The U.S. Supreme Court Rules in Favor of Marriage Equality: Can Gay Teachers Who Marry Still be Fired?

“[M]any Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools or boarders in their home” —Justice Antonin Scalia, dissenting (Lawrence v. Texas, 2003, p. 602).

In Obergefell v. Hodges (2015), the U.S. Supreme Court ruled in a 5–4 decision that the U.S. Constitution guarantees a right for same-sex couples to marry. Some commentators have noted how this opinion raises questions related to educational employment matters (see NSBA, 2015; Walsh, 2015). For example, after the Obergefell decision, LGBT educators might likely assume that they are now free to marry without fear of retaliation in their schools. Unfortunately, as evidenced by the quote above from Justice Scalia, discrimination against LGBT teachers is still prevalent. Hence, this issue has not been entirely resolved—especially in private schools. This commentary briefly examines legal protections for LGBT teachers in public and private schools.

BRIEF LEGAL BACKGROUND

FEDERAL STATUTORY PROTECTIONS

There is no federal law that specifically protects LGBT employees. Although Congress has considered such bills, one has yet to pass (see ENDA, H.R. 1858, 1997). Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of race, national origin, religion, sex, age, and disability. Interestingly, the Equal Employment Opportunity Commission (EEOC) recently determined that Title VII covers discrimination claims based on sexual orientation (Baldwin v. Department of Transportation, 2015). It is important to note, though, that the EEOC’s interpretation does not apply to private employers. In addition, courts are not bound by this interpretation.

STATE LAW

According to the Human Rights Campaign (2015), there are still 19 states that do not offer any protection to public or private employees who experience discrimination related to sexual orientation in the workplace. Moreover, even in states with legal protections for LGBT employees, there are fewer protections for private school teachers. Currently, only 20 states provide protections against LGBT discrimination in all employment. As a result, public school employees in 19 states and private school employees in 30 states have no safeguards at the state level to address discrimination based on sexual orientation.

CONSTITUTIONAL LAW

Public school teachers could argue that under the U.S. Constitution’s Equal Protection Clause of the Fourteenth Amendment, similarly situated teachers need to be treated the same. The U.S. Supreme Court has created three levels of judicial scrutiny (i.e., strict scrutiny, mid-level scrutiny, and rational basis) when analyzing an equal protection claim. Classifications based on sexual orientation are only subject to rational basis review. Under rational basis review, there must only be a legitimate government objective with a minimally rational relation between the means and the ends to uphold the policy. It is much easier, then, for a government policy to treat LGBT teachers differently than it would be to treat teachers of color differently than other similarly situated teachers. Racial classifications, for example, fall under strict scrutiny in review and require that the government policy demonstrate a compelling state interest and a demonstration that the classification is necessary to serve that interest—a much more stringent level of review than rational basis.

Justice Scalia provides a stark example of the kind of reasoning that might pass judicial muster under the rational basis test—despite being based on a completely outmoded understanding of sexual orientation. During oral arguments in a case involving a state law that criminalized sodomy (Lawrence v. Texas, 2003), Chief Justice William Rehnquist asked if it would be unconstitutional to deny the right of gay people to teach kindergarten. Justice Scalia interjected: “Well, the reason would be they don’t want them to lead children down the path of homosexuality” (Lambda Legal, n.d., p. 2).

LGBT TEACHER FIRINGS

In the past, when public school teachers were fired for being gay it was oftentimes under state teacher dismissal statutes that forbid teacher immorality (see Eckes & McCarthy, 2008; Gaylord v. Tacoma, 1977). However, in the 1990s, some courts began to hold in favor of gay teachers who raised equal protection arguments (see Glover v. Williamsburg Local School District, 1998; Weaver v. Nebo Sch. Dist. 1998). There has been no very recent litigation involving the dismissal of public school educators based on their sexual orientation; however, a few media reports highlight that they sometimes still experience discrimination in schools (see Brydum, 2013; Fong, 2011).

Unlike public school teachers, a simple Google search reveals that several private school teachers at parochial schools have been fired because their “lifestyle” does not align with a church’s teachings (Dale, 2015; Gordon, 2015; Goldstein, 2015; Mohney, 2013).  For example, a teacher was fired from her Catholic school in Ohio after school officials read her mother’s obituary, which mentioned the teacher’s same-sex partner. In another case, a teacher in St. Louis was dismissed from a Catholic school after school officials learned that he planned to marry his partner. These private school teachers and others will have few legal avenues to challenge these types of dismissals. The Fourteenth Amendment typically does not apply to private schools. And, although employees of religious organizations still have protections under federal, state, and local anti-discrimination laws, if an employee performs religious duties as part of a job, the employer may not be subject to these laws (see Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 2012).

Similar to racial discrimination at one time, there is a clear tension between preventing discrimination based on sexual orientation and a private religious institution’s right to freely exercise religion or its right to freely associate. Should private religious institutions, such as private schools that receive some form of government aid or funding, be exempt from anti-discrimination laws? The Supreme Court has prohibited racial discrimination in private schools that received a government benefit (see Bob Jones University v. United States, 1983; Norwood v. Harrison, 1973).

With regard to racial discrimination, Norwood v. Harrison examined an issue involving a Mississippi state law that permitted the state to buy textbooks for private schools that discriminated against African American students. Ruling in favor of the African American plaintiffs, the Court held that the state has a constitutional obligation to avoid financial assistance to private schools that engage in racist or other invidious discrimination. In Bob Jones University v. United States, the Court analyzed whether a nonprofit private university and K–12 private school that engaged in racially discriminatory practices could still qualify as tax-exempt organizations. The Court ultimately ruled that such racial discrimination was contrary to public policy. Moreover, the Court held that there was no First Amendment Free Exercise Clause violation because the government has a fundamental overriding interest to eradicate racial discrimination, which outweighed the schools’ ability to practice their religious beliefs. Both Norwood and Bob Jones suggest that racial discrimination is not permissible in private schools that receive some type of public benefit.

Similar questions then arise as to whether there is a public policy argument against discriminating against LGBT teachers in private religious schools. Should these institutions, if they receive any government assistance or benefit, have a religious right to exclude teachers based on sexual orientation? Indeed, many would argue that discriminating against LGBT teachers in private religious schools is also contrary to public policy.

References

Dale, M. (2015, July 13). Philadelphia archbishop supports school that fired gay teacher, calling dismissal common sense. Huffington Post. Retrieved from http://www.huffingtonpost.com/2015/07/13/archbishop-gay-teacher-_n_7788148.html

Bob Jones University v. United States, 461 U.S. 574 (1983).

Brydum, S. (2013, March 8). Oregon principal claims he was let go for being gay. Advocate. Retrieved from http://www.advocate.com/society/education/2013/03/08/oregon-principal-claims-he-was-fired-being-gay

Gordon, M. (2015, January 13). Posted wedding plans cost Charlotte teacher his job. Charlotte Observer. Retrieved from http://www.charlotteobserver.com/news/local/crime/article9258446.html

Eckes, S., & McCarthy, M. (2008). GLBT teachers: The evolving legal protections. American Educational Research Journal, 45(3), 530–554.

Fong, D. (2011, February 12). Beaverton School District will pay $75,000 to settle discrimination claim by gay student teacher. The Oregonian. Retrieved from http://www.oregonlive.com/beaverton/index.ssf/2011/02/beaverton_school_district_will_pay_75000_to_settle_discrimination_claim_by_gay_student_teacher.html

Gaylord v. Tacoma, 559 P.2d 1340 (Wash. 1977).

Glover v. Williamsburg Local School District, 20 F. Supp. 2d 1160 (S.D. Ohio 1998).

Goldstein, S. (2015). Ohio catholic school teacher fired after ‘appalled’ parent learned that she was gay. New York Daily News. Retrieved from http://www.nydailynews.com/life-style/ohio-catholic-school-teacher-fired-outed-gay-article-1.1321258

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012).

H.R. 1858, 105th Cong. (1997).

Human Rights Campaign (2015). Statewide employment laws and policies. Retrieved from http://www.hrc.org/state_maps

Lambda Legal. (n.d.). A litigator’s dream: Arguing Lawrence v. Texas before the U.S. Supreme Court, Lambda Legal’s of Counsel, 1(3), 1–4.

Lawrence v. Texas, 539 U.S. 558 (2003).

Mohney, G. (2013, Dec. 8). Gay Catholic school teacher fired for wedding plans. ABC News. Retrieved from: http://abcnews.go.com/US/gay-catholic-school-teacher-fired-married/story?id=21141075

National School Boards Association (July 2015). Same-sex marriage: What the Obergefell decision means for school districts. Retrieved from https://www.nsba.org/sites/default/files/reports/NSBA_Same_Sex_Marriage%20Guide-Obergefell-Decision.pdf

Norwood v. Harrison, 413 U.S. 455 (1973).

Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. • 2000e-2.

Walsh, M. (2015). In case watched by educators, Supreme Court backs right to same-sex marriage. Education Week. Retrieved from http://blogs.edweek.org/edweek/school_law/2015/06/supreme_court_backs_right_to_s.html