"It's the last redoubt," he said, "against what people like Scalia call the 'homosexual agenda.'"
My respondent, who is anonymous here in accordance with the terms of our interview, was a nationally recognized legal scholar. We were discussing the link between public policy prohibiting same-sex marriage and access to health benefits for gay and lesbian couples. He continued: "It's not respectable in most circles to be openly homophobic. What has become acceptable is to defend marriage. There's one way that we straight people are better than you gay and lesbian people. We can get married, one, two, three, four, any number of times, and you can't get married at all."
My discussion with him was part of an empirical study of same-sex health benefits at institutions of higher education. The study—which was done in Michigan, where in 2007 the courts retracted access to employer-sponsored health benefits for public employees' domestic partners and their children—demonstrates the link between public policy prohibiting same-sex marriage and same-sex couples' tenuous (and geographically dependent) access to employer-sponsored health benefits.
Michigan enacted its constitutional ban on same-sex marriage, known as Proposition 04-2, in 2004. The ban was viewed as the first step in a legal strategy to repeal civil rights for unmarried couples: Constitutional scholars and advocates for gays and lesbians voiced concerns related to health benefits, employment, and housing. Sure enough, three years later, the Michigan Court of Appeals interpreted the new constitutional amendment to mean that no public institution could offer health insurance or other benefits to the domestic partners (or the children of domestic partners) of employees. It ruled that by recognizing domestic partnerships, universities were acknowledging same-sex relationships in a sense that ran contrary to the intent of the amendment. In 2008, the state Supreme Court upheld the decision, eviscerating domestic-partner protections and rendering domestic-partner health benefits illegal in Michigan.
What were the effects of the same-sex marriage ban on public universities and their employees? To find out, I conducted interviews with those inside and outside higher education (including proponents of the ban) and analyzed human-resource data. I found that universities have adapted to the new regulatory constraints by establishing Other Designated Beneficiary (ODB) or "plus-one programs," meaning that to comply with the law, remain competitive, and respond to equality concerns, they expanded health-benefit eligibility to include both same- and opposite-sex unmarried partners. Thus, Michigan's same-sex marriage ban has had several intended and unintended outcomes.
On the intended side, repealing access to health benefits for domestic partners has created a chilly climate for same-sex couples in Michigan. Interview respondents made this point with clarity. Executive administrators bemoaned the effect of the passage of Proposition 04-2 on the recruitment process, and faculty members talked about moving to other states. Foreign faculty spoke of maintaining foreign citizenship in case access to benefits was rescinded. In aggregate, universities in Michigan lost 10 percent of faculty members who had same-sex partners between the time that domestic-partnership benefits were stricken and new benefits policies were enacted.
On the unintended side, the passage of Proposition 04-2 has benefited unmarried heterosexual couples, who previously lacked access to the benefits. Human-resource data show that increases in health-care-plan enrollment across the universities were driven by opposite-sex partners.
The second unintended effect has been to increase what public institutions spend on health care; universities are now covering a larger pool of benefit enrollees. Furthermore, the federal tax code is such that organizations offering unmarried-partner health benefits are subject to additional payroll taxes. In an attempt to minimize those cost increases, many institutions created more-stringent eligibility requirements for unmarried couples, including minimum periods of cohabitation, age thresholds, and caps on the number of employees who are eligible to receive benefits. Because married couples have access to benefits without these exclusions, and heterosexual couples have the option of marriage, same-sex couples are disproportionately affected by these measures, which further exacerbate structural inequities that already exist.
The Michigan case matters, because the culture war over same-sex marriage is far from over and its implications for higher education remain uncertain in other states. For example, the University of Virginia, the University of Texas, and the University of Kansas all deny health benefits to same-sex couples. Meanwhile, California's Proposition 8, which bans gay marriage, wends its way toward the U.S. Supreme Court. If the court upholds Proposition 8, more states are expected to pass similar bans, which would increase the likelihood that domestic partners there would lose access to health benefits.
Preventing public colleges and universities from offering health benefits to same-sex couples can seriously handicap them because public institutions in many other states (and private institutions everywhere) can offer them. Such benefits signal the importance of diversity and maintain universities' ability to recruit from global talent pools.
More fundamentally, we must recognize that institutions of higher learning serve not only to generate and safeguard knowledge, but also to train future citizens and leaders. One survey respondent put it succinctly: "If you believe that equality is the right thing, if you believe that prejudice is based on a lack of knowledge, then universities, as repositories of knowledge, should be practicing equality."
That is why universities must be able to offer their gay and lesbian employees the same benefits they offer heterosexuals. That is also why the link between state bans on same-sex marriage and same-sex couples' access to university health benefits is so important—not just for those in the minority, but for everyone.