What the marriage equality ruling REALLY means for education

Rick Hess is out with an analysis of the implications of the Supreme Court’s ruling in Obergefell v. Hodges, last week’s landmark ruling that legalized same-sex marriage nationwide. While I think Rick is generally thoughtful, and he tells me that he is personally not opposed to marriage equality, this is among the more hysterical (in all senses of that word) posts I’ve read with respect to any education issue by someone as prominent as Rick. I hate to fall back on the same old technique of parsing each line of other people’s writing, but this piece simply demands that treatment. Suffice it to say that I think his piece is stunningly paranoid, and while I suspect a few of his post-apocalyptic fantasies about schools post-#LoveWins may come to fruition, most will not (and the ones that will are things that absolutely should happen and will benefit children).

He starts:

Like fascists, Communists, and boy-band producers, the American Left has always believed it could fine-tune human nature if it could only “get ’em while they’re young.” That’s why the Left works so hard to impose its will on schools and universities.

I mean, I don’t know where to begin. Yes, of course liberal people try to persuade young folks that our positions are better than conservative positions (as, in fact, they are). Conservatives do this too. What’s your point? And on the issue of marriage equality, the conservative position has lost very, very badly, and that’s with virtually no school-based indoctrination that I can think of (if anyone’s to blame for this extremely positive outcome, it’s probably the media).

As John Dewey, America’s high priest of educational progressivism, explained in 1897, the student must “emerge from his original narrowness” in order “to conceive of himself” as a cog in the larger social order.

I don’t know what this means. But it sounds spooky.

Last week’s gay-marriage ruling will yield a new wave of liberal efforts to ensure that schools do their part to combat wrong-headed “narrowness.” Justice Anthony Kennedy’s sweeping 5–4 decision in Obergefell v. Hodges opened by declaring, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Kennedy took pains to opine that marriage “draws meaning from related rights of childrearing, procreation, and education.” In finding that the Fourteenth Amendment secures the right to “define and express [one’s] identity,” the Obergefell majority has issued a radical marker. (If gay marriage had been established by democratic process, things might have played out in a more measured manner.)

This “democratic process” thing is a canard, plain and simple. First off, public support was already on our side. Second off, that’s not how you do equal rights. You don’t wait around and let people vote to see if a minority gets a fair shake. Couples in 13 states were waiting. Suppose one of them dropped dead while we were waiting around for the majority to give them their rights, and as a result they were denied spousal estate benefits. I guess the answer from the Alito camp is “fuck ’em,” but I think most people would say that it’s abhorrent to sit on our hands and wait until the majority decides it’s finally time to grant people their constitutional rights.

Justice Samuel Alito predicted, “Today’s decision . . . will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” and “they will risk being labeled as bigots and treated as such by governments, employers, and schools.” Alito is almost assuredly right, and that poses serious questions for schools and colleges.

Alito is indeed right. I’ve been calling opponents of same-sex marriage bigots for a long time, because that’s a bigoted view. Though I don’t generally call them that to their faces, because I find that’s not a strong debate tactic. We all have the right to express ourselves, but we don’t have the right to be absolved of the consequences of that expression. If I said I thought interracial marriage shouldn’t be allowed, I would rightly be called a bigot. So, yes, people and businesses and states that do things that are bigoted will probably see negative responses.

At the collegiate level, the implications are pretty clear — especially for religious institutions. Christian colleges are going to find their nonprofit tax status under assault unless they agree to embrace gay marriage. (The relevant precedent is the 1983 Supreme Court ruling that enabled the IRS to strip Bob Jones University’s tax-exempt status because of the school’s ban on interracial dating.)

Well, yes, institutions that take federal funds and use them to violate the Constitution shouldn’t get those funds anymore. I doubt there will be a huge rush to hold gay weddings in Bob Jones’ chapel, but I certainly could be wrong. If there is, and if a religious institution decides it can’t avoid violating my constitutional rights, then that institution should be prosecuted. That’s how this works (though I’m no Constitutional scholar).

Policies regarding “family housing,” employee benefits, use of chapels for marriages — all will come under fire. And then we’ll start getting to questions of readings, campus programs, and curriculum, where familiar First Amendment rights will clash with the new Fourteenth Amendment right to “define and express [one’s] identity.” For religious colleges stripped of their nonprofit status, many — if not most — will be compelled to close their doors. (It’s safe to say that plenty of progressives would regard this development as a bonus).

I am agnostic on whether any particular college stays open or is closed. I don’t think it’s likely that the federal government will suddenly become closely involved in colleges’ readings or curricula–is that something that happens now?

More broadly, the Chronicle of Higher Education reports that gay-rights advocates believe the decision will “help them move on to other issues, such as access to higher education and mental-health concerns for young LGBTQ students of color and transgender students of color.” Shane Windmeyer, executive director of Campus Pride, said, “I’m hopeful we can now say we won one game; now the next game is looking at trans rights, how we treat queer people of color, especially first-generation LGBTQ students of color.”

Mental health care for students?!? The horror!

LBGT crusaders are also pushing for big changes in K–12 public schooling. Education Week’s legal-affairs reporter noted that the decisions “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.” I can’t say with certainty what’s coming. But here are four things to watch for. Educators have long celebrated “diversity.” Now they can expect heightened pressure to do more, and to ensure that nothing stymies a student’s “identity.” When a tiny handful of social crusaders complain that this play feels too stereotypically masculine or that those stories don’t include enough LGBT students, they’re going to pull Obergefell out of their pocket. Things will prove particularly contentious in history, where a dearth of gay marriages and nontraditional families will invite creative efforts to “balance” things out.

This is some really bogeyman stuff. I guess it’s bad if we have a curriculum that represents the diversity of our students? I fail to see how a ruling that my love is the same as Rick’s will have ripple effects in terms of causing schools to make dramatic curriculum changes in favor of more gay inclusion. That trend is probably already happening in liberal places. But again, even if that did happen, it’s almost certainly a good thing, especially for gay kids who are more likely to be bullied and commit suicide. Still, I’d bet that in the vast majority of non-ultra-liberal places, nothing like this will come to pass any time soon.

School leaders have judged that American flag T-shirts are unacceptably provocative when worn on Cinco de Mayo. Clothing and artifacts perceived as hostile to another’s “defined and expressed” identity, such as badges of religiosity, may well come under the closest of scrutiny. After all, the Court has long held that freedom of speech and religion may be circumscribed in educational settings. Now, protestations on behalf of free expression and free speech can be answered with Fourteenth Amendment claims.

If he’s talking about a student wearing something that displays a cross, I can’t see that coming under any more fire than it would have pre-Obergefell. If he’s talking about a shirt that says “homosexuality is not okay,” then yes, that shouldn’t be worn in a school (just as we would not allow a student to wear a shirt that says “women belong in the kitchen,” “men are rapists” or “white people are racists”). Getting those things out of schools will absolutely make schools a better place for children.

Expect demands for schools to amp up their efforts to feature “nontraditional” families in all kinds of contexts. Schools may be scrutinized for the mixture of families that wind up in posters, brochures, student art displays, instructional materials, and the rest. Failure to include a satisfactory percentage of gay parents (or other nontraditional family groupings) may be judged evidence of a hostile environment.

The first sentence is probably true, though a continuation of existing trends (have you seen advertising recently? Big corporations were ALL OVER this ruling, very clearly showing the business community thinks this decision was the right one [perhaps for their bottom line, but whatever]). The rest of this is absurd. Companies naturally want to include images of diversity on their products because, you know, we’re a really diverse country (and it will probably also result in better sales). There will not be a gay family gestapo that goes around counting posters with straight vs. gay couples in them.

And casual language will have to change. Teachers may instinctively ask a volunteer father about his wife or mention mothers and fathers; when they do, it won’t be long until a sensitive parent decides that this kind of “heteronormativity” is an unconstitutional violation of their identity. Pity the poor assistant principal who knows two parents are attending a meeting and mistakenly asks the woman sitting in the office if her “husband” is running late — rather than asking about her “spouse.” In the wrong circumstances, that could be a career-ender. Minimizing such mistakes means schools will soon be at pains to replace the terminology of “moms and dads” with that of genderless dyads.

Yes, language will slowly change, as people stop assuming things about other people. That’s a good thing, obviously. Speaking as someone who gets asked about my wife all the time (no, really, and I think I’m about a 12 on the Kinsey scale), I can tell you it doesn’t bother me in the slightest when it happens. I simply respond with “My husband does XYZ,” and the person realizes that I’m, in fact, married to man. And it’s no big deal, because I’m an adult and people make assumptions. No one’s going to get fired because they accidentally use the H word rather than the W word. Now if they respond with “Oh, you’re married to a man? That’s disgusting, you sinful pervert,” and if I have authority over their job, then yes, it might be a problem for them. But otherwise, come on. This is again totally paranoid and simply will not happen in any reasonable number of cases (and certainly not more than the number of gay people who are discriminated against in employment every day in this country, because that’s perfectly legal in the majority of states).

America’s principals, superintendents, and school boards generally don’t have a lot of stomach for waging these fights. Even those who hate being bullied don’t want the exhausting slog or public criticism. Far more likely is that they’ll pack it in, lending Justice Kennedy’s rhetorical flourishes a practical import even he may not have imagined.

Translation: “Bigoted people will realize that being bigoted and suffering the consequences probably isn’t worth it, so they’ll be less bigoted or just internalize their bigotry.” Another positive outcome! And, actually, I would be almost certain that support for this decision is higher among educators than the general public, as I think the vast majority of educators do not hold bigoted views.

The long and the short of it is that there’s really no “there” there with any of this stuff. Most of it simply will not happen, and the stuff that will happen will make our schools better for kids. And more to the point, what the consequences are for schools are mostly irrelevant to the merits of the case. And on that, we are moving toward consensus–that my marriage is the same as Rick’s. Hopefully the readers at NRO will soon join the 60% of us who already know that to be true.


2 thoughts on “What the marriage equality ruling REALLY means for education

  1. “We all have the right to express ourselves, but we don’t have the right to be absolved of the consequences of that expression.” Well said. It never ceases to amaze me how many people seem to think the First Amendment includes the right to a quietly deferential audience.

    As a teacher, I was struck by some other things in Hess’s column that seemed ridiculously out of touch.

    First, school employees who actually care about kids years ago stopped assuming or speaking as if every kid has a mom and a dad at home, because that is a) stupid and b) hurtful. No kid should be treated as if people think their family is weird or deficient because their parent(s) died, got divorced and/or remarried, were never married in the first place, and/or include a same-sex couple. Even the first three categories alone probably cover a majority of kids; adding married same-sex couples post-Obergefell isn’t a stretch. Any adult with sense already looks up the NAMES of the family members listed for a child, and maybe notes whether they live in the same household. We have these things called computers now; it’s really not that hard. You can also inquire about the adult’s relationship to the child (which is what matters!), and refer to them as “Jose’s dad” or “Haley’s stepmother” or whatever. You don’t need to ask to see their marriage papers.

    Secondly, I really did try to read Hess’s article in good faith, so I was attempting to follow the arguments in each paragraph, and I was particularly struck by the paragraph about the Chronicle of Higher Education article because THERE WAS NO POINT. Apparently the writer felt that the mere existence of people trying to help LGBTQ students of color, and the idea that these students have any rights, were horrifying enough for the paragraph to stand on its own as an anti-Obergefell point. Which sort of gets us back to the bigot thing.

    Liked by 1 person

    • “as if every kid has a mom and a dad at home” was actually meant to refer to the National Review fantasy world: “as if every kid has a married mom and dad at home”. Also, the list of other types of families and households was not meant to be complete, just a set of examples of some of the more common exceptions.


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