Law & Courts

Parent, School Issues at Stake in Same-Sex Marriage Fight

By Mark Walsh — April 21, 2015 7 min read
Two same-sex couples from Kentucky are among those challenging state marriage laws before the U.S. Supreme Court. Paul Campion, left rear, and Randy Johnson, with children, from left, Tevin Johnson-Campion, DeSean Johnson-Campion, Mackenzie Johnson-Campion, and Tyler Johnson-Campion.
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As a teacher and now a school counselor in Louisville, Ky., Paul Campion has observed that students, educators, and community members have grown more accepting of gay people in recent years, but at a Southern pace.

A gay father with four children in the household he shares with his husband, Randell Johnson, Mr. Campion is seeking to prod his state toward accepting same-sex marriage. He and Mr. Johnson, along with five other same-sex couples, sued Kentucky over its refusal to license or recognize such unions. Their cases, along with similar ones from Michigan, Ohio, and Tennessee, go before the U.S. Supreme Court on April 28.

The debate over gay marriage holds an array of implications for the nation’s schools, including in the areas of employee benefits, parental rights of access, and even its effect on school atmosphere for gay youths.

From left, parent Michael De Leon; son Isaiah, 17; parent Gregory Bourke; and daughter Isabella, 16.

“In the public schools around here, it’s mum’s-the-word on gay issues,” said Mr. Campion, a 49-year-old elementary school counselor in the Jefferson County school system, which includes Louisville. “We are still in the South, and there is a lot of religious condemnation [of the gay community]. I think it’s been a slow evolution here.”

In multiple cases consolidated under the one from Ohio, called Obergefell v. Hodges (No. 14-556), the justices have teed up questions that could lead to historic decisions by the end of June: whether the U.S. Constitution requires states to license marriages between two people of the same sex, and whether the states must recognize such unions performed legally elsewhere.

Mr. Campion and Mr. Johnson, a 47-year-old hospital administrator, sued Kentucky over the question of recognition. They were married in California in 2008, at a time when same-sex marriage was initially legal in that state before later court rulings settled the matter. They have lived in Louisville for 23 years.

Mr. Campion is the sole adoptive father of three sons—20-year-old twins, now in college, and a 16-year-old who has attended a public elementary school and is now in a Roman Catholic high school. Mr. Johnson is the adoptive father of an 11-year-old girl, who attends public school.

The state’s prohibition on same-sex marriage means the couple may not jointly adopt all the children, raising a host of practical issues when it comes to their children’s medical care and education. Mr. Campion and Mr. Johnson have always vetted their children’s schools carefully to be sure they would both be informally viewed as parents of all four children.

“We firmly believe we are just like any other family in the country,” said Mr. Johnson. “We shouldn’t be treated any differently.”

Educational Outcomes

Public attitudes have shifted dramatically toward acceptance of gay marriage in recent years, especially since the Supreme Court’s 2013 decision in United States v. Windsor. That ruling struck down a provision of the federal Defense of Marriage Act barring same-sex partners from the definition of “spouse” under federal law. Windsor led to new legal challenges in the states, and whether by legislative act or court ruling, same-sex unions are now legal in at least 37 states and the District of Columbia.

“The American people have moved on this issue, and we all feel the momentum of the [Supreme] Court to finish the job,” Evan Wolfson, the president of Freedom to Marry, a New York City-based group backing same-sex marriage, said in an interview.

Family-Rights Issue

Educators are closely watching the outcome of four cases being heard by the U.S. Supreme Court on April 28 regarding the constitutionality of same-sex marriage, with implications for parental and family rights in a school context. These cases, involving four states, all come from the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, which last year upheld all four states’ prohibitions on such unions. The arguments will focus on whether the 14th Amendment of the U.S. Constitution requires a state to license a marriage of two people of the same sex and whether it requires a state to recognize a same-sex marriage that was lawfully performed out of state.

KentuckyBourke v. Beshear
Two couples challenged the state’s 2004 state ballot initiative that amended the state constitution to make only marriages between “one man and one woman” valid in the state. Four other same-sex couples were married elsewhere and sued to seek recognition of the unions by the state.

MichiganDeBoer v. Snyder
One couple—female nurses who have adopted young children with special needs and served as foster parents to others—sued to challenge Michigan’s 2004 state constitutional amendment and several earlier state statutes that limit marriage to a man and a woman.

OhioObergefell v. Hodges
Several plaintiffs challenged the state’s refusal to recognize their same-sex marriages from other states. Two are widowers seeking recognition as the surviving spouses of their late partners. Three couples who were expecting babies (with three using anonymous donor insemination) sued to ensure their children had birth certificates recognizing both parents. Another couple wed in and residing in New York state adopted a baby born in Ohio and seek recognition of both parents on adoption papers.

TennesseeTanco v. Haslam
Three same-sex couples who moved to Tennessee after being lawfully married elsewhere are challenging a 1996 state statute and 2006 state constitutional provision that deny recognition to out-of-state same-sex marriages.

SOURCE: Education Week

John C. Eastman, the board chairman of the National Organization for Marriage, a Washington-based group that opposes the legal recognition of same-sex marriage, noted that the opponents include 21 states, numerous religious organizations, and millions of Americans who have voted for state prohibitions.

He touched on a theme that runs throughout briefs from the opponents: that same-sex marriage has, at best, an unknown impact on the children in such families.

“It’s clear to me that the harm to children and society from the redefinition of marriage has not received as much attention as it should,” Mr. Eastman said in an interview.

In a Michigan case being taking up by the high court, the question of the impact of same-sex marriage on children, including on their educational outcomes, received particular attention. Michigan’s prohibition on licensing of same-sex unions was challenged by April DeBoer and Jayne Rowse, a lesbian couple who between them have adopted six young children, several of whom have special needs. The couple also serve as foster parents to other children.

In a 2014 trial in federal district court in Detroit, the state of Michigan called as a witness Mark Regnerus, a sociologist at the University of Texas-Austin, who testified about research he had conducted in 2012 suggesting negative educational outcomes for children in same-sex households.

But the research, called the New Family Structures Study, was criticized at the trial by academics on the challengers’ side for drawing an unfair comparison between children raised by parents who happened to engage in some form of same-sex relationship and those raised by intact biological families. Trial testimony also revealed that the study was financed by opponents of same-sex marriage.

“The court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration,” U.S. District Judge Bernard A. Friedman wrote. Michigan did not mention Mr. Regnerus or his study in its Supreme Court brief. (The sociologist has defended his study and denied that its funders influenced the findings.)

The plaintiffs, meanwhile, called Stanford University sociologist Michael J. Rosenfeld, who discussed his 2010 study, “Nontraditional Families and Childhood Progress Through School.”

Judge Friedman said that Mr. Rosenfeld’s testimony was “highly credible” and that “his research convincingly shows that children of same-sex couples do just as well in school as the children of heterosexual married couples, and that same-sex couples are just as stable as heterosexual couples.”

His ruling was appealed, however, and the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, last year upheld the same-sex-marriage prohibitions of Michigan and the three other states now before the high court.

School Choice

Across the four states, the plaintiffs challenging bans on same-sex marriage include medical professionals, business executives, a technology consultant, a loss-prevention specialist, a Wal-Mart employee, a U.S. Army sergeant, a retired accountant, a retired optician, and one K-12 educator, Mr. Campion.

He is a former teacher who has been a school counselor in the 101,000-student Jefferson County district since 2006. Among his duties, Mr. Campion works with elementary school students on character development and study skills, and, when necessary, provides grief counseling. He leads special education meetings to develop individualized education programs for students with disabilities.

“As a counselor, I have seen a growing number of same-sex couples raising kids together,” he said.

When it comes to their own children, Mr. Campion and Mr. Johnson have used both public and parochial schools. Mr. Johnson said the couple has always interviewed school administrators to make sure both parents would be treated equally, despite the split adoption status.

“We remain vulnerable if they choose to discriminate against us,” Mr. Johnson said.

Both had praise for how the Catholic schools in Louisville have respected same-sex parents.

“In a lot of ways, the Catholic schools are more prepared and proactive in embracing diversity,” Mr. Campion said.

That sentiment is echoed by the other Kentucky couple in the case with school-age children. Gregory Bourke, 57, a data-analytics expert for the health insurer Humana Inc., and Michael De Leon, 56, an information-technology project leader for General Electric Inc., have 17- and 16-year-old children. They married in Canada in 2004. Mr. De Leon is the legal adoptive father of both, and Mr. Bourke is a legal guardian but cannot be an adoptive parent of them under Kentucky law.

“The whole gay issue, we thought, was going to be more of a religious issue for our kids, but they never ran into a teacher or administrator who took a really hard line about Catholic doctrine,” Mr. Bourke said in an interview.

Need for Procreation

The nation’s Roman Catholic bishops remain officially opposed to same-sex marriage, and they have filed a friend-of-the-court brief in support of the four states.

The state of Kentucky argues in a brief that the need for procreation is a rational basis for state laws limiting marriage to those of the opposite sex.

“It is entirely rational for Kentucky to limit the granting of tax and other benefits to the broad class of opposite-sex couples in furtherance of population growth, even though not all opposite-sex couples may choose to, or can, have biological children,” it said.

The Family Foundation of Kentucky, a Lexington-based group that pushed for the state’s ban on same-sex marriage, supports the state.

“We believe the best argument is that it is a rational belief that the best place to raise children is in a family with a biological mother and father,” Martin Cothran, a senior policy analyst with the foundation, said in an interview.

Mr. De Leon said he and other gay parents have trouble understanding such arguments.

“Most states have a huge need for foster care of children from people who have procreated but can’t raise those children,” he said. “They’re fighting a group of people who could be a huge resource for those children.”

A version of this article appeared in the April 22, 2015 edition of Education Week as Parent, School Issues at Stake in Same-Sex Marriage Fight

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