Supreme Court to Weigh Gay Marriage

By Mark Walsh — December 07, 2012 3 min read
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The U.S. Supreme Court on Friday agreed to take up two cases dealing with same-sex marriage, an issue that like many hot-button debates has implications for schools.

The justices will hear a case involving California’s Proposition 8, a 2008 ballot measure that withdrew the right of same-sex couples to marry in that state. One of the rationales offered by the proponents of Proposition 8 was that the measure would protect children from being taught in schools that gay marriage was equal to traditional marriage.

In striking down Proposition 8, both a federal district court and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, rejected the education argument as a rational basis for the state ballot measure.

“The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian,” U.S. District Judge Vaughn R. Walker wrote in his 2010 opinion in the case. “The reason children need to be protected from same-sex marriage was never articulated in official campaign advertisements. Nevertheless, the advertisements insinuated that learning about same-sex marriage could make a child gay or lesbian and that parents should dread having a gay or lesbian child.”

Earlier this year, writing for the majority on a 2-1 panel of the 9th Circuit that also rejected Proposition 8, Judge Stephen R. Reinhardt said that California law “belies the premise” of the proponents’ school justification for the measure.

“Both before and after Proposition 8, schools have not been required to teach anything about same-sex marriage,” Judge Reinhardt wrote, while adding that allowing same-sex marriage may inevitably alter the lessons children learn in schools.

“Schools teach about the world as it is,” he wrote. “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.”

In their appeal to the Supreme Court in Hollingsworth v. Perry (Case No. 12-144), proponents of Proposition 8 did not emphasize the original education rationale for the measure, though they did stress that “the traditional definition of marriage furthers society’s vital interest in responsible procreation and child rearing.”

The appeal cited a 1952 California Supreme Court opinion that marriage “channels biological drives that might otherwise become socially destructive into enduring family units to ensure the care and education of children in a stable environment.”

Meanwhile, among several appeals involving the federal Defense of Marriage Act available to them, the justices accepted one from President Barack Obama’s administration. The appeal urges the court to rule that DOMA’s definition of marriage for the purpose of federal benefits as covering only opposite-sex unions violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state.

The case of United States v. Windsor (No. 12-307) involves Edith Windsor, an 83-year-old New York state woman who in 2007 married Thea Speyer, her partner of more than 40 years, in Canada. Spyer died in 2009, and Windsor is seeking a refund of some $363,000 in estate taxes that she would not owe if federal law had treated their union the same as those of opposite-sex couples.

The Obama administration is actually on Windsor’s side because of its 2011 decision to stop defending the constitutionality of DOMA, and the law will be defended in the Supreme Court by the Bipartisan Legal Action Group, a group made up, despite its name, of Republican members of the U.S. House of Representatives.

While the DOMA case has less specific connection to education, the issue of gay marriage generally has been one of growing recognition for schools and educators.

In 2011, the Brigham Young University Education and Law Journal devoted an entire issue to gay marriage and the schools, with articles about the significance the issue has for students, parents, teachers and other staff members, curriculum, and other matters. (Unfortunately, the articles are not available for free online.)

Arguments in the two cases are likely to be held in March, with a decision expected by late June.

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