Harsh words and terse documents circled the State Capitol last week, following Attorney General Mark Herring’s announcement that he will refuse to defend the Marshall-Newman Amendment, also known as the Marriage Amendment, which is being challenged in District Court.
The amendment defines a valid marriage as “only a union between one man and one woman.” Such clauses are common to many state constitutions, but the Virginia amendment is unique in that it also forbids the commonwealth and its political subdivisions from “[creating] or [recognizing] a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage.”
Virginia voters voted 57 percent in favor of the amendment in a 2006 ballot initiative. The bill also passed through the House of Delegates and Senate twice earlier that same year.
Beyond simply prohibiting same-sex marriage, such a strict and comprehensive code has prevented the University and other state agencies from extending health care and other benefits to the same-sex partners of employees. Extending these benefits is a common practice at other institutions of higher education, and many say the University’s lack of participation has been a prohibitive factor in hiring and retaining talented lesbian, gay and bisexual faculty and staff.
Legal Representation Crisis
Herring changed the official legal position of the commonwealth on Bostic v. Rainey, the case currently being heard in federal district court that is challenging the Marriage Amendment. Herring said the amendment conflicts with the 14th Amendment of the federal constitution.
“Having exercised his independent constitutional judgement, consistent with his oath of Office, the Attorney General has concluded that Virginia’s laws denying the right to marry to same-sex couples violate the Fourteenth Amendment to the United States Constitution,” the Office of the Attorney General of Virginia said in a document submitted to the United States District Court for the Eastern District of Virginia. “The Attorney General will not defend the constitutionality of those laws, will argue for their being declared unconstitutional, and will work to ensure that both sides of the issue are responsibly and vigorously briefed and argued.”
Swift response ensued from the House of Delegates. Del. Bob Marshall, R-Manassas, sent a letter cosigned by 31 other delegates to Governor Terry McAuliffe the next day. The delegates urged McAuliffe to “provide adequate counsel to defend the people of Virginia in their Marriage Amendment to the Virginia Constitution which is now under legal challenge in the Commonwealth.”
A second letter containing the signatures of 22 additional supporting delegates followed.
Del. James Massie, R-Henrico, said he believes Herring is not acting in accordance with his position.
“The Attorney General of Virginia needs to impartially defend the constitution whether he agrees with that or not,” Massie said.
Massie believes that Herring’s stance is based on political, rather than constitutional, considerations.
“He’s changed his mind on it and I would posit that he’s changed his mind for political reasons,” Massie said, citing Herring’s vote in favor of passing the Marriage Amendment in 2006, when Herring was a state senator. “He’s not willing to defend the constitution of Virginia for political reasons.”
In 2006, Herring was one of six Democrats in favor of the amendment, while 11 Democratic senators voted against it. Herring has since said he had a change of heart.
McAuliffe denied the merit of the delegates’ concerns Monday.
“In the present case, Virginia’s same-sex marriage ban is being vigorously and appropriately defended by the Clerk of Court for the City of Norfolk and the Clerk of Court for Prince William County,” McAullife wrote in a letter to Marshall. “Accordingly, I respectfully decline to appoint special counsel in this matter.”
In response, the Republican-controlled House of Delegates has preliminarily approved a bill to allow the House to appoint special counsel to defend the laws and constitution of Virginia when the Attorney General does not. A vote in the House is expected Monday.
The Long Battle
Though the legal battle about the Marriage Amendment is of more recent popularity, the struggle for state universities to extend employee spousal benefits dates back to the amendment’s initial passing.
In 2007, former University President John T. Casteen III requested a legal opinion from then-Attorney General Bob McDonnell on whether or not the University “may provide recreational gym memberships to an adult who is not a spouse and who lives in the household of an employee or student.”
McDonnell found that the University in fact had the legal standing to extend the gym membership to eligible adults.
It is that legal opinion which Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, believes the University could use, without waiting for the outcome of the case against the amendment, to immediately extend health care and other same-sex partner benefits.
“All I would do is encourage [the University] to use [that legal opinion],” Gastañaga said.
Other institutions in states with marriage amendments, such as the University of Michigan, have other qualified adult health care policies that are used to extend all spousal benefits to same-sex partners of employees at those institutions despite their state constitutions, Gastañaga said.
“The University could have an otherwise qualified adult policy,” Gastañaga said. “[University] President [Teresa] Sullivan came from [the University of Michigan] and they have been doing that for quite some time. At the University of Virginia, unlike other state agencies, the health insurance plan is self-insured and isn’t restrained by the state insurance plan.”
The University has made a point to seek legislative and executive approval for benefit extension. In 2009, the presidents of several state universities, including the University, the College of William & Mary, and George Mason University, publicly supported then-Governor Tim Kaine’s efforts to allow state higher education institutions to grant domestic partner benefits using an otherwise qualified adult policy.
In a 2009 letter to Kaine, Casteen and other state university presidents claimed their inability to offer same-sex spousal benefits put them at a disadvantage in a highly competitive economic atmosphere.
“Our own experience and analysis suggest that most of the major national private and public universities with whom we compete when we hire or work to retain top faculty already offer domestic partner health insurance,” the letter said. “The ability to offer this benefit is increasingly important now as we attempt to recruit and retain the best faculty and staff in the most challenging economic climate we have seen.”
The push, which would have involved regulatory and procedural changes to existing laws, came at the end of Kaine’s administration, however, and was dropped by his successor, McDonnell.
“[There were] 600-plus comments in favor of [offering] this ‘otherwise qualified adult’ policy and the McDonnell administration just chose to stop the regulatory process,” Gastañaga said.
University Repercussions
The question of health care benefits may have receded from the spotlight in favor of the discussion of same-sex marriage in general, but benefits have remained at the forefront of agendas for Virginia’s university presidents.
Last summer, then-William & Mary Rector Jeffrey Trammel sent a letter to Virginia Tech President Charles Steger and other members of the Council of Presidents, Rectors and Vice Rectors, including Sullivan, to encourage continuing the discussion of offering domestic partner health care benefits.
“I would urge the Presidents to again unite in our universities’ interest … as expressed by the university presidents in that 2009 letter asking for the flexibility to offer partner benefits,” Trammel wrote. “This ‘statement of need’ would simply make it clear that today’s needs are even greater than they were in 2009.”
The University’s lack of same-sex spousal benefits has been detrimental to recruiting efforts, said Susan Carkeek, the University’s chief human resources officer, acknowledging that Human Resources has received complaints about the policy.
“It has presented problems for the University in recruiting and retaining faculty and staff,” Carkeek said in an email.
Trammel’s letter included several specific examples, many of which came from the University, of esteemed faculty who have left as a result of the policy.
Among them was a professor in the College whose partner had previously suffered from cancer, preventing her from receiving private health insurance. “The faculty member now teaches at a well-known university in New York, which provides health insurance for her partner,” the letter said.
Claire Kaplan, the Director of Sexual and Domestic Violence Services, has worked at the University since 1991 and said she has seen many colleagues and graduate students leave because their partners could not be insured.
“I have a number of wonderful colleagues that have left U.Va. for this very reason,” Kaplan said. “I’ve known graduate students that have left and most graduate students don’t like to leave in the middle of their program.”
There are still many affected faculty and staff who have chosen to stay at the University, however.
Meghan Faulkner, assistant to the vice president and chief officer for diversity and equity for programs and projects, has remained at the University despite many extra hurdles for her and her partner.
“My wife and I got married in Washington, D.C. in May of 2011, and she is self-employed,” Faulkner said, requiring her to buy private insurance.. “That’s been amplified since she got pregnant. It’s very difficult to find individual health coverage that has good maternity coverage.”
The University policy has also had a severe impact on her family’s long-term planning, Faulkner said.
“U.Va.’s policy has influenced how we build out our lives,” Faulkner said. “Unfortunately our kids will not be eligible to be enrolled on U.Va.’s health plan unless I am able to adopt them, which I cannot in the state of Virginia.”
Faulkner will not legally be able to adopt her partner’s children in Virginia because she will not be their biological mother nor does the state recognize her as legally married to the biological mother. Faulkner and her partner plan to have their child in D.C. so both can be made legal parents.
Students React
Student support for extended same-sex partner benefits is wide-reaching.
University Democrats President Kat Bailey, a third-year College student, supports Herring’s refusal to defend the amendment in court and supported extending health care coverage to all family members of University employees.
“We would prefer that all families of U.Va. employees and faculty are treated equally regardless of their gender and we hope that the Attorney General’s stance points to U.Va.’s need to change the policy,” Bailey said.
Elizabeth Minneman, a third-year College student and chairman of the College Republicans, while not as supportive of Herring’s actions, said she also believes action is required by the University on this issue.
“I disagree with Mark Herring,” Minneman said. She added that she only disagreed with his methods, however, and that she supports same-sex marriage. “We barely receive state funding, so I would support U.Va. taking a pro-helping same-sex couples stance.”
Arni Mapili, a fourth-year in the College and Programs Intern for the LGBTQ Center, reacted positively to Herring’s announcement.
“I was definitely really, really excited about that,” Mapili said. “Not too long ago… we had one of the most anti-LGBTQ Attorneys General in the nation in Ken Cuccinelli. Now we are seeing a glimmer of hope in Mark Herring’s actions.”
Correction: Meghan Faulkner is the assistant to the vice president and chief officer for diversity and equity for programs and projects. An earlier version of this article stated that her wife did not have health insurance. Faulkner’s wife does have health insurance, but she is not eligible to enroll in the University’s health care plan.
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