In the last month, just as the movement to legalize same-sex marriage in the state of Virginia recieved the all-clear, it was stopped abruptly in its tracks.
After the ban on same-sex marriage in the state of Virginia was ruled unconstitutional in a federal court of appeals July 28, supporters of the ban appealed to the United States Supreme Court. The court granted a stay Aug. 20, putting the implementation of the new ruling on hold. Had the stay not been granted, same sex couples would have been able to marry starting the next day, Aug. 21.
“The legal effect [of the stay] is that the ban, which is not just a ban on marriage of same-sex couples but a ban on any state recognition of any civil union, domestic partnership or any other relationship that might approximate marriage, will remain in effect until the Supreme Court denies certification,” adjunct professor Marc Purintun of the Marshall-Wythe School of Law said.
The Supreme Court may pick up the case as early as this October, or not at all, in which case the stay will end and the appeals court’s ruling will become law. While the stay blocks the immediate recognition of same-sex marriage, it does not necessarily suggest that the Supreme Court will ultimately defend the ban.
“It’s always been a way to sort of guarantee that the losing party has one more chance to have their case heard,” former Rector of the College of William and Mary and LGBT advocate Jeffrey Trammell ’73 said. “The other reason it’s done sometimes is because it would be confusing if you go one way, and then come back and the higher court overturns it and goes in the other direction.”
“How [the Supreme Court] rules on the constitutionality of any of these bans will apply across the nation,” Purintun said.
If the Virginia case is heard and the court rules in favor of same-sex marriage, the ban will be definitively overturned. If the court upholds the ban, the only way to legalize same-sex marriage will be through a process involving both a public referendum and the passage of legislation in the state government to change the constitution.
“We all assume the court will take it up because it’s such a big issue with the public and nationwide, but it’s not a guarantee,” Trammell said.
Although the moral aspect of same-sex marriage is still debated, the practical effects of the ban are tangible at the College and other state institutions, where both gay and straight faculty may be deterred by the university’s inability to offer benefits to same-sex couples.
Tom Kramer ’06, executive director of Virginia21, an organization that advocates for young voters, has made the legalization of same sex marriage one of the organization’s priorities in order to attract high-quality faculty to Virginia state schools.
“It’s not good enough to just have an affordable college education, you have to have a high-quality education,” Kramer said. “If this is something that is reducing our ability to bring in good faculty, then that is reducing the quality of education for students.”
Virginia21 is focused on putting pressure on the governor and the attorney general to act, Kramer said. Many institutions currently offer benefits to the employee and an “other qualified adult,” primarily defined as someone who shares a residence and is financially interdependent with the employee but is neither a blood relative nor a tenant.
“The perfect thing other than the Supreme Court coming in and ruling that any type of restriction of marriage is unconstitutional … would be for the General Assembly to act,” Kramer said. “In a perfect world, the GA would see that they’re putting our universities at a disadvantage, and they would act.”
Purintun, who is teaching a course this semester called “Tying the Knot: Relationship Recognition of LGBT Couples,” added that in terms of legal language, same-sex marriage is not distinguishable from its heterosexual counterpart.
“Under the law, legally, there is no such thing as same-sex marriage in any state,” he said. “It’s just marriage. We don’t have black marriage or Jewish marriage or left-handed marriage. It’s just marriage.”