Attorney General Mark Herring recently announced that he will not defend the Marshall Newman Amendment, which prohibits the state of Virginia or any of its institutions from recognizing same-sex marriage. Herring has stated that he believes the amendment to the Virginia constitution violates the 14th Amendment of the United States Constitution, which is superior to state law.
Because the University is a public institution, it falls under the jurisdiction of the Marriage Amendment, which is cited as the reason that the University cannot extend health benefits to employees’ same-sex partners. In 2009, three years after the amendment was passed, the presidents of the University, William & Mary and George Mason University, among others, sought to defy that restriction. Then-Governor Tim Kaine initiated an effort to change Virginia laws so that universities could give domestic partner benefits using an “otherwise qualified adult policy.”
This title of “otherwise qualified adult” was used to grant gym memberships to “an adult who is not a spouse and who lives in the household of an employee or student” of the University in 2007, under then-Attorney General Bob McDonnell’s approval. But the effort to extend health benefits using a similar technique two years later did not succeed, because Kaine left office before the movement could follow through. Ken Cuccinelli subsequently became Attorney General and recommended to then-incoming Governor Bob McDonnell that they not proceed with the Kaine-initiated efforts.
The question, then, is what this new transition of power and change of political opinion means for the University now. Even though Herring refuses to defend the Marriage Amendment, it will still be defended by a different attorney, and the federal court hearing the case may uphold the amendment or rule it unconstitutional. And either outcome of this case does not preclude the possibility of an appeal to the Supreme Court.
This decision could be resolved in a matter of weeks, a matter of months or even a year. What will the University do in the mean time? What should it do?
The University of Michigan has extended health benefits to same-sex partners of employees, despite the fact that Michigan passed an amendment to their constitution upholding “traditional marriage.” The ability for the University of Michigan to make this procedural move may depend on the fact that the Michigan Amendment was worded such that it was not as overarching as the Virginia Amendment. But the University of Michigan still should be commended for their step forward.
The University did try to take that step and was unsuccessful, but that failure was due to the circumstances of the time. We now have a new set of political circumstances that are more conducive to success. If the University were to make the decision to extend benefits to same-sex partners, it is unlikely that the state, run by a Governor and an Attorney General who have both stated that they support marriage equality, would try to stop it.
But the likelihood of success is not the only factor in this consideration. True, a lawsuit against the University would likely cost a lot of resources. But it is necessary to think about the principles that the University supports. A lack of benefits for same-sex partners likely alienates many talented faculty who could potentially work for this institution. Not only does this diminish the University’s capacity to offer the best education possible to its students, it perpetuates the social hierarchy of heterosexual privilege and impedes progress toward equality.
To sit quietly and patiently while the case pans out while hoping that the amendment is ruled unconstitutional is easy. Such a course may lead to the extension of same-sex partner benefits anyway. But idleness, especially with such likelihood of success, does not send a positive message about the University’s dedication to social justice. It is easy to wait for someone else to fight the fight for you and for the rest of the disadvantaged, but it is far more honorable to stand up and do it yourself despite the risk.
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