Download this Paper Open PDF in Browser

The Heart of the Constitutional Enterprise: Affirming Equality and Freedom in Public Education

21 Pages Posted: 9 Jan 2011 Last revised: 1 May 2012

William E. Thro

University of Kentucky

Date Written: July 17, 2011


Once you start dividing the community from whom the Constitution works into “goodies’’ and "badies," then I think you wander away from the heart of the constitutional enterprise. - Justice Albie Sachs, Constitutional Court of South Africa Justice Sachs wrote those words to describe his approach when writing the opinion establishing a constitutional right to same-sex marriage in South Africa. He did not want an opinion that regarded gay rights advocates as “a manipulative lobby group" or their religious opponents as "a bunch of benighted bigots." Rather, he wanted both sides to feel that their "convictions, values, and perspectives are being taken seriously and treated thoughtfully and with respect." While South Africa’s Constitution mandated a particular result, it was imperative that no individual feel isolated from the constitutional community. Affirmation of one constitutional value - no sexual orientation discrimination - could not eviscerate another constitutional value - freedom of religion. In other words, the Opinion of the Court must affirm both equality and freedom.

Although the South African Constitution is fundamentally different from the United States Constitution and although the South African Constitutional Court’s analytical approach is substantially different from that of the Supreme Court, Justice Sachs’ wisdom is equally applicable to America. Constitutional law is not a zero sum game. The affirmation of one constitutional value does not require the subordination or denial of another constitutional value. It is possible to have a strong National Government and maintain the sovereignty of the States. It is possible to have a vigorous and energetic President while respecting the clear prerogatives of both Congress and the judiciary. Most significantly, it is possible to have equality without sacrificing freedom. Indeed, ensuring the affirmation of both equality and freedom is the "heart of the constitutional enterprise."

As our Nation confronts demands for state recognition of same-sex marriage, our jurists and policymakers must heed Justice Sachs’ warning - do not divide the constitutional community. Regardless of whether government recognizes same-sex relationships and regardless of whether government describes that recognition as "marriage," the State must treat gays and lesbians as full and equal members of society. Our Constitution does not tolerate classes among its citizens. Statutes that criminalize certain sexual acts must apply with equal force to both homosexuals and heterosexuals. Similarly, even if every State eventually recognizes same-sex marriage, government may not prescribe what is orthodox in politics or punish religious belief. Government must not persecute People of Faith or undermine private charities. The affirmation of equality must not result in the subordination of freedom and vice versa. Rather, the Constitution must affirm both equality and freedom.

Affirming both equality and freedom is particularly challenging in the context of public education. Public education, whether in the context of K-12 or higher education, brings together people of different races, generations, socio-economic classes, faiths, and values. Indeed, public education arguably is the most diverse segment of American society. Moreover, the young frequently express themselves with rhetoric that is rough rather than refined and in a manner that is dramatic instead of dignified. Escalation is all too common and too easy. In this environment, potential for conflict and misunderstanding is exponentially greater than in society. Yet, gays and lesbians justifiably demand that government schools and universities treat them with dignity and equality. Similarly, people of faith and political dissenters understandably demand that their freedoms do not disappear at the schoolhouse gate.

This Article seeks to ensure public education does not "wander away from the heart of the constitutional enterprise" as our Nation grapples with same-sex marriage. Its purpose is to prevent public education from favoring equality over freedom or vice versa. It aims to promote the affirmation of equality for homosexuals and freedom for those who disagree with same-sex marriage. While a discussion of all the possible constitutional issues related to the consequences of state recognition of same-sex unions in public education contexts would be a monumental work and well beyond the scope of this Article, it is possible to articulate some general principles. Those general principles will guide jurists, policy-makers, and educational administrators.

This Article has three parts. Part I discusses the constitutional value of equality in the context of same sex marriage. Although government may not engage in irrational sexual orientation discrimination, the National Constitution does not require recognition of same-sex marriage. Rather, the States, in the exercise of their sovereignty, may choose to establish same-sex marriage, but are not required to recognize same-sex marriages performed in other States. Part II examines the constitutional value of freedom and its significance for those who have political or theological objections to state recognition of same-sex unions. These rights include the freedom of speech including the freedom of association, the freedom of parents to direct the upbringing of their children, and the freedom of religion. Part III explains how public education may affirm both the equality of homosexuals and the freedom of those who oppose same-sex marriage. Specifically, public schools and universities must refrain from sexual orientation discrimination, must respect the right of faculty to express positions on same sex-marriage, and must allow students, whether individually or in groups, to advocate on issues related to same-sex marriage. In some instances, student groups may have greater rights under the State Constitutions or state law.

Keywords: constitutional law, k-12 education, higher education, same-sex marriage, First Amendment, Religious Freedom, Equal Protection

Suggested Citation

Thro, William E., The Heart of the Constitutional Enterprise: Affirming Equality and Freedom in Public Education (July 17, 2011). 2011 Brigham Young University Education and Law Journal, 571 (2011). Available at SSRN:

William E. Thro (Contact Author)

University of Kentucky ( email )

Lexington, KY 40506
United States
859-257-2936 (Phone)
859-323-1062 (Fax)

Paper statistics

Abstract Views