As the courts struggle to implement the Windsor opinion, there will inevitably be steps forward and steps backward. A notable step backward is Virginia Attorney General Opinion 13-102, released by outgoing Virginia Attorney General Ken Cuccinelli on January 10, 2014—the very last day of his tenure as attorney general.
The opinion answers an inquiry from a Virginia state senator, asking whether "public sector health plan sponsors" in Virginia must follow United States Department of Labor Technical Release 2013-04. That Release provides that administrators of benefit plans regulated by the federal Employee Retirement Income Security Act of 1974 (“ERISA”) must recognize same-sex marriages if those marriages are valid in the state where the marriage took place.
Most benefit plans regulated by ERISA are private plans, but federal law also regulates certain public sector health plans in states that accept federal funding under the Public Health Service Act. E.g., 42 U.S.C. § 300bb‑1. By accepting federal funds for public health, these states have voluntarily agreed that group health plans for public sector employees will be subject to federal requirements.
Mr. Cuccinelli opined that Virginia administrators of public sector health plans need not follow the position taken by the Department of Labor—the federal agency responsible for construing ERISA. He took the position that Windsor did not require any state to accept same-sex marriage and that section 2 of the Defense of Marriage Act (“DOMA”) remains valid. That statute provides that federal law shall not require any state to recognize same-sex marriage. He finally cited Virginia's constitutional provision against same-sex marriage, Va. Const. art. I, § 15-A, which prevents any recognition of same-sex marriage.
Given that federal law necessarily controls the operation of federally regulated benefit plans, Mr. Cuccinelli's insistence that state law nevertheless be followed brings to mind John C. Calhoun's insistence that states can nullify operation of any federal law within their borders—a doctrine that did not survive the Civil War.
As interesting as the position that Mr. Cuccinelli took is the position that he chose not to take. Federal regulation of public sector health plans appears to be rather narrow, focusing mainly upon rights to continued coverage after termination. 42 U.S.C. § 300bb‑1. In addition, all group health plans, whether public or private, are required to follow certain basic requirements, such as avoiding any exemption for preexisting conditions, see 42 U.S.C. § 400gg-3, as a result of the health-care reform law popularly known as Obamacare.
It is far from clear that federal regulation of public sector health plans is sufficiently comprehensive to require such plans to universally follow the federal definition of “spouse” in situations in which the state definition is more restrictive. Mr. Cuccinelli could have stressed the limited nature of federal regulation of public sector plans, or have even raised constitutional issues as to whether the federal government can properly insist that state public sector plans follow the federal definition of “spouse.” Instead, the opinion seemed to accept that the plans were federally regulated and he then asserted that the plans must nevertheless follow conflicting state law.
Mr. Cuccinelli's construction of Windsor is also strikingly inconsistent with most existing post-Windsor case law. Provisions similar to the Virginia provisions on which Mr. Cuccinelli relied have been held unconstitutional in Ohio and Oklahoma on the basis that they were enacted with the intent to discriminate against gay persons, and in Utah on the basis of a broad federal right to same-sex marriage. Mr. Cuccinelli did not cite these decisions or argue that they were wrongly decided. He also failed to cite at least one case that essentially adopts his position that state law restrictions upon same-sex marriage remain valid. Had the opinion contained more legal analysis, it might have been a useful contribution to public debate over the scope of Windsor and the future of same-sex marriage.
The timing of the opinion is also remarkable. Mr. Cuccinelli is Virginia's outgoing Attorney General. He lost that position when he ran, unsuccessfully, for Governor of Virginia. Virginia's new administration took office on "the Saturday after the second Wednesday in January," Va. Const. art. V. § 1—which was January 11, 2014. The opinion was issued on January 10, which was literally Mr. Cuccinelli's last day as Attorney General. Mr. Cuccinelli is an outspoken social conservative, and Opinion 13-102 appears to be something of a last shot against the recognition of same-sex marriage—which does not even contain enough analysis and argument to potentially move the public debate in Mr. Cuccinelli's direction.
Virginia's incoming Attorney General, Mark Herring, campaigned on a platform of marriage equality, and he has filed a brief arguing that Virginia's constitutional provision against same-sex marriage is unconstitutional. It therefore seems likely that future Virginia Attorney General opinions on the subject of same-sex marriage will be very different from those written by Mr. Cuccinelli.