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UPDATED: Marriage, mineral rights, mayoral election subjects of AG opinions left off web

Rosalind Helderman

Marriages that take place outside of Virginia are not valid in the Commonwealth, even if the couple has obtained a legal Virginia marriage license and the ceremony is performed by a person authorized to do so in Virginia.

That's according to a legal opinion issued by Attorney General Ken Cuccinelli (R) in May in response to a question from the clerk of the Prince William County court regarding a couple whose marriage ceremony took place in Bethesda.

The opinion is one of six Cuccinelli has issued since May 6, the last time his office posted one of the public documents online. The attorney general's office in recent years has generally provided quick online access to the opinions, written in response to requests from legislators and other state and local officials. The office's Web site indicates that the general practice is put opinions on the Internet within 24 to 48 hours after they are issued.

Cuccinelli spokesman Brian Gottstein said an employee charged with putting the opinions online recently left the office, creating a backlog of opinions not publicized through the Web site. He said the employee has been replaced and the process will improve soon. He provided the six opinions currently missing from the Web site upon request.

They include a May opinion in which Cuccinelli said he could not declare Virginia's law regarding the opening date for school systems to be unconstitutional.

The opinion follows a longstanding debate in Virginia over the start date for local schools. State law has long held that schools cannot open before Labor Day, a law known informally in Richmond as the King's Dominion Law because the amusement park and other tourist spots support giving families additional August travel before school starts. Del. Bob Tata asked Cuccinelli to weigh in on the law's constitutionality, given that the Virginia constitution gives local school districts the authority to supervise schools.

Cuccinelli responded that he could not declare the law unconstitutional, noting the office's longstanding practice of withholding such findings except in cases where laws are "without a reasonable doubt" unconstitutional.

In the case of the marriage decision, Cuccinelli noted Virginia couples who wish to get married out of state have a variety of options at their disposal, including having a separate, brief, solemnization ceremony in Virginia in addition to an out-of-state event.

An additional clarification on this marriage opinion--the decision relates only to couples who seek Virginia marriage licenses and then want to hold their ceremonies out-of-state. It changes nothing for couples who get licenses in other states and then move to Virginia. The marriages of couples who hold valid out-of-state licenses will continue to be recognized by Virginia. (Although Virginia's constitution bars recognition of same-sex marriages performed in those states where they are legal.)

Another of the opinions issued since May instructs that the City of Portsmouth's charter should govern the city's upcoming election following the recall of its mayor. An additional opinion says local governments can allow payday lenders to qualify for "special exception" or "special use" permits under local zoning ordinances.

One issued June 25 declared that Virginia's Gas and Oil board has no additional authority to resolve disputes where ownership of natural gas royalties are in dispute despite a rewrite this year of the law governing such cases. The natural gas royalty issue was the subject of a series of stories this year in the Bristol Herald Courier that won the Pulitzer Prize for Public Service journalism.

A final Cuccinelli opinion found that Virginia law prohibits simultaneously passing two cars that are traveling down the road side-by-side.

UPDATE 7:43 p.m.: It appears this item has kicked up a bit of a storm over rules for marriage licenses in Virginia. We've received the following statement from Cuccinelli spokesman Brian Gottstein, essentially emphasizing that Cuccinelli's May decision confirmed existing law and has long been the guidance provided the Virginia Department of Health on its website. According to Gottstein:

This was a request for a legal opinion about state law. The attorney general addressed the law as it currently stands in Virginia, as enacted by the General Assembly.

The law states that if you obtain a marriage license in Virginia, a marriage ceremony must also be performed in Virginia for it to be legally valid in the commonwealth. For couples who wish to get married in other states even though they obtained their licenses in Virginia, the law allows that as long as they also have a marriage ceremony here in Virginia, however brief, conducted by a minister or other person authorized by law to do so.

This requirement is not new. See the Virginia Department of Health web site here: http://www.vdh.state.va.us/vital_records/marry.htm, where it states under "Marriage Requirements" that "The marriage license issued in Virginia is for marriages to be performed in Virginia ONLY," (VDH's emphasis) and, "Marriages performed outside of Virginia are filed in the state or country in which the marriage was performed. You must contact the state or country you were married in to obtain a copy of the marriage record."

By Rosalind Helderman  |  July 8, 2010; 2:55 PM ET
Categories:  Ken Cuccinelli , Rosalind Helderman  
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Comments

Cuccinelli is wrong. And a federal lawsuit will quickly put an end to his stunts.

Posted by: anarcho-liberal-tarian | July 8, 2010 3:45 PM | Report abuse

For all Virginians who voted against Marriage Equality in 2006 and voted FOR McDonnel et al in 2009... THIS is your just-desserts! Feel free to ask for seconds, there's plenty to go around.

Posted by: trambusto | July 8, 2010 4:22 PM | Report abuse

Excuse me, Ms. Helderman?

Doesn't the Opininon actually say that if you have a Virginia marriage license (and/or have asked someone authorized only by the Commonwealth of Virginia to officiate), it generally isn't a legal marriage unless you are actually in the Commonwealth for the ceremony?

It seems to be pretty plain language in the "Conclusion" paragraph but the Washington Post strikes again with their belief that you shouldn't let the facts get in the way of a good headline (or story).

And doesn't that make sense? I can't get a Virginia learner's permit and go to Maryland to take my Driver's Test and then be issued a Virginia license. A Virginia fishing license isn't going to help you in Maryland. Why would a Virginia marriage license be valid outside of Virginia?

And in your comment about the "variety of options" you neglected to mention what may be the most important part of the footnote that mentioned solemnizing the marriage in Virginia: "or by otherwise ensuring that the marriage is valid under the law of the marriage site." If you are married in Maryland under Maryland law, and meet the Maryland requirements, your marriage is valid in Virginia.

How about trying to actually understand what you're writing about?

Posted by: IndolentCin | July 8, 2010 4:46 PM | Report abuse

At one time, marriage laws were justified on the basis of protecting children. These days, more than half all children born to women under 30 have unmarried parents, and we've developed laws that protect them. Consequently, I think government recognition of the religious ritual of marriage is a violation of Amendment I.

And I don't think Mr. Cuccinelli has thought through the consequences of his opinion. Insurance companies demanding refunds of claims by non-spouses, or for men's children. The IRS auditing all the joint tax returns for the state for the last three years, demanding extra taxes unless you prove you were married in Virginia.

It used to be Republicans who complained that Democrats were abusing the US Constitution. Where have all these people come from, the ones who've hijacked the GOP out from under me?

Posted by: HarlDelos | July 8, 2010 4:52 PM | Report abuse

Did anyone actually bother to read the Opinions?

Posted by: IndolentCin | July 8, 2010 5:12 PM | Report abuse

I'm not a Cooch fan at all, but I really must wonder at the intelligence and/or veracity of Ms Helderman after actually reading the fact behind the opinion. The key to the marriage decision is that it was a Virginia license and a Virginia officiant, but the wedding took place in Maryland - the huge part of the issue that Ms Halerman just can't be bothered to inform her readers. Gotta wonder why the misrepresentation.

The hits just keep on coming at the Washington Post, don't they?

Posted by: hohandy | July 8, 2010 5:46 PM | Report abuse

Wow, this bit of non news got 2 blog pots in the WaPo today! And was totally written to get people in an uproar. As far as I know you have to get a marriage license in the state in which you are having your wedding ceremony. So, these people should have gotten a MD license not a VA license. Pretty simple.

Posted by: Vienna8425 | July 8, 2010 7:45 PM | Report abuse

Wow... what poor bit of reporting from the Post! My wife and I just spent a hour fretting about what to do with our joint income tax return for last year if VA really doesn't consider us "married", and my wife wondered what impacts this would have on her Benefits job.

Actually reading the opinon, its clear that this whole case is based on a VIRGINIA marriage license, which isn't clear in the reporting - simply saying if you were married outside VA, VA may not consider you married leaves a pretty important fact out. No wonder teh "storm" it generated! Saying "even if the couple has obtained a legal Virginia marriage license..." makes the license seem like an afterthought, NOT the real subject of the story.

Come on Post...you can do better!

Posted by: DaveB2 | July 8, 2010 8:43 PM | Report abuse

Helderman should be fired for her blatant attempt to smear Ken Cuccinelli without performing ANY research whatsoever. This is an excellent example of the Post's anti-Republican bias -- and of Helderman's own deficiencies as a reporter, much less an objective and fair reporter.

Posted by: WashingtonDame | July 8, 2010 9:32 PM | Report abuse

Not a coocoo fan by any stretch of the imagination, but if I'm reading this correctly, he's basically said if you applied for a VA marriage license, in order for it to be a valid VA marriage license it has to be performed in the state of VA by someone authorized to perform marriages in the state of VA.

If you don't like it, you can either apply for a marriage license wherever your ceremony is, OR have a small quick ceremony in VA with someone who's allowed to do one.

If that understanding is correct, where's the problem? Like a different poster said, licensing is licensing. A VA license can only become valid in VA. You don't take a driver's license test for VA in MD, do you?

Posted by: hobbes9 | July 8, 2010 11:44 PM | Report abuse

Indolentcin raises a critical point here: it makes no sense to respond to this blog if you haven't bothered to read the material it's based on.

I'm not a lawyer, but from my reading, Cuccinelli's answer rests on his interpretation of a single word, "heretofore", which he feels (apparently with legally-backed reason) limits the scope of a 1952 Assembly act. That act seems to have retroactively approved all marriages conducted outside the Commonwealth but with all the other necessary Virginia rules and participants in compliance. Implicitly, however, it doesn't do so for subsequent marriages. Even so, more research into the rationale for this act could provide the couple asking about this some grounds for futher action.

I suspect the reason this very specific question for a slightly-unusual situation motivated Helderman's to lead her blog entry with it, is yesterday's Federal-Court ruling that the Defense of Marriage Act (DOMA) is unconstitutional, apparently compromising the efforts of same-sex-marriage opponents (like Cuccinelli?).

But that's a whole 'nuther kettle of fish, involving the Full Faith and Credit Clause of the U.S. Constitution, which requires states to accept most of the "acts, records, and judicial proceedings" of other states. It's an issue every bit as complicated as one might expect. If this was Helderman's reason for pointing out the Virginia law, she's done both the Prince William couple and the DOMA/FF&CC controversy a great disservice.

On the other, what do we expect from a blog? If we want something other than talking points to shout at each other about, we should be reading full-blown, well-researched articles, not blogs. ;-)

Posted by: jeffq | July 9, 2010 3:01 AM | Report abuse

Wow, this bit of non news got 2 blog pots in the WaPo today! And was totally written to get people in an uproar. As far as I know you have to get a marriage license in the state in which you are having your wedding ceremony. So, these people should have gotten a MD license not a VA license. Pretty simple.

Posted by: Vienna8425 | July 8, 2010 7:45 PM

==============

The requirements vary state to state. You can obtain a license in TN and get married in another State. All TN requires is the marriage is reported back to the county where the license was issued. There are some other states that do this as well, but with one cup of coffee TN is the one that comes to mind.

This ruling only applies to marriages where the license was obtained in VA and the marriage performed in another state.

Worst case these people will have to obtain another marriage license and be married again if their first marriage license has expired.

It seems unlikely that this is the first time that's happened since the law was written. If other counties in Virginia have recorded marriages taken in other states as valid are they valid? His ruling says no, but if the couple has been before the law recognized as married for the last 10 years, for example, would their children be illegitimate?

That would be cool.

Posted by: James10 | July 9, 2010 7:14 AM | Report abuse

Read carefully: "In the case of the marriage decision, Cuccinelli noted Virginia couples who wish to get married out of state have a variety of options at their disposal, including having a separate, brief, solemnization ceremony in Virginia in addition to an out-of-state event."

A solemnization ceremony -- isn't that the same as a CIVIL marriage ceremony performed by a justice of the peace in his/her office? Isn't that what marriage really is, a CIVIL UNION?

So, in essence, this opinion (or non-opinion) is opening the door very wide to stating that marriage is really a civil union, and that the religious aspect is, as it were, icing on the cake.

Posted by: luv2bikva | July 9, 2010 8:21 AM | Report abuse

Oh, Rosalind, you have got them in a blather over your choice of words. You wrote, "Marriages that take place outside of Virginia are not valid in the Commonwealth, even if the couple has obtained a legal Virginia marriage license and the ceremony is performed by a person authorized to do so in Virginia." Instead of "even if" the right choice is "when."

I think what you were trying to convey with your choice of words is the violation of common sense: A ceremony in one place the state says is valid but the state says *the exact same ceremony* in another place is not valid.

This fifty states, fifty laws thing may seem like a little thing here with one couple not legally married despite trying to comply with the law but fifty states, fifty laws makes life difficult in many, many situations. Worlwide, hundreds of countries, hundreds of laws makes life difficult.

To change it to something with more common sense takes tremendous, time-consuming, costly concerted action in many states (countries) to establish a common system - e.g., in commercial law, worldwide postal service, worldwide telecommunications.

To just give one example I personally encountered: Can an old woman thrown to the floor of a bus get compensation for her injuries? The answer might depend on the side of the street the bus was on. In Bristol the main street straddles the line between Virginia and Tennessee. The statute of limitations in Virginia and the statute of limitations in Tennessee are not the same. Against common sense, whether she was entitled to compensation might depend on the side of the street the bus was on.

Posted by: cmckeonjr | July 9, 2010 9:24 AM | Report abuse

You have to READ the ruling. What he's saying is correct. You can't get a marriage license in Virginia and then get married in Maryland -- you have to get a marriage license from the state where the wedding ceremony takes place, not where you live. If you get married in the Bahamas, for example, your marriage license is from the Bahamas. If you get married in DC, your marriage license is from DC. This is HORRIBLE reporting from someone who doesn't understand what they're reading.

Posted by: rjd2123 | July 9, 2010 9:35 AM | Report abuse

From Ms. Helderman (or at least The Post): "UPDATE 7:43 p.m.: It appears this item has kicked up a bit of a storm over rules for marriage licenses in Virginia."

Perhaps it "kicked up a bit of a storm" because what was written was completely misleading? Perhaps a "bit of a storm" should have been "kicked up" over Ms. Helderman's journalism practices. Oh, wait. This is just a blog, isn't it? Anyone with a computer can blog. Although I would have thought that The Washington Post would take some effort to make sure that blogs under its name would have some semblance of accuracy and impartiality. But then, again, I still believe in Santa Claus and the Easter Bunny.

Posted by: IndolentCin | July 9, 2010 9:40 AM | Report abuse

Where is the outrage about the rules in Maryland? In Maryland your license is only valid in the country/city where it was issued. If you get you license in PG country and get married in Montgomery country it ain't valid. VA's rules actually seem to be the most, dare I say liberal, in the region.

Posted by: crete | July 9, 2010 10:03 AM | Report abuse

Ug. Just wait the 10 years and you can't avoid being married anyway...

Posted by: thatGuyinSW | July 9, 2010 10:30 AM | Report abuse

Let's look at the situation that the opinion actually deals with.

1. A & B are residents of Virginia.
2. A & B Obtain a marriage license in Virginia.
3. A & B get Rev. C, a Virginia minister, to perform their marriage.
4. A & B exchange their vows IN BETHESDA, MARYLAND.

The problem here is that the couple didn't have a valid marriage license in Maryland, and that Virginia cannot license a marriage performed in Maryland. Is the marriage in question therefore legally invalid in Virginia (and, presumably, every other state)? Sure it is -- and I fail to see where there is even a question or controversy regarding this common sense ruling.

Posted by: RhymesWithRight | July 9, 2010 10:44 AM | Report abuse

Boy, I passed this on before reading the comments or the opinion, and I am very angry! The first sentence of the article states, "Marriages that take place outside of Virginia are not valid in the Commonwealth..." This is not at all what the opinion says. It says that you can't obtain a marriage license in Virginia and then have the marriage performed in another state. Well, duh. I thought everyone knew you needed a license in the jurisdiction in which you got married!

Posted by: DCLiz | July 9, 2010 10:58 AM | Report abuse

There's sloppy reporting, and then there is criminally sloppy reporting.

This post falls in the latter category.

Posted by: thebump | July 9, 2010 11:31 AM | Report abuse

DCLiz - The point of fact is that the Cooch is wrong in his legal opinion. A license and VA officiant make it legal whereever it happens.

Posted by: anarcho-liberal-tarian | July 9, 2010 12:17 PM | Report abuse

This is an embarrassing bit of journalism here. The story does not even remotely take into account the facts of the case in question.

As stated already in the comments section - the key issue here is whether Virginia law as currently written - allows a valid marriage performed with a Virginia marriage license and a Virginia licensed officiant outside of the borders of the Commonwealth.

It seems to be common sense that you must receive a marriage license from the jurisdiction in which you are being married.

If I am to be wed in Maryland or DC, why would Virginia issue me the marriage license for that event?

Posted by: Fairfax2 | July 9, 2010 12:46 PM | Report abuse

This is an embarrassing bit of journalism here. The story does not even remotely take into account the facts of the case in question.

As stated already in the comments section - the key issue here is whether Virginia law as currently written - allows a valid marriage performed with a Virginia marriage license and a Virginia licensed officiant outside of the borders of the Commonwealth.

It seems to be common sense that you must receive a marriage license from the jurisdiction in which you are being married.

If I am to be wed in Maryland or DC, why would Virginia issue me the marriage license for that event?

Posted by: Fairfax2 | July 9, 2010 12:46 PM | Report abuse

anarcho-liberal-tarian you are wrong. In VA a "Virginia issued license - The marriage license issued in Virginia is for marriages to be performed in Virginia ONLY." heck in MD the license is only valid in the county or city it is issued in. In MD a marriage in Montgomery county on a license issued in PG or Baltimore is not valid regardless of who isues it. Please at least attempt to Google before texting.

Posted by: crete | July 9, 2010 1:50 PM | Report abuse

Author should read and understand KC's opinion before writing about it.
This is a non-issue.
Isn't this analagous to filling out a Maryland state tax form if you live in Virginia?
That's right - doesn't make sense.
Is it too much to ask that people read the rules/law BEFORE they complain?
I wonder how much time they wasted trying to fight this.
Seems pretty straightforward - if you're going to get married in Maryland, follow the Maryland rules.

Posted by: robjdisc | July 9, 2010 2:09 PM | Report abuse

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