In Parting Blow, Va.'s Cuccinelli Files Two Last Antigay Opinions

On his last official day as attorney general of Virginia, failed gubernatorial candidate Ken Cuccinelli cemented his antigay legacy by trying to keep the state extending any benefits to legally married same-sex couples.

BY Sunnivie Brydum

January 13 2014 5:33 PM ET

In one of his final acts as Virginia's attorney general, Ken Cuccinelli filed two legal opinions that appear to be an effort to stifle the pro-choice and pro-marriage equality agenda of newly inaugurated governor Terry McAuliffe

Cuccinelli, a right-wing Republican who lost his gubernatorial bid to Democratic challenger McAuliffe in November, issued two opinions on Friday, the last day of his tenure as the state's highest-ranking legal official. 

One opinion filed appears to take aim at McAuliffe's anticipated actions to roll back abortion restrictions enacted during the tenure of Cuccinelli and outgoing Republican governor Bob McDonnell, reports Norfolk's Virginian-Pilot.

The second opinion is less nuanced, directly declaring that the governor cannot order Virginia officials to accept joint state tax returns from same-sex couples legally married in other states. 

The opinion, which is not legally binding, contends that Virginia's state constitutional prohibition on same-sex marriage trumps federal policy, which was revised to offer equal benefits to married same-sex couples in the wake of the Supreme Court's landmark ruling last summer in U.S. v. Windsor.

Friday's opinion appears to back up a December announcement from the Virginia Department of Taxation, which sought Cuccinelli's legal advice when it determined that the state would not recognize legally married same-sex couples as such for the purpose of tax returns. 

That December decision essentially forces legally wed gay and lesbian couples in Virginia to file state returns as unmarried individuals and prevents small businesses from claiming deductions on benefits offered to same-sex couples. The December action — and Friday's opinion from Cuccinelli — also break with the official policy of the Internal Revenue Service, which announced last year that it would accept joint tax returns from married same-sex couples, regardless of the laws of the state in which they live.

A spokesman for Governor McAuliffe told the Virginian-Pilot that the newly inaugurated governor intends to discuss the issues with the new attorney general, fellow Democrat Mark Herring. McAuliffe is generally considered an ally to the LGBT community and among his first actions as governor Saturday signed an executive order banning discrimination against LGBT Virginians in public employment — a step the state legislature has repeatedly declined to take. 

Finally, the Virginian-Pilot notes that Cuccinelli filed one other antigay opinion in his final month as attorney general, this time arguing that Virginia employers are not required to extend health care benefits to the same-sex spouses of public employees, despite federal labor guidelines that say such benefits are guaranteed to employees of the state.

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