The U.S. Supreme Court recently ruled that the U.S. Constitution guarantees a right to same-sex marriage under both the Due Process and Equal Protection Clauses of the 14th Amendment as a result of the Obergefell v. Hodges case decision. Although the decision addresses marriage, there are certainly some implications for public schools. Justice Anthony Kennedy noted in the decision that marriage “draws meaning from related rights of child rearing, procreation, and education.” The legal affairs reporter from Education Week stated that this decision “holds various implications for the nation’s schools, including in the areas of employee benefits, parental rights of access, and the effect on school atmosphere for gay youths.” According to the 2012 census, there are about 594,000 same-sex couple households in the United States, and about 6 million people have a parent who is lesbian, gay, bisexual, or transgender (LGBT).

Impact on Employment Issues

The Supreme Court’s recent decision on marriage equality guarantees same-sex couples the same rights and benefits available to opposite-sex couples. The outcome of the decision represents a significant change in law and policy for some states and, in turn, school districts.

Consequently, the National School Boards Association (NSBA) and other education groups created a guide to help school districts understand the impact of the decision on school board policy. This guide provides an overview of employee benefits, including the right to receive the same benefits that opposite-sex spouses receive under federal, state, and local laws and policies. The report stresses that the ruling also affects collective bargaining agreements. Although the Obergefell decision provides clarity on the issue of marriage equality, the opinion left a number of questions unanswered. For example, is LGBT discrimination permissible under existing law? 

Currently, there is no federal law in place that specifically protects people from workplace discrimination based on sexual orientation; Title VII of the Civil Rights Act of 1964 protects people only on the basis of race, national origin, religion, sex, age, and disability. Some administrative agencies and courts have begun to interpret Title VII to cover sexual orientation discrimination claims. For example, the U.S. Equal Employment Opportunity Commission (EEOC) has determined that Title VII covers discrimination against LGBT employees; however, the EEOC’s interpretation is not binding in courts. Some public educators have also successfully relied on the Equal Protection Clause of the 14th Amendment in cases involving discrimination based on sexual orientation in the workplace.

According to the Human Rights Campaign, 19 states provide clear nondiscrimination protection to LGBT people in the form of general laws that apply in various contexts such as service, housing, employment, etc. Because the Obergefell decision did not specifically address discrimination in employment, teachers who are in a same-sex marriage may face legal uncertainty when it comes to discrimination in the workplace if there is no state law or district policy in place offering specific protections.

Impact on Curriculum

The Obergefell decision will likely change the way teachers discuss and treat LGBT families in public schools. Even before this decision, some states undertook efforts to create an LGBT-inclusive curriculum that included families with same-sex parents and information about the gay rights movement. For example, in California, the FAIR Education Act of 2012 called for individuals with disabilities and LGBT families to be represented in the curriculum. This type of inclusion in curricular matters will likely expand in light of the decision. In fact, shortly after the Obergefell decision, the National Education Association and the Human Rights Campaign disseminated a short article on how educators might approach marriage equality with students, titled “Who Can Marry Whom?” The Anti-Defamation League has also published material for educators. The Gay, Lesbian & Straight Education Network (GLSEN) released a curriculum designed to present same-sex marriage as a topic area in high schools, too. In light of Obergefell, it would seem that if a curriculum includes information about families, families headed by a same-sex couple should be included in this discussion.

Of course, the changes to the curriculum are not without controversy. Some parents have argued that discussing LGBT families in public schools offends their religious beliefs. As a result, we will likely see more requests for exemptions that allow parents, students, and teachers to opt out of curricular activities based on religious freedom arguments.

School Atmosphere for Gay Youth

It is well documented that LGBT youth are bullied and harassed at higher levels than their heterosexual peers, which has been linked to negative outcomes (e.g., higher suicide rates). A study published by the American Journal of Public Health highlights how supportive school climates can help remedy some of these negative outcomes. 

It is likely that the Obergefell decision will encourage schools to tolerate even less hostility toward this vulnerable population and will, in turn, improve school climates. Returning to a theme he addressed in United States v. Windsor in 2013, Justice Kennedy expressed concerns in his Obergefell opinion about the effects of state policies against same-sex marriages on children, though he focused on those children in households with same-sex parents. He wrote that “without the recognition, stability, and predictability marriage offers, [same-sex couples’] children suffer the stigma of knowing their families are somehow lesser.” So, it has been left to others to point out that legal recognition of same-sex marriages has a secondary effect of offering LGBT youth a future that includes the ability to form relationships that will be accorded full legal status. 

The Family Equality Council filed an amicus, or friend-of-the-court, brief in the Obergefell case for which it interviewed LGBT youth and quoted the various testimony of others, putting a personal stamp on the idea that not just same-sex parents and their children would see direct benefits from a ruling in favor of same-sex marriage. “These young people’s perceptions of their futures are powerfully influenced by what the government tells them about the validity of the committed relationships they hope to form throughout their lives,” according to the council’s brief. “By officially sanctioning their exclusion from marriage,” the brief added, “the state laws exacerbate feelings of hopelessness about the future and perpetual ‘differentness’ that many LGBT youth already feel, discouraging them from aspiring to full participation in civic life.” LGBT students might now feel more hopeful about their “differentness” both inside and outside of school.

Maria Lewis, PhD, is an assistant professor in the Education Policy Studies Department at Pennsylvania State University and an affiliate law faculty member at Penn State Law. 
Mark Walsh is a contributing writer to The School Law Blog at Education Week. 
Suzanne E. Eckes is a professor at Indiana University, co-author of Principals Teaching the Law, and co-editor of The Principal’s Legal Handbook. 

Sidebar: Recommendations for School Leaders

  • School officials should inform employees of the rights and benefits available after the Obergefell v. Hodges decision, review collective bargaining agreements, and work to update all forms and documents related to marriage.
  • School districts should use language on school documents that is inclusive of all types of families.
  • During sessions on bullying and harassment, hurtful name-calling related to family structure should be addressed. 
  • Discussions should include how teachers might address same-sex marriage in the classroom and in the curriculum.
  • Educational leaders should familiarize themselves with state laws and relevant case law to understand how LGBT discrimination is treated in their jurisdiction.

Editor’s Note: This article is intended as a summary of some of the legal issues surrounding the marriage equality decision and its impact on public schools. It does not constitute legal advice.