Education Week - March 27, 2013 - 28

EDUCATION WEEK

MARCH 27, 2013

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Same-Sex-Marriage Cases Hold Implications for Schools
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 samesex 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 samesex 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 samesex 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-sexmarriage 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 Citybased 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.

HEATED NATIONAL DEBATE
The U.S. Supreme Court will hear arguments this week in two cases
dealing with same-sex marriage, an issue that holds implications
for schools in such areas as parental interaction, curriculum, and
tolerance. In addition to the constitutional questions presented, each
case raises procedural issues about whether certain parties have
the right to defend the laws at issue. That gives the high court an
array of options for resolving each case.
Hollingsworth v. Perry (Case No. 12-144)
The court will consider whether California’s Proposition 8, a 2008 ballot measure
that withdrew the right of same-sex couples to marry in that state, violates the U.S.
Constitution’s guarantee of equal protection of the law. The private sponsors of
Prop 8 are its defenders in the Supreme Court, and in a final brief, they stand by a
rationale originally put forth that the ballot measure would protect children from
being taught in public schools that gay marriage was equal to traditional marriage.
The challengers of the measure are two same-sex couples seeking the right to
marry. A number of friend-of-the-court briefs on their side emphasize the same-sex
marriage debate’s implications for schools’ treatment of gay parents (married or
not), their children (straight or gay), and gay and lesbian students.

United States v. Windsor (No. 12-307)
This case involves an equal-protection challenge to the federal Defense of Marriage Act
of 1996 brought by 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. Ms. Spyer died in
2009, and Ms. 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. Supporters of Ms. Windsor argue that the act stigmatizes families led by samesex parents and sends the message to gay youths that the federal government does not
consider their committed relationships equal to those of heterosexuals. Defenders of the
law argue, among other things, that the federal government’s support for the traditional
definition of marriage is rationally related to responsible child-rearing goals.
—MARK WALSH

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