Families & the Community

Same-Sex-Marriage Cases Hold Implications for Schools

By Mark Walsh — March 25, 2013 8 min read
Plaintiff Sandra Stier, center, listens to her partner, Kristin Perry after a court hearing in June 2011 that challenged California’s Proposition 8, which limits marriage to a man and a woman. The U.S. Supreme Court is hearing a pair of cases on the same-sex marriage issue.
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For Kristin M. Perry and Sandra B. Stier, the schools their children have attended have been one more place to be involved parents and a visible same-sex couple.

“I have been a PTA president and I volunteered in the classroom all the time,” said Ms. Perry, who noted that the family of two lesbian mothers and four boys—ages 18 to 24—has had mostly positive experiences in the liberal enclave of Berkeley, Calif.

“On a couple of occasions, I can remember a child would say a homophobic thing to one of our kids, and the teacher would use that as a teachable moment,” she added. “We are in a part of the world, on purpose, where we get a pretty positive response as a family.”

California Challenge

Still, Ms. Perry, 50, and Ms. Stier, 48, would like to be married. They are one of two couples who sued to challenge California’s Proposition 8, the ballot initiative narrowly passed in 2008 that withdrew the right to same-sex marriage in that state.

“When we go to a high school football game, the [straight] couples around us are talking about an upcoming anniversary or a mother-in-law visiting,” Ms. Stier said. “Because we’re not married, we’re excluded from some of the most common social constructs and from one of the core institutions of our society.”

This week, the U.S. Supreme Court takes up their case, Hollingsworth v. Perry (No. 12-144), which asks whether California’s limitation of marriage to a man and a woman violates the equal-protection clause of the U.S. Constitution. In a second case, United States v. Windsor (No. 12-307) the justices will weigh the constitutionality of the federal Defense of Marriage Act of 1996, or DOMA, which defines marriage for purposes of federal law and benefits as “only a legal union between one man and one woman as husband and wife.”

Among the scores of briefs filed by parties and “friends of the court” on different sides of those cases are several that address same-sex marriage and the schools. The issues include schools’ treatment of same-sex parents and their children, the impact of the debate on gay students and on those who object to same-sex marriage on religious grounds, and the influence of the trend on the curriculum.

In short, as with many other divisive social issues, the nation’s schools are part of the battleground over same-sex marriage.

“Marriage rights for same-sex couples is one of the great American debates right now,” said Suzanne B. Goldberg, a law professor and the director of the Center for Gender and Sexuality Law at Columbia University. “As such, it has important consequences for American education.”

View of Households

Nearly 1.3 million Americans are members of same-sex couples (regardless of marriage or other legal status), according to a friend-of-the-court brief filed by Gary J. Gates, a scholar at the Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy at the University of California, Los Angeles, law school.

Almost one-fifth of same-sex couples are raising children—more than 125,000 households, with a total of 220,000 children under age 18, according to U.S. Census Bureau data analyzed by Mr. Gates, a supporter of same-sex marriage.

Ms. Stier, who works in technology for a government agency in the San Francisco Bay Area, grew up on a farm in Iowa and had what she has described as a difficult marriage to a man for 12 years. She brought the two oldest boys into the relationship with Ms. Perry.

Ms. Stier first met Ms. Perry in 1996, when both worked for the same agency and were in a computer-training class together. Ms. Perry grew up in a small town in California. She has long worked in the field of child advocacy and is now the executive director of the First Five Years Fund, a Washington-based group that pushes for high-quality early learning.

Ms. Perry said the couple likely will move to the nation’s capital—where same-sex marriage happens to be legal—when their youngest sons, twins who are high school seniors in Berkeley, go to college next fall.

“These are rapidly changing times for educators,” Ms. Perry said. Public schools should let parents teach their children their own beliefs about same-sex marriage, she said, “but it is a good thing for students to have their families validated in school.”

Education Rationale

The couple recall a key line of argument put forth by proponents of Proposition 8 in 2008. In the official voters’ guides for the ballot initiative, sponsors said, among other points, that the measure was “simple and straightforward. … It protects our children from being taught in public schools that ‘same-sex marriage’ is the same as traditional marriage.”

That point, Ms. Stier contends, was a scare tactic designed to inflame public opposition to same-sex marriage. “I feel strongly about how hurtful that was,” she said.

Lawyers for the Proposition 8 sponsors dropped any reference to the education rationale from their main brief filed with the Supreme Court, instead focusing on arguments that the measure “advances society’s interests in responsible procreation and child rearing.”

But a final brief from the sponsors filed in reply to the other side’s arguments says that “there was nothing improper about the official Yes-on-8 campaign. … True, the campaign argued that Proposition 8 would ‘protect our children,’ but explained that it would do so by protecting the traditional definition of marriage, not by protecting children from gays and lesbians.”

“And it is hardly improper that Californians who in good faith oppose redefining marriage would also oppose their young children being taught that same-sex marriage is ‘the same as traditional marriage’ or otherwise ‘okay,’ ” says the brief filed by Washington lawyer Charles J. Cooper, a former assistant U.S. attorney general under President Ronald Reagan.

Ms. Perry and Ms. Stier were joined in their lawsuit by a gay male couple, Jeff Zarillo, 39, and Paul Katami, 40, of the Los Angeles area. They have no children, but have expressed the desire to adopt when they can legally marry.

The two couples are represented by the high-profile legal team of Theodore B. Olson, a former U.S. solicitor general and a well-known conservative, and David Boies, a liberal who had faced off against Mr. Olson in the Bush v. Gore election case in 2000.

They won in federal district court in San Francisco, in a 2010 ruling about Proposition 8 in which Judge Vaughn R. Walker said that the campaign had played on fears that children exposed to same-sex marriage in schools might become gay.

In also striking down Proposition 8 in 2012, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, also rejected the education rationale for the ballot measure. The judges held that nothing in California law before or after the proposition required the public schools to teach about same-sex marriage.

The private sponsors of Proposition 8 appealed the decision to the Supreme Court, and one issue for the justices is whether those sponsors have legal standing to defend the measure.

Lessons ‘Unavoidable’

Lynn D. Wardle, a law professor at Brigham Young University in Provo, Utah, said the 9th Circuit court was perhaps naive to think that the legalization of same-sex marriage would not filter its way into school curricula.

“It is unavoidable,” he said. “Whether [in lessons] about sex education, or relationships, or institutions in society, marriage pops up pervasively throughout the curriculum.”

Mr. Wardle, who helped write friend-of-the-court briefs in both the Proposition 8 and DOMA cases on the side of opponents of same-sex marriage, expressed concern that once a state recognizes same-sex marriage, the views of parents who object to their children learning about it will be cast aside.

He pointed to a 2008 decision by the U.S. Court of Appeals for the 1st Circuit, in Boston, in a case known as Parker v. Hurley. In that decision, the appeals court said a Massachusetts school district did not violate the rights of parents or children by exposing students to books promoting tolerance for same-sex marriage, including King and King, a book about a prince who wants to marry another prince. The court noted that the school district was seeking to “educate its students to understand and respect gays, lesbians, and the families they sometimes form in Massachusetts, which recognizes same-sex marriage.”

Meanwhile, the Becket Fund for Religious Liberty, a Washington-based group that often defends religious speech by students in public schools, filed a brief on the side of same-sex-marriage opponents that expresses concern for students who might object to gay marriage on religious grounds.

“Regardless of how the court rules, school administrators are still going to have people on both sides of this issue in their schools,” Eric Rassbach, the deputy general counsel of the group, said. “It would be a mistake for them to decide that religious views should be suppressed.”

Education groups that have filed briefs on the side of supporters of same-sex marriage say their concern is for how the debate will affect gay students and the children of same-sex couples.

Diverse Families

A brief from the California Teachers Association and its parent, the National Education Association, argues that Proposition 8 has undermined the California education code’s requirement that schools teach tolerance and respect for gay and lesbian students.

“By codifying animus into law, Proposition 8 lends legitimacy to the view that discrimination on the basis of sexual orientation is socially acceptable, further aggravating existing social tensions within schools,” the unions’ brief says.

Meanwhile, a brief filed by the Washington-based Family Equality Council, the New York City-based Gay, Lesbian, and Straight Education Network, and other groups argues that both Proposition 8 and DOMA stigmatize gay students and families headed by same-sex couples.

“The idea of what a family is has evolved enormously over the past several decades in this country,” said Emily Hecht-McGowan, the public-policy director of the Family Equality Council, which advocates for gay parents. “Many children do not come from intact families with a biological father and mother. They’re being raised by grandparents, stepparents, and same-sex parents.”

“The job of educators is to make sure all of those children feel validated and accepted,” she said.

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A version of this article appeared in the March 27, 2013 edition of Education Week as School Angles Seen in Same-Sex-Marriage Cases


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