U.S.: Shielding Students Not Valid Rationale for Same-Sex-Marriage Ban

By Mark Walsh — March 01, 2013 2 min read
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Protecting schoolchildren from being taught about gay marriage is not a valid legal justification for a state law prohibiting such same-sex unions, President Obama’s administration told the U.S. Supreme Court in a brief on Thursday.

U.S. Solicitor General Donald B. Verrilli Jr. filed the brief in one of two major cases on same-sex marriage that the justices will hear arguments about in late March. The administration is a party in one case, United States v. Windsor (Case No. 12-307), though it no longer defends the federal Defense of Marriage Act that is at issue in that case.

In Hollingsworth v. Perry (No. 12-144), the case involving California’s Proposition 8, the administration was not required to file a brief, but it opted to chime in anyway.

Proposition 8 was a 2008 ballot measure that withdrew the right of same-sex couples to marry in that state. One of the original rationales that proponents offered was that the measure would protect “our children from being taught in public schools that ‘same-sex’ marriage is the same as traditional marriage,” as official voter guides put it.

The private California citizens defending Proposition 8 in the Supreme Court have abandoned the education rationale, focusing instead on arguments that the traditional definition of marriage furthers a state interest in responsible procreation and child-rearing.

Still, the Obama administration brief addresses the original education argument.

“Any such ‘educational’ interest cannot sustain Proposition 8,” the solicitor general says in his brief. “Insofar as the interest in insulating children from any lesson that same-sex marriage is ‘okay’ is founded on a moral judgment, that interest is inadequate under this court’s precedents.”

In any event, the brief notes, California public schools have not been required to teach anything in particular about same-sex marriage, either before or after Proposition 8, and under state law, schools and teachers are barred from offering instruction that discriminates on the basis of sexual orientation.

The key points of the administration’s brief are that government classifications based on sexual orientation should face a heightened standard of judicial scrutiny, and that Proposition 8 violates equal-protection principles.

“California has ... recognized that same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages: they establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death,” the administration brief says

“California’s extension of all of the substantive rights and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8,” the brief says. “It indicates that Proposition 8’s withholding of the designation of marriage is not based on an interest in promoting responsible procreation and child-rearing ... but instead on impermissible prejudice.”

The Hollingsworth (Prop. 8) case is scheduled for oral arguments on March 26. The Windsor (Defense of Marriage Act) case is set for March 27.

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