Same-Sex Marriage, Education, and Parental Rights

Abstract:     
In this paper, I explore the legal issues presented when parents object to teaching relating to same-sex marriage in the public schools. The current legal situation involving parental rights with regard to controlling the education of their children is quite bleak as a matter of federal constitutional law. The only real constitutional right of parents is to opt-out of the public school system altogether. Parents have very little right to opt-out of particular courses or classes, even when such curriculum offerings interfere with the religious freedom of parents and their children.

The solutions to this plight are not very promising. The existing legal doctrines don’t offer much support and, in any event, I don’t believe that either the free exercise or due process clauses, properly interpreted, should offer much support. There are solutions — rebuilding the culture, pursuing other remedies for conscience, and encouraging an emphasis on school choice with a focus on equitable funding — but these are more long-term. None of these seems to offer much of a prospect of immediate relief, although the legislative exemption strategy offers some prospect of success. Perhaps, though, the recent intense controversies about same-sex marriage will prompt an increasing focus on school choice.

Number of Pages in PDF File: 20

Accepted Paper Series