Just hours before leaving office, former Virginia Attorney General Ken Cuccinelli (R) issued an opinion that appears intended to entrench his own anti-gay policy preferences while he could still speak as his state’s top legal officer. Cuccinelli, who once claimed that the “homosexual agenda… brings nothing but self-destruction, not only physically but of their soul,” lost his bid for Virginia governor to recently inaugurated Gov. Terry McAuliffe (D).
Cuccinelli’s non-binding opinion, which is dated January 10, 2014, concludes that “a Governor may not direct or require any agency of state government to allow same-sex couples to receive joint marital status for Virginia income tax returns.” Cuccinelli’s successor, Democrat Mark Herring, was sworn in January 11.
The question of whether married same-sex couples may file joint Virginia tax forms hinges upon a potential conflict in state law. Although the state constitution includes an expansive ban on same-sex marriages or similar arrangements, gay rights advocates note that forbidding same-sex couples from filing jointly “is in conflict with the state law that requires conformity with federal rules” — married couples of all kinds file joint tax returns under federal law.
Additionally, the United States Constitution forbids Virginia from “deny[ing] to any person within its jurisdiction the equal protection of the laws,” and at least one federal judge has held that states cannot deny marriage equality to same-sex couples under the Fourteenth Amendment.
Gov. McAuliffe, who the voters of Virginia chose over Cuccinelli last November, campaigned on a pro-gay rights platform. His first action as governor was an executive order shielding LGBT state employees from employment discrimination.