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Will Same-Sex-Marriage Rulings Lead to an LGBT Brain Drain in Some States?

Last Saturday, I married another professor before 150 family members, friends, and colleagues gathered on the Chesapeake Bay. The fact that both of us were brides in white dresses drew a few gawkers but otherwise made for a nice picture—especially at the end of the ceremony, when we ran into the water to celebrate.

Just four days later, my new wife and I were engulfed in a second wave of celebration. We cheered and cried on Wednesday morning as we learned that the Supreme Court had struck down as unconstitutional the provision of the Federal Defense of Marriage Act defining marriage as “a legal union between one man and one woman as husband and wife.” Now our marriage—like same-sex marriages in the 13 states (and the District of Columbia) that allow them—enjoys legal recognition at the federal level. A companion Supreme Court decision paved the way for legal same-sex marriages to resume in California.

After hearing this news, I realized that if my wife and I weren’t already both teaching in Maryland, where we enjoy full equality under the law, I would want to begin looking for jobs in one of the states where such equal treatment is afforded to same-sex couples.

I then began to wonder if administrators and senior faculty seeking to recruit talented scholars are going to see ripple effects from the Supreme Court’s rulings. If you work in one of the jurisdictions where same-sex marriage is legal, will it suddenly become much easier to recruit LGBT talent away from institutions in the 29 states with constitutional amendments banning same-sex marriage? If you are unfortunate enough to work in one of those 29 states, especially the 19 that lack any legal protections for LGBT employees, will you see a brain drain of LGBT talent from your colleges to those in states where we are treated as equals?

Those at private institutions, many of which offer generous benefits to LGBT employees and their partners regardless of state law, may think this is not an issue for them. But while those benefits may convince some to stay despite state-level discrimination, a number of prospective hires may never think of going there in the first place. (Yes, it’s a great university. But it’s in Tennessee. I’ll take the job in Minnesota instead.) The progressive bubble of a college town offers small consolation for LGBT faculty, staff, and students who lack legal recognition of their marriages and legal protection against discrimination.

This is not just an issue of fairness. It’s an issue of practicality. Because of the Supreme Court’s ruling, my wife and I will not have to disentangle our very -entangled finances in order to file federal taxes. We will be able to sign up for joint health benefits at our university, like any other married couple, without paying federal income taxes on these benefits. Until now the federal government’s nonrecognition of same-sex marriage meant that same-sex married couples, but not opposite-sex married couples, had to count such benefits as taxable income. While that is admittedly a “luxury problem” for some of us, it has posed a serious hardship for university employees whose same-sex spouses are stay-at-home parents, freelancers, or disabled. This week’s Supreme Court ruling has resulted in the end of this “gay tax.”

In Virginia, just 26 minutes by car from my house, the situation couldn’t be more different. A state constitutional amendment bans same-sex marriage, and it is legal to discriminate against employees at state institutions for being gay, lesbian, bisexual, or transgender. Virginia’s constitutional amendment against same-sex marriage is so strong that some lawyers interpret it as preventing couples like my wife and me from being able to sign enforceable joint advance medical directives or other binding contracts.

I learned what it means to be a gay academic in Virginia when I took my first professorial job, in 2008, at Virginia Commonwealth University. Although most faculty and staff there are supportive of LGBT rights, and the university has maintained its policy against discrimination based on sexual orientation—despite pressure from the state’s attorney general—the policy lacks teeth because it is not backed by state law. Same-sex partners cannot be included in one’s health benefits at all. A spousal hire for a same-sex partner is out of the question.

As a tenure-track faculty member at VCU, I also realized that if just one person on the school- or university-level tenure committee knew that I was gay, and decided to deny me tenure for that reason alone, I would have no legal recourse. That might sound like a paranoid thought, but senior faculty members discreetly warned me against a few such administrators. While a desire to live full time with my spouse was the main motivator in my move from a college in Virginia to one in Maryland, the antigay legal environment in Virginia did play a role in my job change.

Some may argue that the Supreme Court’s rulings on same-sex marriage will have little or no effect on academe. After all, LGBT people represent at most 4 to 5 percent of the population, according to the University of California at Los Angeles’s Williams Institute. Even if we are overrepresented in academe, the overwhelming majority of academics are heterosexual and nontransgendered.  And many tenured LGBT academics in states that endorse discrimination may very likely continue to put up with it, in the interest of job security. Even if there is an LGBT brain drain away from discriminatory states, academic institutions in these states will no doubt survive without us.

On the other hand, anyone who really cares about the future of diversity in academe; about LGBT colleagues, staff, and students; and about the principles of equity and fairness should on principle join the fight for federal legislation banning LGBT discrimination and for the legalization of same-sex marriage in every state.

Besides, same-sex weddings are a lot of fun.

Marian Moser Jones is an assistant professor of family science at the University of Maryland at College Park and the author of The American Red Cross From Clara Barton to the New Deal (Johns Hopkins University Press, 2013).

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