Administration, Teachers’ Unions Back Challenge to Same-Sex Marriage Bans

By Mark Walsh — March 09, 2015 2 min read
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President Barack Obama’s administration filed a brief in the U.S. Supreme Court calling for state bans on same-sex marriage to be struck down, arguing that such laws harm same-sex couples and their children.

“These facially discriminatory laws ... send the inescapable message that same-sex couples and their children are second-class families, unworthy of the recognition and benefits that opposite-sex couples take for granted,” said a friend-of-the-court brief filed by U.S. Solicitor General Donald B. Verrilli Jr. on March 6 in Obergefell v. Hodges (Case No. 14-556).

That case is the lead one among challenges to same-sex marriage bans in four states: Kentucky, Michigan, Ohio, and Tennessee. The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, upheld those states’ bans in a decision last November.

The Supreme Court announced last week that it would hear arguments in the cases on April 28.

The justices will consider whether the 14th Amendment requires states to license a marriage between two people of the same sex, and whether it requires states to recognize same-sex marriages performed out-of-state.

The Obama administration’s brief came amid a flood of pro-same-sex marriage briefs due at the court on the side of the challengers to the state laws. The states and their allies defending the prohibitions will file their briefs in about a month.

The brief filed by the U.S. solicitor general argues that state laws barring same-sex marriages violate the 14th Amendment’s equal-protection clause.

The states’ “contention that the marriage bans encourage biological parents to jointly raise children ... unjustifiably disfavors children raised by same-sex couples by denying those couples the same incentives to remain together,” the government’s brief says.

There were at least a couple of other friend-of-the-court briefs on that same issue filed last Friday with significant education-related themes.

The National Education Association, along with many of its state affiliates, joined with the AFL-CIO (of which the American Federation of Teachers is a member) in a brief arguing that state laws barring same-sex marriage harm parents and children.

“As teachers, ancillary school employees, and child-care providers, our members witness every day the ways in which these discriminatory laws stigmatize children and parents alike and inflict psychological and emotional harms on children in the school and child-care environments,” the labor brief says.

Meanwhile, a brief filed by a group of historians argues that the animus behind gay-marriage bans was shaped by decades of discrimination against gay, lesbian, bisexual, and transgender individuals that often manifested itself in the schools.

For example, the “Save Our Children” campaign led in the late 1970s by the singer Anita Bryant “warned about the influence openly gay teachers might have on young students and relied heavily on the stereotype of the homosexual as child molester,” the historians’ brief says.

“Some of the same groups that previously fought gay teachers in schools, gay characters on television shows, domestic partnership policies, and anti-discrimination laws have provided leadership to the campaigns to prevent gay couples from marrying,” the brief adds.

A version of this news article first appeared in The School Law Blog.