Marriage equality ruling reaches into schools

What schools do as employers and how they negotiate parental rights will change under Obergefell, yet the decision is silent on curriculum — which may give rise to future cases.

On June 26, 2015, the U.S. Supreme Court released its landmark decision on marriage equality. In Obergefell v. Hodges, 14 same-sex couples and two men whose partners had passed away claimed a violation of the U.S. Constitution when they were denied the right to marry or to have their lawful marriages recognized by all states. The U.S. Supreme Court agreed and held that the U.S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when the marriage was lawfully licensed in another state. Specifically, the Court stated, “The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection clauses of the Fourteenth Amendment, couples of the same sex may not be deprived of that right and that liberty.” The 5-4 decision was written by Justice Kennedy and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented, writing several separate opinions.

Certainly this case is important from a civil rights perspective. And Obergefell will affect schools as employers, educational institutions, and institutions that serve children and families.

For schools as an employer, Obergefell primarily has human resource implications — benefits and taxes. School districts should now provide employees with same-sex spouses the same benefits provided to other married employees, including federal, state, and district-conferred benefits: health, retirement, insurance, health care savings accounts, family leave, and leaves of absence.

Obergefell will affect schools as employers, educational institutions, and institutions that serve children and families.

For example, when both members of a married couple have rights to take child care leave, now both members of a same-sex married couple will have the right to take child care leave. Married same-sex couples will have access to health care coverage under their spouse’s policies. States will need to recognize same-sex couples as married when they file their income taxes. Every policy and benefit that refers to marriage and spouses should be reviewed to ensure that future benefits will be equally provided. References to “husband” and “wife” should be changed to the more inclusive term of “spouse.”

In addition, Obergefell will have an effect on schools as they recognize parental rights. One of the couples who brought this case has four adopted children.. However, their home state of Michigan would only recognize one woman and one man as parents in the adoption process. They could not both adopt all four children, so one of them adopted two of the children, and one adopted the others. This meant they did not both have legal rights and responsibilities for their four children. You can imagine the complications involved in raising children: Parents need access to health and education records. This is not an unusual situation across the nation. The Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy at the UCLA School of Law estimates that 122,000 same sex couples are raising over 200,000 children under the age of 18. Defining parental rights — access to records and providing legal authority for services and care — is incredibly important in the relationship between schools and families. And now this legal issue has been clarified. Schools will need to review all policies and procedures to ensure these families are treated the same as other married couples in terms of access to records and authority over their children.

There is no requirement to teach about these issues or their legal background, but, of course, we can expect this question to be raised.

Will schools need to change curriculum in response to the decision even though the case does not have any direct curricular effect? Since the case deals only with access to and the recognition of marriage, there is no indication that schools would need to balance curriculum or materials to represent a diversity of families. There is no requirement to teach about these issues or their legal background, but, of course, we can expect this question to be raised in daily practice.

Similarly, Obergefell isn’t likely to drive schools to change their policies and practices around student organizations, such as gay/straight alliances. For a number of years, it has been clear that the Equal Access Act, 20 U.S.C. 4071 (1984), requires schools to treat student-initiated organizations without bias. A guidance document from the U.S. Department of Education states, “The Equal Access Act requires public secondary schools to treat all student-initiated groups equally, regardless of the religious, political, philosophical, or other subject matters discussed at their meetings. Its protections apply to groups that address issues relating to LGBT students and matters involving sexual orientation and gender identity, just as they apply to religious and other student groups” (2011).

The decision in Obergefell already has been met with resistance in many ways: Some local officials have refused to issue marriage licenses, some private businesses have refused to provide services for weddings, etc. We have seen public refusal to abide by a civil rights decision before, most notably historic responses to the U.S. Supreme Court’s order to desegregate public schools. So public reaction and some official stalling should not be a total surprise. In the opinion, the Court anticipated this and clearly rejected the suggestion that it should take a slow or cautious path to recognizing marriage equality. The Court also recognized the First Amendment rights of those who disagree with the decision for ideological or religious reasons but did not find that those disagreements should change its decision.

The Court ended the decision with an unusually emotional defense of marriage:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.