In striking down California’s ballot initiative barring same-sex marriage, a federal appeals court rejected, among other rationales offered for the measure, the argument that it would protect children from being taught in public schools that gay marriage is the same as traditional marriage.
The 2-1 ruling on Tuesday by a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, struck down Proposition 8, the measure narrowly passed by California voters in 2008 that withdrew the right of same-sex couples to marry. The panel found the measure violates the equal-protection clause of the U.S. Constitution.
The lengthy opinion deals with many issues, including several rationales offered by the measure’s proponents, among them the so-called education rationale. In his 2010 ruling striking down the measure, U.S. District Judge Vaughn Walker had also rejected that rationale, suggesting that Proposition 8 campaign proponents had “played on fears that children exposed to the concept of same-sex marriage may become gay or lesbian,” (Blog post here.)
In his majority opinion for the 9th Circuit panel, U.S. Circuit Judge Stephen R. Reinhardt also rejects the education rationale.
“California law belies the premise of this justification,” Judge Reinhardt said in the Feb. 7 decision in Perry v. Brown. “Both before and after Proposition 8, schools have not been required to teach anything about same-sex marriage.”
Reinhardt said allowing same-sex marriage may inevitably alter the lessons children learn in schools.
“Schools teach about the world as it is,” he said. “When the world changes, lessons change. ... The prospect of children learning about the laws of the state and society’s assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of those rights they presently enjoy.”
Writing in dissent, Judge N. Randy Smith did not address the education rationale, but he concluded that proponents’ “optimal parenting theory” provided a legitimate state interest for recognizing only traditional marriage. Under that rationale, recognizing marriage solely for opposite-sex couples is based on the theory that the optimal family structure for raising children is two biological parents, one man and woman.
Tuesday’s decision is expected to be appealed either to a larger panel of 9th Circuit judges or to the U.S. Supreme Court.
A version of this news article first appeared in The School Law Blog.