove it.
But Question 2 would not simply delete the old language.
It would remove both the one-man, one-woman marriage restriction and the Constitution’s separate bans on government recognition of marriage-like legal statuses for unmarried relationships and other unions or partnerships carrying marriage-like rights, benefits, obligations, qualities, or effects. In their place, it would establish a constitutional right to marry for two adults regardless of sex, gender, or race. See the full proposed text of Question 2.
The General Assembly’s official description calls the proposal an “affirmative right to marry.”
That distinction should be the beginning of Virginia’s debate.
WHAT THE AMENDMENT SAYS
Question 2 would rewrite Article I, §15-A of the Virginia Constitution.
The proposed amendment declares marriage one of the vital personal rights essential to the orderly pursuit of happiness.
The amendment bars the Commonwealth and its political subdivisions from denying a marriage license to two adults seeking a lawful marriage because of their sex, gender, or race.
Virginia would also be constitutionally required to recognize lawful marriages between two adult persons and treat those marriages equally under the law regardless of sex, gender or race.
The text is expressly limited to lawful marriages involving two adult persons.
But the amendment would do something much more significant than change a marriage statute.
These words would become part of Virginia’s Bill of Rights.
If approved by voters on November 3, 2026, the amendment would take effect January 1, 2027.
WHAT VIRGINIA LAW SAYS TODAY
Virginia’s Constitution currently contains language stating that only a union between one man and one woman may constitute a marriage valid or recognized by the Commonwealth.
That prohibition is no longer enforceable against same-sex couples under controlling federal constitutional law.
Virginia statutory law has also moved beyond the language remaining in the Constitution.
Virginia Code §20-13.2 already bars denying a marriage license because of sex, gender, or race and requires recognition of those lawful marriages. Question 2 would place a similar guarantee in the Constitution.
And Virginia’s marriage statute contains another important protection:
Religious organizations and members of the clergy acting in their religious capacity have the right to refuse to perform any marriage.
Virginia therefore already has legal recognition of same-sex marriage.
It already has statutory protection against marriage discrimination based on sex, gender or race.
And it already has an explicit statutory protection for religious organizations and clergy.
Question 2 asks what should now be elevated into Virginia’s Constitution.
THE CASE FOR QUESTION 2
Supporters have a straightforward argument.
Virginia’s Constitution should not continue containing an unenforceable prohibition against same-sex marriage.
If same-sex couples possess the legal right to marry, supporters argue that Virginia’s Constitution should reflect that reality rather than preserve language government cannot currently enforce.
There is also a more consequential argument for constitutional action.
Virginia’s old one-man, one-woman provision remains written into the Constitution even though controlling federal constitutional law prevents its enforcement.
If the federal constitutional precedent protecting same-sex marriage were ever overturned or substantially changed, supporters argue that Virginia should not risk having its old constitutional prohibition regain legal significance.
They want Virginia’s own Constitution to protect marriage equality independently.
Supporters can also point out that “sex, gender, or race” is not being introduced into Virginia marriage law for the first time.
Those words already appear in Virginia’s marriage statute.
Question 2 would elevate that existing equality principle from ordinary law into the Constitution.
That provides another argument for supporters.
Statutes can be changed by future General Assemblies.
Constitutional protections are much more difficult to change.
If Virginians believe two adults should have a permanently protected right to marry regardless of sex, gender or race, supporters argue that protection belongs in the Constitution.
For supporters, Question 2 removes obsolete language, protects marriage equality under Virginia’s own Constitution and gives that protection constitutional permanence.
That is the strongest case for voting Yes.
THE CASE AGAINST QUESTION 2
Opponents can agree that obsolete constitutional language should be removed without agreeing that this particular language should replace it.
That distinction is crucial.
Question 2 does not simply ask: Should Virginia delete the 2006 prohibition?
It asks voters to constitutionalize new language.
And constitutions are different from statutes.
Once language enters the Bill of Rights, Virginia laws and governmental actions are subject to that constitutional provision, and courts may ultimately be asked to determine its scope.
That makes precision extraordinarily important.
WHAT DOES “GENDER” MEAN?
Question 2 repeatedly uses: “sex, gender, or race.”
But the amendment itself does not define “gender.”
Virginia law already uses both “sex or gender” and the separately defined term “gender identity.”
Virginia lawmakers therefore have experience using both terms.
Question 2 does not say “gender identity.”
It says “gender.”
And it places “gender” separately alongside “sex.”
So what does “gender” mean in this particular constitutional provision?
If gender simply means sex, why are both words necessary?
If it is intended to include gender identity, why doesn’t the constitutional amendment say “gender identity”?
And if gender encompasses something broader, what exactly are Virginia voters being asked to protect constitutionally?
Those are not questions about whether transgender Virginians should be treated with dignity.
They are questions about constitutional drafting.
A constitution should tell citizens as clearly as possible what right they are being asked to establish.
“SEX” AND “GENDER” IN THE BILL OF RIGHTS
Virginia’s existing general nondiscrimination provision is Article I, §11.
It protects against governmental discrimination based upon: religious conviction, race, color, sex or national origin.
It does not list “gender.”
It also expressly provides that the mere separation of the sexes shall not be considered discrimination.
Question 2 does not repeal §11.
It does not amend §11.
But Question 2 would expressly place “gender” alongside “sex” in another provision of Virginia’s Bill of Rights.
That is a factual change voters should understand.
What we cannot say with certainty is that the Constitution would thereby establish “gender” and “sex” as two legally distinct constitutional concepts.
That is precisely one of the interpretive questions the amendment leaves unanswered.
COULD THIS LANGUAGE BE CITED IN FUTURE CONSTITUTIONAL CASES?
Potentially.
Imagine a future lawsuit involving a Virginia law that distinguishes on the basis of sex.
An attorney could point to the Constitution and argue:
Article I, §11 uses “sex.”
The newer Article I, §15-A uses both “sex” and “gender.”
Therefore, the additional word should be given some independent meaning.
Would a Virginia court accept that argument?
We do not know.
A court could determine that §15-A’s terminology applies only within the marriage context.
A court could consider the wording relevant when interpreting another constitutional provision.
Or a court could reject an attempted extension beyond marriage.
Question 2 itself does not answer that question.
That illustrates the larger concern with undefined constitutional language.
Once an amendment is ratified, its ultimate interpretation does not belong exclusively to the legislators who drafted it.
Courts may eventually be asked to determine what those words mean.
TWO CONSTITUTIONAL RIGHTS: WHAT HAPPENS WHEN THEY COME INTO TENSION?
Marriage is not the only right implicated in this debate.
Religious liberty already occupies constitutional ground.
Article I, §16 of the Virginia Constitution provides substantial protection for religious conscience and the free exercise of religion.
The First Amendment to the United States Constitution provides another layer of protection.
Question 2 would place the General Assembly’s described “affirmative right to marry” into the same Virginia Bill of Rights.
That does not mean the two rights automatically conflict.
In most circumstances they may coexist without difficulty.
But difficult cases can arise when one person’s exercise of a protected right comes into tension with another person’s constitutional rights or with an antidiscrimination law.
When that happens, courts may be required to determine the boundaries of the competing legal interests.
Question 2 does not tell voters how every such dispute should be resolved.
WILL PASTORS BE FORCED TO PERFORM SAME-SEX WEDDINGS?
Based on current law, no.
That distinction matters.
Virginia’s existing marriage statute expressly protects religious organizations and members of the clergy acting in their religious capacity by giving them the right to refuse to perform any marriage.
Virginia’s Constitution independently protects religious exercise.
The First Amendment provides additional federal constitutional protection.
Question 2 itself is directed at the Commonwealth and its political subdivisions. It does not command churches or pastors to solemnize marriages contrary to their beliefs.
The Commonwealth Ledger therefore will not tell voters that passage of Question 2 means their pastor will be forced to perform a same-sex wedding.
The current law does not support that claim.
But that does not end the religious-liberty discussion.
WHAT ABOUT THE RELIGIOUS BUSINESS OWNER?
The more difficult cases have involved people operating businesses in the public marketplace.
Consider: a Christian wedding photographer, a baker asked to create a custom wedding cake, a graphic designer asked to create a wedding website, a florist providing wedding arrangements, or a wedding planner.
These people may operate businesses open to the public while also believing that participating creatively in a same-sex wedding violates their religious convictions.
That conflict is not hypothetical.
Similar disputes have already reached the United States Supreme Court.
MASTERPIECE CAKESHOP
Colorado baker Jack Phillips declined to create a wedding cake for a same-sex wedding because of his religious beliefs.
Colorado pursued the matter under its public-accommodation law.
The Supreme Court ultimately ruled in Phillips’ favor because the state had failed to treat his religious beliefs with the neutrality required by the Free Exercise Clause.
But the Court did not establish a blanket rule allowing every religious business owner to refuse every service associated with a same-sex wedding.
The decision demonstrated something else:
The collision between antidiscrimination law and religious conscience can produce serious constitutional disputes.
303 CREATIVE
The Supreme Court confronted another aspect of the issue in 303 Creative LLC v. Elenis.
A Christian website designer objected to being compelled to create expressive wedding websites communicating messages inconsistent with her beliefs about marriage.
The Supreme Court ruled 6-3 that Colorado could not use its public-accommodation law to compel her to create speech she did not believe.
That case rested importantly on the First Amendment’s protection against compelled speech.
It did not create a universal religious exemption for every commercial transaction.
A restaurant refusing to serve a same-sex couple simply because they are gay presents a substantially different legal question from an artist being required to create expressive material celebrating a wedding.
That distinction matters.
But so does the larger lesson.
Disputes involving marriage, religious conscience, expressive businesses and antidiscrimination laws have already occurred.
They are not imaginary future scenarios.
WHAT DOES QUESTION 2 CHANGE FOR BUSINESSES?
Question 2 does not say: “Every private business must participate in every lawful marriage.”
It does not directly command a photographer, baker, florist or designer to provide wedding services.
Virginia already has public-accommodation laws prohibiting certain forms of discrimination, including discrimination based on sexual orientation and gender identity.
Those laws already operate alongside federal and state constitutional protections.
Question 2 would add something different: an affirmative constitutional marriage protection directed at the Commonwealth and its political subdivisions.
What effect, if any, that new constitutional provision could have in a future dispute involving religious conscience, expressive activity and marriage would depend upon the particular facts, laws involved and constitutional arguments presented.
Anyone claiming to know exactly how every future case would be decided is claiming more than the amendment tells us.
THE RELIGIOUS-LIBERTY PROTECTION THAT ISN’T THERE
This is where the drafting history becomes particularly important.
Virginia’s current marriage statute expressly protects religious organizations and clergy.
But Virginia has gone even further before.
An earlier proposed constitutional marriage amendment expressly included a religious-liberty provision protecting religious organizations and clergy acting in their religious capacity from being required to perform marriages.
That protection is not contained in Question 2.
Virginia is also not without an example from another state.
Nevada’s Constitution recognizes marriages between couples regardless of gender. It also gives religious organizations and clergy the right to refuse to solemnize any marriage and bars claims against them for that refusal.
In other words:
Marriage protection was constitutionalized.
Religious protection was constitutionalized.
Both were written down.
Virginia could have followed that approach.
Indeed, Virginia previously proposed doing something similar.
Question 2 does not.
WHY LEAVE IT OUT?
That produces one of the most important questions opponents can ask about Question 2:
If Virginia is going to constitutionalize a new affirmative marriage protection, why doesn’t the amendment expressly state that nothing in the new provision shall diminish the religious-liberty protections already guaranteed by Article I, §16?
Supporters have a legitimate answer.
Religious liberty is already protected by the Virginia Constitution and the United States Constitution.
Therefore, they may argue, repeating those protections in §15-A is unnecessary.
But opponents have a legitimate response.
If both rights are important, why not say explicitly that both remain protected?
Doing so could provide greater clarity before litigation rather than asking future courts to resolve uncertainty afterward.
And Virginia has already demonstrated that such language can be written.
WHAT QUESTION 2 DOES NOT DO
Precision works both ways.
Question 2 does not itself abolish sex-separated bathrooms, locker rooms or athletics.
It does not itself establish rules governing transgender participation in sports.
It does not expressly require a pastor or church to perform a marriage contrary to religious belief.
It does not authorize plural marriage.
Its text concerns lawful marriage between two adult persons.
And it does not automatically strip religious business owners of their First Amendment rights.
Opposition to Question 2 should therefore be based upon what the amendment actually says and the reasonable constitutional questions its language creates.
The Commonwealth Ledger will not make arguments the text cannot support.
BROAD WORDS HAVE LONG CONSEQUENCES
Constitutions necessarily contain broad principles.
But constitutional language carries extraordinary consequences precisely because it is difficult to change.
Question 2 leaves “gender” undefined in the amendment itself.
It does not explain why both “sex” and “gender” are necessary.
It does not expressly explain how the new affirmative marriage protection should interact with existing religious-liberty protections when those interests come into tension.
And it does not include an explicit religious-liberty provision of the kind Virginia included in earlier proposed constitutional marriage language and that another state has placed alongside its constitutional marriage protection.
Some of those questions may never produce significant litigation.
Others might.
No one can responsibly tell voters today exactly how every future Virginia court will interpret these provisions.
That uncertainty is itself something voters are entitled to consider.
The harder language is to change, the more carefully it should be written before it is adopted.
THE REAL CHOICE BEFORE VIRGINIA
Question 2 should not be reduced to: “Do you support same-sex marriage?”
Same-sex marriage is already recognized in Virginia.
The real questions are more complicated.
Should Virginia remove the obsolete 2006 marriage provision?
Should Virginia replace it with an affirmative constitutional marriage protection?
What does the undefined word “gender” mean in the amendment?
Why does the amendment use both “sex” and “gender”?
Could that terminology become relevant in future constitutional litigation?
How should the new marriage protection coexist with Virginia’s existing constitutional protection of religious conscience?
And why does Question 2 omit an explicit religious-liberty protection when Virginia previously proposed one?
Those are legitimate constitutional questions.
A voter can support removing the old one-man, one-woman language.
A voter can support the legal recognition of same-sex marriage.
A voter can believe gay and transgender Virginians should be treated with dignity and equality before the law.
And that voter can still conclude that this particular amendment contains unanswered questions that should have been resolved before its language was placed permanently into Virginia’s Constitution.
THE COMMONWEALTH LEDGER’S VIEW
The Commonwealth Ledger believes obsolete constitutional language should not remain simply because voters approved it twenty years ago.
But removing old language and approving new language are two different decisions.
Question 2 establishes what the General Assembly officially describes as an “affirmative right to marry.”
It expressly places “gender” alongside “sex” without defining “gender” in the amendment or explaining the intended relationship between the two terms.
It leaves unanswered whether that terminology could someday influence constitutional interpretation beyond the immediate marriage provision.
And while religious liberty remains strongly protected under existing Virginia and federal constitutional law, Question 2 does not expressly address how the newly created marriage protection should interact with religious conscience when genuine conflicts arise.
That concern should not be exaggerated.
Pastors are not suddenly going to lose the First Amendment.
Churches do not become agents of the Commonwealth simply because Question 2 passes.
And religious business owners do not lose their constitutional protections.
But difficult religious-liberty and compelled-speech cases involving same-sex weddings have already reached the United States Supreme Court.
Virginia therefore cannot reasonably pretend that the potential tension among marriage rights, antidiscrimination laws, religious exercise and compelled expression is imaginary.
Virginia could have addressed at least part of that tension explicitly.
Other constitutional language has done so.
Virginia itself previously proposed doing so.
Question 2 does not.
Constitutional language should be clear enough that voters understand the rights they are creating before they create them.
If “gender” is intended to mean the same thing as sex in this provision, Virginians deserve to know why both words are necessary.
If it is intended to encompass gender identity, the amendment could have said so expressly.
If it carries some broader meaning, voters deserve to understand what that broader constitutional protection means.
And if Virginia intends the new marriage protection and existing religious-liberty protections to coexist without diminishing either, the Commonwealth could have said so explicitly.
The Commonwealth Ledger believes those questions should have been answered before the amendment reached the ballot.
THE COMMONWEALTH LEDGER RECOMMENDS
VOTE NO ON QUESTION 2
Removing obsolete language is one decision.
Replacing it with undefined constitutional terminology and leaving important constitutional questions for future courts is another.
Virginia should demand clarity before permanently changing its Bill of Rights.
Sources and Further Reading: Virginia Department of Elections, Question 2 and full proposed text; 2026 HJ3, including the proposal’s effective-date provision; Virginia Code §20-13.2; Virginia Code §2.2-3904; Virginia HJ 582 (2021); Virginia Constitution, Article I, §11; Virginia Constitution, Article I, §16; Nevada Constitution, Article 1, §21; Obergefell v. Hodges; Masterpiece Cakeshop v. Colorado Civil Rights Commission; 303 Creative LLC v. Elenis.
