criminal-law virginia
Would the classic South Park song describe incest in Virginia?
<p>As best as I can tell, Virginia law prohibits many (though not all) incestuous marriages with gender-specific nouns only (<a href="https://law.lis.virginia.gov/vacode/title20/chapter3/section20-38.1/" rel="nofollow noreferrer">§ 20-38.1</a>):</p>

<blockquote>
  <p>(a) The following marriages are prohibited:</p>
  
  <p>...</p>
  
  <p>(2) A marriage between an ancestor and descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood or by adoption;</p>
  
  <p>(3) A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood.</p>
  
  <p>...</p>
</blockquote>

<p>And it prohibits sexual relations only between people for whom the law forbids marriage (<a href="https://law.lis.virginia.gov/vacode/18.2-366/" rel="nofollow noreferrer">§ 18.2-366</a>):</p>

<blockquote>
  <p>A. Any person who commits adultery or fornication with any person whom he or she is forbidden by law to marry shall be guilty of a Class 1 misdemeanor except as provided by subsection B.</p>
  
  <p>B. Any person who commits adultery or fornication with his daughter or granddaughter, or with her son or grandson, or her father or his mother, shall be guilty of a Class 5 felony. However, if a parent or grandparent commits adultery or fornication with his or her child or grandchild, and such child or grandchild is at least thirteen years of age but less than eighteen years of age at the time of the offense, such parent or grandparent shall be guilty of a Class 3 felony.</p>
  
  <p>...</p>
</blockquote>

<p>Except certain types of acts, which are explicitly forbidden with specific relatives (<a href="https://law.lis.virginia.gov/vacode/18.2-361/" rel="nofollow noreferrer">§ 18.2-361</a>):</p>

<blockquote>
  <p>...</p>
  
  <p>B. Any person who performs or causes to be performed cunnilingus, fellatio, anilingus, or anal intercourse upon or by his daughter or granddaughter, son or grandson, brother or sister, or father or mother is guilty of a Class 5 felony. However, if a parent or grandparent commits any such act with his child or grandchild and such child or grandchild is at least 13 but less than 18 years of age at the time of the offense, such parent or grandparent is guilty of a Class 3 felony.</p>
  
  <p>...</p>
</blockquote>

<p>Same-sex marriages were forbidden in another section of the Virginia Code, but the U.S. Supreme Court has held that states cannot prohibit same-sex marriages.</p>

<p>In light of that ruling, does that mean the lines of the <a href="https://www.youtube.com/watch?v=VsMcdEswK8k" rel="nofollow noreferrer">classic South Park song</a> <strong>(Warning: explicit)</strong> would not constitute incest in Virginia?</p>

<p>The relevant Virginia law banning same sex marriage does appear to still be in effect, <a href="https://law.lis.virginia.gov/vacode/title20/chapter3/section20-45.2/" rel="nofollow noreferrer">§ 20-45.2.</a>:</p>

<blockquote>
  <p>A marriage between persons of the same sex is prohibited...</p>
</blockquote>

<p>The Supreme Court decision in <a href="https://en.wikipedia.org/wiki/Obergefell_v._Hodges#Majority_opinion" rel="nofollow noreferrer">Obergefell v. Hodges</a> relies primarily on the Due Process and Equal Protection Clauses of the 14th Amendment, which would require equal treatment to all citizens regardless of their sex or sexuality, and therefore invalidate this law in general.  However, Virginia could argue that two persons of the same sex who engage in incest are not protected by the Equal Protection Clause as their marriage would be forbidden on the grounds that it is incest, not that they are the same sex.  An amended version of the law which did not specify the sex of the related parties in banning uncle/aunt/nephew/niece incest would not raise Constitutional issues, so the court may accept that the state can use a general ban on same-sex marriage to ban the specific case of same-sex marriage between sufficiently related defendants.  While this reasoning requires some contortion, it may be provable that the ban on same-sex incest was originally an implicit or stated intent of the law, and thus that piece ought to be enforceable.</p>
