The Impact of Gay Marriage on Educational Matters

• In Event: 61.072 - Toward Justice for LGBT Students and Parents: Law, Policy, and Praxis

Abstract

Allison Fetter-Harrott, Franklin College

Maria Lewis, University of Wisconsin, Madison

Objectives
The panelists will examine the intersection of marriage equality issues and schools, including the impact of marital status on parenting authority and the contours of First Amendment protection for student speech relating to homosexuality. Panelists will discuss how the characterization of same sex marriage as either a political issue or a legal issue may affect LGBTQ student rights and curricular decisions.

Perspectives
Last summer, the Supreme Court decided United States v. Windsor, a challenge to section 3 of the Defense of Marriage Act (DOMA), defining marriage as a union between a man and a woman. This narrow definition denied legally married same sex couples over 1,000 federal benefits. The Court ruled DOMA violated states’ authority. Furthermore, DOMA was motivated by animus and was intended to treat legally married same sex couples as second class citizens.

Beneath a sterile analysis grounded in states’ rights, Windsor emphasized the emotional implications of DOMA’s marriage definition. The opinion mentions “dignity” in some form twelve times, evidencing additional concern for the harm marriage denial imposes on families headed by same sex couples.

Data Sources
This paper will analyze case law and statutes to illuminate the intersection of marriage equality and education.

Selected Findings and Conclusions

Although a victory for marriage equality, Windsor left issues unresolved. For example, for the purposes of financial aid, how is marriage defined? Who may access educational records under the Family Educational Rights and Privacy Act? Who has parental rights under the Individuals with Disabilities Education Act? These questions are complicated in states that fail to recognize same sex marriage or forbid same sex adoption. The paper will address these gaps, identifying authority guiding schools, parents, and others.

Beyond the definition of marriage, the legal status of same sex marriage may have additional implications in schools. Schools expect the tide of same sex marriage recognition to add to classroom discussions. While legislatures, voters, and courts increasingly value same sex marriage, courts have been consistently protective of anti-gay student speech under the First Amendment, especially when that speech is motivated by purportedly religious or political expression.

Furthermore, the Court’s emphasis on dignity in Windsor serves as motivation to revisit cases such as the Seventh Circuit’s Zamecnik v. Indian Prairie School District (2011), finding as protected free speech a student’s t-shirt reading “Be Happy, Not Gay.” In Zamecnik, the court dismissively compared sexual orientation to a belief, rather than a core aspect of identity affecting one’s dignity. The Zamecnik court characterized same sex marriage as “highly controversial,” thereby implicating a school districts’ obligation to expose future voters to diverse viewpoints. However, recent court decisions indicate that marriage equality may not be a political issue, but a legal rights issue, better left to courts, not voters.

Significance
The legal landscape around marriage equality is changing rapidly, thereby creating murky waters for school districts and universities.

Authors

• Allison Fetter-Harrott, Franklin College

• Maria Lewis, The Pennsylvania State University - University Park