ALONG with a Democratic victory in the Houseand Senate,the November elections also enacted a host of controversial ballot referendums. Missouri approved a measure endorsing stem cell research. Michigan passed an amendment forbidding race and gender preferences in state agencies. Here in Virginia, an awkwardly worded amendment now constitutionally forbids gay marriages. The prudence of all these measures may be questioned, but the democratic system guarantees representation, not sagacious policy. Nonetheless, our University should challenge the gay marriage ban by testing its constitutional scope and validity in the courts.
We would not be the only school to demonstrate this kind of courage. The University of Michigan has declared it will not lie supine as the state's newly passed constitutional amendment decapitates an admissions program sensitive to diversity. Michigan's President, Mary Sue Coleman, promised to not to be "deterred in the all-important work of creating a diverse, welcoming campus." While she may ultimately be shadow-boxing with the issue, her willingness to engage displays a courage that the University should envy and emulate.
The Marshall-Newman amendment in Virginia bans any "union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage." Obviously, this is not as directly relevant to our University as the Michigan amendment is to the University of Michigan. Nonetheless, as bastions of forward-leaning thought, American colleges and universities cannot be held to mere academics. They can and should take actions to challenge, create, or otherwise validate wise public policy.
To this end, the University should create a whole host of legal statuses that mimic the "rights, benefits, obligations, qualities, or effects of marriage" in order to challenge the awkwardly worded amendment. This, however, is a tricky task because, according to Wayne Cozart, director of alumni affairs, the Attorney General's Office has oversight on such decisions. Nonetheless, the University could begin with small, subtle challenges, only slowly becoming more defiant. For example, the University hospital could begin by allowing all people in a relationship with professors to have access to University gyms, or yearly membership for cheaper. Next, the University could even create "rights, benefits, obligations, qualities or effects of marriage" for professors working together on an academic project. If read literally, the amendment would ban such benefits.
If left unchallenged, the University Hospital could allow all partners in heterosexual or homosexual relationships to visit during "family hours," thus clearly mimicking a benefit relevant to marriage. Furthermore, the University could expand its benefits to gay partners, benefits that would include healthcare, dental, etc. These benefits would not have be limited to gay partners. Nonetheless, they would have the added benefit of finally reflecting the student body's will: in 2004, a student initiated referendum favoring benefits for same sex partners passed with a 74 percent majority.
By doing so, the University would accomplish two noble tasks. First, its policies would necessarily become more compassionate and thus welcoming of a more diverse faculty. Second, by reaffirming and expanding already existing benefits, the University would signal the obvious to the state: no one understands how far this amendment reaches.
Some may read this and think that I'm advocating unlawful behavior. This could not be farther from the truth. Simply put, no one knows what the law is, and I'm advocating that the University take the lead in discovering this. Testing the constitutional scope and validity of a law in this fashion is a long and proud legal tradition in the United States Famous cases such as Griswold v. Connecticut or Brown v. Board came to be through courageous plaintiffs who, concerned about certain laws, decided to test their constitutional validity. The University of Virginia would thus be completely in line with American legal tradition.
The proponents of the Marshall-Newman amendment claimed the amendment merely banned gay marriage; if this is true, then none of my suggestions would be illegal, and the courts would simply declare this fact. If, however, the courts rule these suggestions to be unconstitutional and go even as far as to rule out any contract that mimics marital benefits or obligations, then perhaps the people of Virginia will begin to reevaluate the vague amendment. The worst case scenario would merely be a clarification and perhaps a reevaluation of the law.
Carol Wood was not available for comment over Thanksgiving Break.
My bias is simple. I don't believe that laws limiting rights, freedoms, responsibilities and livelihoods should be vague. The University of Michigan now finds itself in a bind: Will the new amendment completely rob their school of diversity and perspective? They intend to find out and, to the extent that they are legally capable, they seem intent to find loopholes. The commonwealth of Virginia is also in a bind: a vague, undefined amendment now rests on the books and, if read literally, seems to ban contracts irrelevant but similar to marital contracts. Whether or not one supports the stated purpose of the amendment (to ban gay marriage, which is already banned according to state law), we should all support its clarification; as the preeminent University in the state, our University should lead the charge.
Sina Kian's column appears Tuesdays in The Cavalier Daily. He can be reached at skian@cavalierdaily.com.
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