Should Marriage Equality Be Taught as Controversial Post-Obergefell v. Hodges?
by Wayne Journell - 2018
Background: Having students engage with controversial issues is considered a hallmark of a quality civic education, in part because it requires students to interact with perspectives that contradict their existing worldviews, evaluate the legitimacy of positions based on evidence, and develop the skills and dispositions necessary for participation in an increasingly pluralistic democratic society. Most of the research on the teaching of controversial issues, however, has focused on how teachers and students respond to controversy as opposed to how controversy is framed. Teachers must determine whether an issue should be considered “open,” or controversial, or “settled,” or noncontroversial, in their classrooms, a decision that is both pedagogically important and often controversial. For issues that have been settled for some time, such as slavery or woman suffrage, the decision whether to frame them as open or settled is typically easy for teachers; however, issues that are in the process of tipping from open to settled, or vice versa, are more challenging and require that teachers make instructional decisions based on evidence and logical reasoning.
Purpose: The purpose of this article is to critically analyze whether the issue of marriage equality should be framed as controversial in the aftermath of the 2015 landmark Supreme Court decision in Obergefell v. Hodges that legalized same-sex marriage in the United States. In doing so, this article also offers several implications for the teaching of controversial issues broadly, particularly those that intersect with the identities of students and teachers.
Research Design: This article makes an analytical/theoretical argument using three commonly cited criteria for determining the openness of controversial issues: the epistemic criterion, the political criterion, and the politically authentic criterion.
Conclusions/Recommendations: After evaluating marriage equality using each criterion, I conclude that no rational reason exists for treating marriage quality as an open issue post-Obergefell. I also argue that the issue of marriage equality illustrates the need for teachers to be cognizant of how discussions of controversial issues that implicate students’ identities may impact students who may be marginalized by those issues. I recommend that when such issues have reached the point where subjective decisions must be made in determining whether they are framed as open or settled, deference should be made to framing those issues in a way that promotes public values as opposed to legitimizing private views.
On June 26, 2015, the U.S. Supreme Court rendered a 5-4 verdict in Obergefell v. Hodges that legalized same-sex marriage throughout the nation. Justice Anthony Kennedy, writing for the majority, stated that marriage is a fundamental right protected by the 14th Amendment; therefore, denying same-sex couples the opportunity to exercise that right is unconstitutional (Obergefell v. Hodges, 2015). The decision was a historic victory for LGBTQ rights, and the public reaction was palpable. Supporters took to social media to celebrate the ruling, and landmarks across the United States, including the White House, were illuminated in rainbow colors to mark the occasion.
Advocates of traditional marriage, however, challenged the legitimacy of the ruling and vowed to fight the Courts redefinition of marriage. Within hours of the decision, the first reports of county clerks refusing to issue licenses to same-sex couples began to appear, followed by statements from a handful of governors threatening to disobey the Courts ruling. Appearing on Fox News The Kelly File on the night of the decision, Tony Perkins, president of the Family Research Council, likened the Obergefell decision to the 1973 Court decision in Roe v Wade that legalized abortion in the United States and argued that the issue of marriage equality was far from settled (FoxNews.com, 2015b). Perhaps more significant, all of the Republican candidates for president, including the eventual nominee and winner of the general election, Donald Trump, condemned the ruling, albeit some more forcefully than others (Topaz & Gass, 2015), guaranteeing that the debate over marriage equality remained an issue throughout the 2016 Presidential campaign.
As our society continues define itself post-Obergefell, teachers across the United States must decide how they will frame the topic of same-sex marriage in an era of legalized marriage equality. In this essay, I argue that no rational reason exists for teachers to treat same-sex marriage as a controversial issue in their classes, although I acknowledge that the current political climate may make it challenging for teachers to take that stance. Moreover, I believe that teachers have a moral responsibility to frame marriage equality as a settled issue given the role of public education in American society. Although this discussion focuses specifically on the controversial nature of marriage equality, it offers several implications for the teaching of controversial political issues broadly, particularly the treatment of controversial issues that intersect with the identities of students and teachers.
Over the past forty years, scholars have increasingly advocated the inclusion of controversial issues as an integral aspect of a quality K12 civic education.1 Most of this research, however, has focused on how teachers and students respond to controversy as opposed to how controversy is determined. Hess (2009a) has defined controversial political issues as questions of public policy that spark significant disagreement (p. 37), and the issue of same-sex marriage has certainly met that description for the better part of the last half century. Yet, at one time so did questions related to interracial marriage, woman suffrage, chattel slavery, and a whole host of other issues that have since become settled within American society. The question becomes, then, at what point does an issue cease to be controversial?
Hess (2009a; Hess & McAvoy, 2015) has described this phenomenon as tipping and has noted that issues may tip from being open, or controversial, to settled, or uncontroversial, over time, and vice versa.2 Occasionally, issues may tip more than once. Hess (2009a) offered Japanese-American internment during World War II as an example of this tipping process. During and shortly after the war, the question of whether the U.S. government should have interned Japanese-Americans was a settled issue; the overwhelming sentiment among the American public was that the internment was reasonable given the military threat posed by the Japanese. In subsequent decades, opinions began to shift and the question of Japanese-American internment tipped to an open issue as Americans began debating the merits of President Roosevelts decision. By the late 1980s, the issue had tipped so far the other way that it had become settled once again, only this time the consensus was that the internment was morally wrong, a decision that was punctuated by formal apologies from the federal government and reparations to surviving Japanese-Americans who had been interned during the war.3
Given the fluid nature of controversy, it can be difficult to identify clearly open and settled issues. Teachers, in their role as curricular gatekeepers (Thornton, 1991), must determine for themselves whether to frame issues as open or settled in their classrooms, a decision that is both pedagogically important and controversial. When teachers make a conscious decision how to frame issues in their classes, they are determining how that issue will be treated both within the formal curriculum and within the context of informal classroom discourse. Although state curriculum standards tend to mandate only the topics that should be covered in a course, it is often difficult to cover certain politically laden topics without simultaneously broaching the controversial issues related to them.4 Similarly, even if a teacher could somehow remove all issues from the formal curriculum, there is no way to prevent students from raising issues on their own, and once they do, the teacher either has to acknowledge those issues as valid or dismiss them. Framing an issue as open is a powerful statement that signals to students that the issue is ripe for discussion and competing viewpoints are both rational and welcomed. Framing an issue as settled is also powerful; the teacher is using her authority to limit discussion by explicitly defining viewpoints that run contrary to the settled position as irrational.5
One school of thought on determining controversy is the behavioral criterion, which defines an issue as controversial if numbers of people are observed to disagree about it (Bailey, 1971, p. 69). The behavioral criterion, in essence, frames almost any issue as controversial since there is inevitably a handful of people who disagree with even the most settled of issues. At first glance, this approach seems democratic in a Habermasean (1998) sense in that students can engage in discussions of issues until they reach a consensus based on the will of the strongest argument. Gutmanns (1999) notion of nonrepression, which argues that democratic education should not restrict rational deliberation of competing conceptions of the good life and the good society (p. 44), also seems to support the behavioral criterion.
Yet, there are practical and philosophical concerns with framing all issues as controversial. First, there is not enough space in the curriculum to deliberate every issue in which a dissenting opinion is present. Of greater concern is that the behavioral criterion does not discern between rational and irrational dissenting views; therefore, students could articulate opinions that lack empirical evidence, reject fundamental democratic values, or infringe on others basic rights (Dearden, 1981; Hand, 2008). When teachers allow these types of opinions to coexist with legitimate viewpoints, they implicitly lend potentially heinous views credence.
For example, a recent national survey indicated that 20% of Americans still believe President Obama was born outside of the United States despite the president publically releasing his birth certificate in 2011 showing that he was born in Hawaii and no legitimate evidence ever having been produced to the contrary (Frizell, 2015). This birther movement, which began when Obama ran for office, has been supported by a handful of elected officials and other high-profile personalities, most notably President Trump, and is often accused of being motivated by racism and xenophobia (Knickerbocker, 2011; Rayfield, 2010).6 It is likely that some students made birther claims in K12 classrooms during Obamas presidency, and it is also likely that many of their parents held similar beliefs.
According to the behavioral criterion, teachers would have engaged their students in discussions of any birther claims that might have arisen simply because a sizeable percentage of Americans believed it to be true. Yet, little is gained from engaging in such a discussion; without any legitimate evidence to support the birther claim, students supporting that argument would have been left to defend their positions by airing their prejudices and general dislike of President Obama. Even if students ultimately agreed that the birther argument was invalid, by simply having the discussion, the teacher would have granted legitimacy to a position that was not supported by evidence and had the potential to offend or alienate certain members of the class.
Teachers, then, need to discern between open and settled issues in their classrooms, even if this decision creates tension between teachers and the constituents (e.g., students, their parents, the local community) they serve. For issues that have been settled for some time, the decision whether to frame them as controversial is typically an easy one for teachers. For example, one would hope that few, if any, teachers are grappling with whether to frame woman suffrage as a contemporary controversial political issue. As already noted, though, even when there is widespread agreement that an issue is settled, it does not mean that a consensus exists. Washington and Humphries (2011), for example, described one teachers experience with discussions of race in a predominately White, rural high school. They found that many of the race-related issues the teacher considered settled, such as interracial marriage, were very much open for many of her students, and presumably many of their parents.7 Yet, the teacher decided to frame these issues as settled despite her students views.
Issues that fall in the tip (Hess, 2009a, p. 118) pose a greater challenge to teachers. These issues are in the process of tipping from open to settled, or vice versa. Teachers must decide where in the tip the issue is and make the often controversial decision of framing the issue as open or settled. Consider the following example offered by Hess (2009a): In an article she wrote for a practitioner journal, Hess advocated showing Al Gores documentary An Inconvenient Truth to teach about global warming. In a subsequent issue of the journal, a high school teacher submitted a letter to the editor that criticized Hess for promoting Gores documentary without encouraging teachers to give equal time to works that characterize global warming as a myth.8 Hess responded by saying,
I dont think that global warming is a legitimate controversial issue that should be presented to students as an open case. Just the opposite: I think the issue has tipped and is now one for which there is a right answer that should be taught to students . . . As an educator who advocates the inclusion of controversial issues in the curriculum, I frequently encounter the view that all topics should be presented to students as controversial so they can decide which view to support. I find that view irresponsible. Our job as teachers is to make the best judgments we can about the content of our courses. It is a challenging task that will be done with more integrity if we make public our decisions about what questions we present as open or [settled] and the grounds on which those decisions are based. (pp. 121122)
This example illustrates the subjectivity of teaching in the tip. Two educators analyzing the same issue chose to frame it differently using contrasting criteria. Hess chose to present the issue as settled due to the overwhelming consensus among scientists that global warming exists. The teacher, on the other hand, chose to position global warming as controversial, perhaps due to the issues divisiveness among the American public.
How, then, should teachers frame marriage equality in their classes? For much of the past decade, same-sex marriage was the consummate example of an open issue within the public sphere (Hess, 2009a, 2009b). Following a 2003 court ruling that legalized same-sex marriage in Massachusetts, marriage equality became a fiercely contested social issue across the nation. Many states responded to the Massachusetts ruling by amending their constitutions to prohibit same-sex unions, and the issue became a political litmus test for candidates running for both national and statewide office.9
Within the span of a decade, however, it seemed clear that public opinion had begun tipping toward marriage equality. President Obama publicly endorsed marriage equality in 2012, and in that same year Maine, Maryland, and Washington became the first states to legalize same-sex marriage through popular vote. On the eve of the Obergefell decision, 37 states and the District of Columbia had legalized same-sex marriage; however, in only 11 states and the District of Columbia did individuals receive that right through popular vote or legislative mandate.
Writing six years before the Obergefell decision, Hess (2009a) argued that While advocating for the inclusion of gay marriage as an open issue in the curriculum often provokes controversy, advocating for the position that supporting gay marriage should be treated as a [settled] issue is even more controversial (pp. 117118). At the time, I may have agreed with that position. I believe, however, that the Obergefell decision represents the point in the tip at which teachers should frame same-sex marriage as a settled issue.
This is not to say that a consensus has formed in favor of marriage equality in the United States. Social conservatives have vowed to fight for traditional marriage, and even the Obergefell decision was more divisive than past landmark civil rights rulings.9 It is possible, although unlikely, that a different Court could reverse the Obergefell decision or that public opinion could tip back toward traditional marriage. Yet, the presence of dissent post-Obergefell should not deter teachers from framing marriage equality as a settled issue in their classrooms. In the remainder of this essay, I argue that there is no rational reason to consider marriage equality an open issue by evaluating it using three commonly cited criteria. Moreover, I contend that framing marriage equality as an open issue undermines the civic responsibility of public education.
EVALUATING THE CONTROVERSIAL NATURE OF MARRIAGE EQUALITY
A single criterion for evaluating the controversial nature of an issue does not exist. A number of criteria have been posited by scholars in recent years, and as Hess and McAvoy (2015) have noted, all of them have strengths and limitations. Assuming that the behavioral criterion, which frames issues as controversial in the presence of any disagreement, is removed from consideration for the reasons outlined above, I offer three commonly cited (and often contradictory) criteria that can be used to assess whether marriage equality should be framed as an open or settled issue in K12 classrooms: the epistemic criterion, the political criterion, and the politically authentic criterion.
Before delving into this argument, it is important to clarify that my intent is to discuss marriage equality from policy and civil rights perspectives and not a moral standpoint. Certainly, morality and policy often intertwine, but when we discuss the curriculum taught in public schooling, issues of religious morality, in particular, must take a backseat to the will of the polity. Private schools are not required to adhere to this position, so this discussion would not necessarily apply to those institutions (Gereluk, 2013a).
This argument, therefore, does not seek to delve into the question of homosexuality itself; others have already explored that terrain in great detail.11 For the purposes of this discussion, I believe ones moral position on homosexuality or same-sex marriage is irrelevant. Consider, for example, an issue that has often been used to support the marriage equality cause: interracial marriage, which was legalized across the United States in 1967 via a Supreme Court decision. Recent data suggest that many older Americans still would not approve of a family member marrying someone of another race (Pew Research Center, 2010). A parent, for example, may disapprove of a child marrying someone of a different race and may even hold a moral objection to their union, yet he can still recognize that the couple has a legal right to marry. I use the same logic here to discuss the controversial nature of same-sex marriage. People are entitled to hold whatever moral convictions about homosexuality or same-sex marriage that they wish; however, as an issue of public policy, I believe that there is no rational reason to treat marriage equality as an open issue post-Obergefell.
THE EPISTEMIC CRITERION
The epistemic criterion was first introduced by Dearden (1981) as part of a critique of the behavioral criterion. According to Dearden, issues should be taught as controversial only when contrary views can be held on [them] without those views being contrary to reason (p. 86). For proponents of the epistemic criterion, rationality and reason trump any other possible factors for framing an issue as open or settled. Whether the issue is divisive within the public sphere is immaterial given that the objective of public education is to encourage the development of rational thought (Hand, 2008).12 As Hand (2014) stated,
The importance of learning to live together does not trump the demands of epistemic rationality: where a question is genuinely open, it would be wrong to teach it as closed even if doing so might reasonably be expected to reduce social discord; and where a matter is decisively settled by relevant evidence and argument, teaching it as if it were unsettled to spare the feelings of those in denial about its resolution would be quite unjustified. (p. 82)
If teachers find that an issue has more than one conflicting view that can be deemed rational in the face of credible evidence, then they have the responsibility to teach the issue as controversial using what Hand (2008) has termed non-directive teaching. When teachers assume a non-directive approach they remain as impartial as possible, provide students with the best arguments for all rational viewpoints on the issue, and encourage students to reach a conclusion for themselves. If, however, teachers find that an issue is settled, meaning that only one rational view on that issue exists, then teachers should engage in directive instruction that both endorses and steers students toward siding with that rational view.
The form and tone that directive instruction takes has been a point of contention among proponents of the epistemic criterion in recent years. Hand (2008) argued that teachers can teach directively through didactic force, such as refusing to engage irrational positions or explicitly telling students that such positions are incorrect, or by letting students engage in student-centered investigative methods in which they ultimately come to the correct, or rational, answer on an issue. For Hand, the format of directive instruction is not as important as ensuring that students reach a rational conclusion.
Others, however, have argued that the process of directive teaching also matters. Warnick and Smith (2014) argued for what they termed the soft directive approach, in which a teacher overtly endorses a position but does not explicitly encourage their students to accept that position. Rather, teachers guide students to the rational conclusion by modeling their epistemic thought process while simultaneously allowing students to form their own conclusions which may conflict with that of their teacher and, by extension, that of reason. For Warnick and Smith, a soft directive approach would frame a settled issue using language similar to Here is what we believe is the most reasonable position and here are the reasons behind this position, but you should also think carefully why we might be wrong (p. 240). They argued that such an approach satisfies the goal of the epistemic criterion in that teachers openly advocate a rational position to a settled issue and encourage students to adopt that position using epistemic reasoning. However, this approach allows for the possibility that the teachers logic may be fallible, which they stated is important since even the most settled positions may someday be tipped back open.
Gregory (2014) offered a slightly different approach with what he termed procedurally directive teaching. In this approach, teachers use the epistemic criterion to determine settled positions, but they do not overtly endorse those positions, nor do they explicitly guide students to the rational conclusion. Teachers, rather, use their authority to regulate the procedures by which students process issues. According to Gregory, directive instruction should take the form of teachers actively steering students to rational viewpoints through critical questioning, helping students accurately weigh evidence, and publicly correcting misguided logic.
Over the past few years, scholars have engaged in a spirited debate about the epistemic criterion and, apropos to this discussion, the example used most often to justify the strength of the criterion has been same-sex marriage. Therefore, I will not spend too much space rehashing what has already been argued by others. In short, of the three criteria that I am using to justify the position that marriage equality should be framed as a settled issue, the epistemic criterion is the only one in which scholars have definitively argued that the issue was settled before the Obergefell decision.
The only point of contention is the rationale for why marriage equality should be framed as a settled issue. Hand (2007, 2013) argued the point on moral grounds by both debunking religious and unscientific positions denouncing homosexual acts and by claiming that same-sex relationships have the same social value as heterosexual relationships.13 Gereluk (2013b), on the other hand, dismissed Hands rationale but posited that marriage equality should be framed as settled based on the Rawlsian (1993, 1999) view that the state must afford equal access to societal opportunities. Gregory (2014) further argued for a civil rights frame that positions marriage as a fundamental right for all citizens over which the state holds a monopoly and, thus, must be accessible to all citizens.
Each of these authors have made compelling cases for their respective frames as well as highlighting the limitations of opposing rationales. I am not positioned to add any substance to their arguments, nor is that my intention here. Rather, the point I wish to make is that regardless of the rationale used, the epistemic criterion treats marriage equality as a settled issue. Although advocates of the epistemic criterion did not need the Obergefell decision to reach that conclusion, it certainly did nothing to detract from it.
Where I think the Obergefell decision impacts the epistemic criterion is in the framing of directive instruction. While I appreciate the reasoning behind both Warnick and Smiths (2014) soft directive and Gregorys (2014) procedurally directive approaches, I believe they are problematic in the wake of the Obergefell ruling. A soft or procedurally directive approach may be appropriate for settled issues such as global warming or evolution in which students identities are not affected, but a more forceful approach should be taken for settled issues that implicate students identities and basic civil rights.
If a teacher projects a measure of fallibility in steering students to a rational position on, say, evolution, little harm is done. Hopefully the teacher can convince students, either through endorsement or through deliberative procedures, of the rational conclusion that evolution is a scientific fact, but if at the end of the day, a student still views evolution as a myth, then all that is damaged is that students ability to see scientific reason. If, however, a teacher does not overtly endorse the right of same-sex couples to marry, as called for in procedurally directive instruction, or frames the issue in a way that allows room for fallibility or for students to come to their own conclusions, as called for in both soft and procedurally directive instruction, she runs the risk of giving credence to beliefs that run counter to the civil rights of students in her classroom who identify as part of the LGBTQ community.
For example, I imagine most Americans would find a classroom discussion on whether schools should be legally segregated by race distasteful, even if the teacher steered her class toward the rational conclusion that school segregation was immoral. The issue of school desegregation in the United States has been settled for quite some time, and there would be no benefit to taking a soft or procedurally directive approach to that issue in ones classroom. I believe a similar case could be made for marriage equality. Although prior to the Obergefell decision, the epistemic criterion would have led to the conclusion that marriage equality was a settled issue, one could reasonably argue that the non-uniform legality of same-sex marriages throughout the United States warranted a soft or procedurally directive approach to discussing marriage equality in classroom contexts. However, in the wake of the ruling, I believe that such weakly framed directive approaches are not sufficient. While marriage equality does not have the same history as school desegregation, I would argue that the issue has tipped to the point that failure to explicitly recognize the right of same-sex couples to marry is both morally objectionable and pedagogically irresponsible.
THE POLITICAL CRITERION
Another school of thought, which Hand (2008) has described as the political criterion, involves applying tenets of liberal political theory in determining the controversial nature of issues. Advocates of the political criterion follow the Rawlsian (1993) distinction between public and private values. Public values are fundamental rights to which the polity is entitled, and it is the responsibility of the state to promote and uphold these rights. Private values, on the other hand, consist of the varying and often contradictory definitions of the good life held by individuals and groups within the polity. As long as these private values do not infringe on the public values of the polity, the state should not attempt to endorse or prohibit any definition of the good life.
Public schools, as agents of the state, participate in this responsibility. Advocates of the political criterion, therefore, argue that issues should be framed as open if competing views exist, and these views do not infringe on the public rights of citizens (Hand, 2008). Perhaps the best illustration of this position can be found in Gutmanns (2009) theory of nonrepression. According to Gutmann, nonrepression secures freedom from interference only to the extent that it forbids using education to restrict rational deliberation or consideration of different ways of life (p. 44, emphasis in original). In other words, Gutmann is arguing against the educational indoctrination of citizens, which would violate the democratic purpose of schooling.14
Yet, Gutmann (1999) acknowledged that schools have a responsibility to cultivate moral principles that prepare students for life in a pluralistic democracy. In the very next sentence, she stated, Nonrepression is therefore compatible with the use of education to inculcate those character traits, such as honesty, religious toleration, and mutual respect for persons, that serve as foundations for rational deliberation of differing ways of life (p. 44). Given that people have differing views on religious toleration and what constitutes honesty and mutual respect for persons, it appears that Gutmann is open to educators framing some viewpoints as irrational because they infringe on public values.
The operative word in Gutmanns (1999) definition of nonrepression, it appears, is rational. Although she never posited a criterion for determining rationality, Gutmann did state that
Neither a good life nor a good society require maximizing freedom of choice. Educational authorities may teach children that religious intolerance and racial bigotry (for example) are wrong without claiming that the justification for their nonneutrality is the future freedom of children. The justification for teaching these virtues is that they constitute a kind of character necessary to create a society committed to conscious social reproduction. (p. 40, emphasis in original)
If educating for conscious social reproduction means prescribing to a set of practices and authorities to which we, acting collectively as a society, have consciously agreed (p. 39), then it stands that educators, at some point, must frame certain issues as settled on behalf of the collective views of the polity.
What, then, of marriage equality? Prior to the Obergefell ruling, it would have been difficult to argue that society had consciously agreed that marriage equality was a settled issue. The Obergefell decision, however, rested on the Court defining marriage as a public right; therefore, entertaining private views against the rights of same-sex couples to marry would violate a practice that had been consciously agreed to by society at large. Despite critics of the Obergefell decision arguing that five unelected justices subverted the democratic process (Dann & Rafferty, 2015), the ruling followed the process of judicial review with the Court acting as one of the three co-equal branches of government as outlined in the Constitution.
If Gutmann (1999) argued that educators should censor racial bigotry, which at one point in our nations history was not only rampant but also prescribed by law, then the same logic should apply to arguments against marriage equality. Public values are constantly being defined and redefined (Rawls, 1993), and once a public value is defined through the democratic process, then it should be endorsed and protected by the state. The amount of time a value has been defined as fundamental to all members of the polity is immaterial.
Of course, there remains a sizeable contingent of the public that is opposed to marriage equality, primarily on religious grounds. Although the political criterion values differing conceptions of morality, including that which is defined by religious institutions, educators have the right to not acknowledge religious beliefs if they infringe on public rights. As Gutmann (1999) noted,
The fact that a practice derives from the religious beliefs of only some citizens is not a good reason for excluding it from schools, whereas the fact that a religious practice makes it harder for the school to develop a common deliberative morality among students is a good reason.
This definition can be used to distinguish between marriage equality and abortion rights, the example cited by Tony Perkins as a reason to continue opposing marriage rights for same-sex couples. In the case of abortion rights, the fundamental public values in question are the right to life and the liberty of self-determination. Why abortion rights should still continue to be taught as an open issue despite the Courts decision in Roe v Wade is the moral and scientific disagreement over when life begins. For anti-abortion advocates, life begins at conception. For many abortion-rights advocates, life does not begin until certain gestational markers have been met, and some would even argue that life does not begin until a baby is born. Science, however, has yet to offer a definitive answer to that question, although it is possible, in light of technological advancements and improvements in medical science, that a settled position could emerge in the future.
As it currently stands, both sides in the abortion rights debate believe that the private values of the other are violating basic public rights. Anti-abortion advocates support the fundamental right of life, in this case, the life of the unborn fetus. Abortion-rights advocates, on the other hand, fight for a womans self-determination over what happens to her body. Using the political criterion, both arguments are equally valid and, thus, abortion rights should be taught as an open issue.
Arguments against marriage equality, on the other hand, do not meet that standard. Those who oppose marriage equality are attempting to restrict a certain segment of the population from what has now been defined as a societal right. Yet, letting same-sex couples marry does not infringe on the rights of non-LGBTQ individuals. They can continue to marry as they did before the Obergefell ruling, and they still have the ability to hold the private views that homosexuality and same-sex marriage are sins, if they so desire. Within a classroom context, treating marriage equality as an open issue on religious grounds seems to be an example of a religious practice making it harder to develop a common morality among students around public values.
This is not to say, however, that teachers should dismiss the private views of their religious students. Part of living within a democracy is learning to navigate what Rawls (1993) termed reasonable disagreements with others. Individuals will inherently disagree about how to live; however, that does not mean opposing viewpoints are necessarily unreasonable. It is reasonable, for example, that someone who was raised in a socially conservative household to hold a strict interpretation of the Bible would view same-sex marriage as immoral. Acknowledging that a religious belief is reasonable is different, however, than endorsing that belief as legitimate within the public sphere. Given that the political community outside of the classroom requires that individuals holding differing private views and belief systems live together despite their reasonable disagreements, teachers should respect the reasonableness of religious opposition to marriage equality even while framing the issue as settled in their classrooms (Kunzman, 2006, 2015). Acknowledging why certain individuals might oppose marriage equality, however, is fundamentally different than treating it as an open issue that is subject to deliberation.
In other words, when the issue of marriage equality is raised by students or discussed as part of the formal curriculum, a teacher would not necessarily have to denounce opposition to marriage equality as wrong or steer students toward that direction, as is called for within the epistemic criterion. Framing marriage equality using the political criterion allows teachers to tell students who oppose marriage equality that their views are personally valid but that they will not be given space within the classroom to voice those opinions because the democratic process has established that marriage is a fundamental right of all citizens. Although such framing may rankle those holding traditional views of marriage, at no point does the teacher actively denounce their views or try to change their opinions. Rather, marriage equality is presented as a public right that should not be questioned within a public context, such as a classroom.
POLITICALLY AUTHENTIC CRITERION
One limitation with using philosophical criteria to determine the controversial nature of issues is that they often do not take into account external constraints placed on teachers. American society has become increasingly politically polarized in recent years, which makes broaching controversy particularly challenging (McAvoy & Hess, 2013). Although both the epistemic and political criteria make compelling cases for teaching marriage equality as a settled issue, angry students or parents raising accusations of indoctrination may not be willing to listen to nuanced philosophical arguments.
Hess and McAvoy (2015) argued that a more realistic approach to defining controversy can be found in what they term the politically authentic criterion. In essence, this approach seeks a balance between the behavioral criterion, which Hess and McAvoy argued is too broad, and the epistemic criterion, which they argued is too narrow. The politically authentic criterion defines issues as open when they have traction in the public sphere, appearing on ballots, in courts, within political platforms, in legislative chambers, and as part of political movements (pp. 168169).
The challenge of the politically authentic criterion is determining the difference between societal disagreement and political traction. Certainly, there remains societal disagreement about marriage equality in the wake of the Obergefell decision, and conservative legislators have vowed to fight the ruling. Republican presidential candidate and U.S. Senator Ted Cruz, for example, proposed a constitutional amendment hours after the Obergefell decision was announced that would preserve the authority of elected state legislatures to define marriage as the union of one man and one woman (Cruz, 2015, para 4). If this amendment were to be ratified to the U.S. Constitution, it would supersede any ruling made by the Court legalizing same-sex marriage across the United States. During the 2016 Republican primary, U.S. Senator Marco Rubio, a candidate for the Republican nomination, declared that no Supreme Court decision should be considered settled law and indicated that should a Republican candidate win the presidency, he or she should nominate justices who would overturn the ruling (Kapur, 2015). Yet, as of this writing, President Trump, who did not make marriage equality a central focus of his campaign, has indicated that he views the question of marriage equality as settled and that he is fine with [the Obergefell decision] (Stokols, 2016, para. 4).15
Should teachers consider such threats of repeal evidence of political traction? Although theoretically possible, it would not be practical to seriously entertain a constitutional amendment banning same-sex marriage receiving enough support from two-thirds of Congress and three-fourths of the state legislatures to pass in the current American political climate, a reality that even Trump has acknowledged (FoxNews.com, 2015a). Similarly, even if Trump reverses his most recent stance on the settled nature of marriage equality or an opponent of marriage equality were to be elected to the presidency in the future and have the opportunity to nominate socially conservative justices to the Supreme Court, history suggests that it is unlikely that the Court would reverse such a recent ruling, particularly one that would rescind a right enjoyed by millions of Americans. Moreover, as Hess and McAvoy (2015) noted,
Even when issues have political traction, they are sometimes framed and deliberated in the political world in a manner that subjects them to the worst excesses of manipulation and political polarization. Often the reasons used to support positions are incoherent, poorly reasoned, buttressed by empirically shady evidence, or downright hysterical. Volume, repetition, and passion masquerade as relevance and reason. (p. 169)
The post-Obergefell discourse opposing marriage equality seems to fit this description. Opponents of marriage equality have been vocal in their objection to the ruling, but most admit that legal attempts to overturn the precedent set by the Court are wishful thinking. Even the late Justice Antonin Scalia, perhaps the member of the Court most opposed to the Obergefell ruling, wrote in his dissent that the Court had put a stop to the public debate on marriage equality (Obergefell v. Hodges, 2015).
From a policy standpoint, then, it seems clear that marriage equality should be framed as settled using the politically authentic criterion. Yet, the slow nature of the American democratic process gives the appearance of openness. Although the Court legalized same-sex marriage, it is reliant on the executive branch to enforce that decision.16 An illustrative example can be found following the Courts decision in Brown v Board of Education. Many states in the South chose to brazenly disobey the ruling, even voting in their legislatures to continue the practice of educational segregation (Woodward, 1974). Yet, the federal government ensured, sometimes by military force, that the Courts ruling would be upheld.
As of this writing, the federal and state governments have taken a hardline stance against individuals who have attempted to circumvent the Obergefell decision. The clerks who initially refused to authorize marriage licenses to same-sex couples were given the option of either adhering to the law or being removed from their positions.17 Kim Davis, a clerk in Rowan County, Kentucky, became the face of the opposition to marriage equality when she refused to issue licenses to same-sex couples even after being ordered to by a U.S. District Court and having her appeal denied by the Supreme Court. Davis was summarily jailed and released only on the condition that she would not interfere with the issuing of marriage licenses to same-sex couples (Associated Press, 2015).
It would be a mistake, then, for teachers to conflate disobedience with openness. As long as dissenting officials are being made to comply with the Obergefell decision, any public disobedience should not be considered a form of political traction. Therefore, unless something unexpected causes public opinion on marriage equality to tip back toward a traditional definition of marriage, teachers would be able to reasonably frame the issue as settled using the politically authentic criterion.
In practice, this approach would look similar to how the issue would be treated if framed by the political criterion. At no point would teachers feel compelled to directly tell students that their personal beliefs on marriage equality were incorrect or try to convince them to adopt a different viewpoint. Rather, the teacher would justify the framing of marriage equality as a settled issue by explaining the logistical and political realities that are prohibiting a reversal of current policy despite the appearance of controversy in the news, on social media, or in other aspects of the public sphere.
After evaluating marriage equality through each of the three criteria that I have used in this essay, I believe there is no rational reason to treat it as an open issue post-Obergefell. As previously stated, each of the criteria has limitations, and in many ways they are philosophically opposed to each other. The point of this essay was not to determine a correct way to evaluate the controversial nature of issues. Each criterion offers a reasonable justification for determining issues as either open or settled, and as Hess and McAvoy (2015) have noted, deciding which criteria or criterion to use [requires] teachers to attend to context, evidence, and aims (p. 166).
Rather, I intended to show that a settled position is the only rational stance teachers should take regardless of which criterion they personally find most appealing. It seems clear that the majority of the American public had tipped toward acceptance of marriage equality over the past decade, and the Obergefell decision provided the final push toward making it a settled issue. That the issue tipped faster than some people wished should not be the concern for public educators. Their decision to teach issues as open or settled should be determined by logical criteria and rational evidence.
Another implication of this discussion is that not all controversial issues are created equal. The decision to frame any issue as open or settled is one that teachers should not make lightly; framing issues without a clear criterion or choosing to frame issues incorrectly in order to avoid controversy holds serious pedagogical, moral, and social consequences. However, as the example of marriage equality illustrates, these consequences are intensified when issues intersect with the identities of students and teachers. Although prior research has discussed the inherent challenges in broaching controversial issues that intersect with aspects of ones identity, such as race, gender, sexuality, and religion (e.g., Beck, 2013; Evans, Avery, & Pederson, 1999; Journell, 2011a), or deal with issues that directly affect teachers and students (e.g., Swalwell & Schweber, 2016), these studies have largely focused on how teachers should respond to issues already deemed open (e.g., creating tolerant classrooms, whether or not to disclose ones opinion) as opposed to determining whether such issues should be framed as open or settled.
It seems, then, that educators should consider the broader social landscape when determining the openness of issues that intersect with students identities, or what I have termed controversial identity issues (Journell, 2017). This is not to say, however, that teachers should avoid these types of issues or teach clearly open issues as settled for fear of alienating or offending certain students. As noted earlier, prior to the Obergefell decision, only the epistemic criterion would have framed marriage equality as a settled issue, and I believe most educators would have balked at teaching the issue as settled in their classrooms given the sizeable number of states in which same-sex marriage remained prohibited. At that time, an open framing of marriage equality could have been a justified pedagogical stance, regardless of its potential to offend students identifying as part of the LGBTQ community, given the significance of the issue in the public sphere.
I would argue, however, that when controversial identity issues have reached the point where subjective decisions must be made in determining whether they should be framed as open or settled, deference should be made to framing these issues in a way that promotes public values as opposed to legitimizing private views. Although the criteria offered in the literature for assessing the openness of issues is useful for educators, they often fail to take into account ones students or the social environments in which they live. Therefore, an implication of this discussion for the teaching of controversial issues broadly is for educators to be aware of their students identities and how the framing of recently tipped issues might be received by students who identify as members of marginalized groups.
Of course, any time teachers limit open discussion in their classrooms or mandate a preferred stance on an issue, they are using their authority to limit students autonomy, which some have argued subverts the democratic mission of schooling (e.g., Callan, 2011; Freedman, 2007). It would certainly be less risky to follow more of a behavioral criterion approach and take an open stance on all issues. It is harder to challenge a stance on which students are allowed to tolerantly voice their opinions on any issues raised in class.
Teaching, however, often requires making difficult choices, even in the face of criticism or disciplinary action (Journell, 2016b). One could easily argue that taking an open stance on any settled issue is problematic; however, I would argue that such a stance is morally unacceptable when the issue involves the basic rights of individuals. Even if teachers endorse marriage equality, if they lend opposing viewpoints the same level of legitimacy in their classrooms they are sending the message that a basic right for a certain segment of the population is still ripe for debate. For students who identify as part of the LGBTQ community, an open stance on marriage equality would be akin to how an African-American student would feel if racist positions on settled issues like segregation or slavery were given legitimacy within a classroom context.
Further, I believe that teachers who frame marriage equality as an open issue are abdicating their duty to engage in the conscious reproduction of society advocated by Gutmann (1999). Schools, as state institutions, have a responsibility to help guide society toward acceptance of public values. The Obergefell decision was a decisive step in guaranteeing the right to marry to millions of Americans who had not been afforded that privilege previously, and now it falls to schools and other apparatuses of security (Foucault, 1991) of the state to cement that right into the hearts and minds of the citizenry. For the nation to continue to evolve in its acceptance of what has been defined by the Court as a fundamental right for all Americans, it is the responsibility of educators to ensure that the next generation of citizens can clearly distinguish marriage as a public value despite whatever private values they may hold.
I also believe this discussion offers implications for how teachers should implement their pedagogical decisions once they have deemed an issue as settled, which is a topic that has largely been ignored within the literature on controversial issues beyond the discussion of directive teaching outlined earlier. Clearly, some form of directive teaching is needed; however, I do not believe that more passive forms of directive instruction, such as having students weigh evidence and come to a conclusion, are appropriate when broaching controversial identity issues. Although these types of approaches are consistent with notions of deliberative democracy and are regularly touted as ideal practices for the teaching of open controversial issues (e.g., Avery, Levy, & Simmons, 2013; Parker & Hess, 2001), I believe they would send the wrong message if they were used in conjunction with settled issues, particularly ones that implicate students identities. Instead, students need to see their teachers take an explicit stand on these types of issues using the authority they hold within the classroom. As already noted, this stance does not have to belittle opposing viewpoints or overtly state them as wrong. Teachers can acknowledge that contrary private values exist, but they need to make clear that within the public space of the classroom these private values will not be received as legitimate since the issue has been framed as settled.
I do not wish, however, to imply that this type of directive instruction is necessarily easy to implement. As Hand (2008) acknowledged, cultural restraints (p. 228) such as school climate, parent complaints, and threats of disciplinary action may prohibit teachers from being able to fully implement directive instruction in their classrooms, and many examples exist that suggest teachers often have to censor themselves in light of the contexts in which they teach (e.g., Camicia, 2008; Goldston & Kyzer, 2009; Ho, Alviar-Martin, & Leviste, 2014; Journell, 2012). Yet, the threat of repercussions should not prevent teachers from enacting pedagogical decisions they deem appropriate. Teachers in politically conservative schools or communities may not have the latitude to epistemically denounce opposition to marriage equality as incorrect; however, all teachers have the ability to frame the tenor of classroom discussion and make determinations on what types of views are deemed legitimate within the public space of the classroom. It is important that such decisions are based on more than just the teachers feelings or beliefs; teachers should be able to justify their decision to treat an issue as open or settled with evidence and a clear rationale, such as one or more of the three criteria outlined in this article. Moreover, I believe it is important for those decisions to be transparent; if teachers can explain their reasoning for why they are choosing to frame an issue as open or settled, and that reasoning is based on evidence and logic, it will go a long way toward ensuring that students, parents, and administrators respect those decisions, provided that students are never punished for privately holding views that may contradict any settled positions that have been established.
Finally, I would also like to address two possible criticisms of my argument. I have written this essay without engaging the premise that teachers may not be accepting of marriage equality themselves. I recognize that it is often not easy to advocate for something that one may personally disagree with. However, teaching sometimes requires the balancing of ones personal convictions with their professional obligations.
One obvious solution to this issue would be for these teachers to avoid addressing marriage equality in their classrooms. Of course, avoidance may not always be possible, nor does it prepare students to engage with issues of public importance (Hess & McAvoy, 2015). If teachers opposed to marriage equality are faced with addressing the issue, I agree with Petrovic (2013) that they have a responsibility to still treat marriage equality as a settled issue. However, they also should be able to disclose to their students that they hold a different opinion, if they so choose. As long as they frame their personal opinion as a private value and frame marriage equality as a settled public value, then they will have fulfilled their pedagogical responsibility.18 Disclosing a dissenting view toward marriage equality while still acknowledging the settled nature of an issue may even be an effective way for teachers to demonstrate the difference between reasonable disagreements among individuals private values and opposing public values.
Similarly, some may argue that framing marriage equality as a settled issue automatically endorses the LGBTQ position on all related issues. That is not the case. There are several issues related to same-sex marriage (e.g., should religious institutions lose tax exempt status if they refuse to marry same-sex couples? should public officials who refuse to issue marriage licenses to same-sex couples for religious reasons be granted an exemption from their duties?) that would be considered open issues using one or more of the criteria outlined above. Just as it would be incorrect to frame a settled issue as open, it would be pedagogically negligent to frame these open issues as settled simply because one advocates a certain position. Doing so would abdicate the responsibility of preparing students to enter a pluralistic democracy in which open issues are deliberated within the public sphere.
Discussions of controversial issues are considered a hallmark of a quality civic education, in part because they require students to engage with perspectives that contradict their existing worldviews, evaluate the legitimacy of positions based on evidence, and develop the skills and dispositions necessary for participation in an increasingly pluralistic democratic society (e.g., Hess, 2009a; Hess & McAvoy, 2015; Johnson & Johnson, 1979; Parker, 2003). Moreover, schools offer a unique opportunity for students to engage in such discussions because even the most homogeneous of schools likely offers more ideological diversity than what most students are exposed to at home, within their circle of friends, or in their places of worship (Parker, 2010). In no way am I suggesting that educators retreat from broaching controversy in their classes; however, I believe the issue of marriage equality illustrates the need for teachers to be thoughtful in how they frame controversy in their classrooms.
For issues that fall within the tip, a certain amount of subjectivity exists in determining whether to frame an issue open or settled. In this essay, I have argued that the Obergefell decision marked the point where the issue of marriage equality had tipped to a settled position, and regardless of what criteria are used, no rational argument can be made to teach it as an open, controversial issue. Further, I believe that the implications of this stance extend beyond questions of sound pedagogy. The framing of marriage equality carries civic and moral implications for the way in which students view themselves, their peers, and the rights of a considerable portion of society.
It is likely that as we become farther removed from Obergefell and Americans become more accustomed to same-sex relationships, the controversial nature of marriage equality will wane; however, perceived eventual acceptance should not absolve educators from their responsibility to teach the issue as settled now. By clearly distinguishing between public rights and private values within their classes, teachers can help ensure that the next generation of citizens will be able to recognize marriage as a fundamental right for the polity despite whatever beliefs about same-sex relationships they may personally hold.
I would like to thank J. B. Mayo for his constructive feedback and supportive comments on an earlier version of this manuscript.
1. For a synthesis of this literature over time, refer to Johnson and Johnson (1979), Hahn (1991, 1996), Hess (2008), and Journell (2013).
2. In her earlier work, Hess (2009a) used the terms open and closed; in her more recent work (Hess & McAvoy, 2015), she used the terms open and settled. I am choosing to use her most recent terminology.
3. President Ford issued the first public apology in 1976, and President George H. W. Bush issued another apology on the 50th anniversary of the bombing of Pearl Harbor in 1991. The reparations of $20,000 to each living survivor were enacted by the Civil Liberties Act of 1988 and reauthorized in 1992.
4. Studies of state curriculum standards have found that they rarely include specific issues for students to deliberate (Hilburn, Journell, & Buchanan, 2016; Journell, 2010). However, they often mandate that teachers cover certain topics that will likely prompt controversy. For example, most civics standards include Roe v Wade as a Supreme Court case that students need to know; it would be difficult to cover that particular case without the controversial issue of abortion rights being raised by either the teacher or a student. Similarly, it would be difficult to cover a topic such as immigration in a U.S. history class without students raising contemporary immigration concerns.
5. It is worth noting that framing an issue as settled is fundamentally different than recognizing an issue is controversial and choosing not to engage students in discussions of that issue for fear of backlash from parents, administrators, etc. Hess (2004) has termed the latter position as avoidance.
6. In September 2016, Trump publicly reversed his opinion on Obamas birthplace, stating that President Barack Obama was born in the United States (Collinson & Diamond, 2016, para. 1).
7. Recent polling data also suggest that issues considered settled by mainstream Americans are viewed as open for certain segments of the population. A Public Policy Polling (2012) survey during the 2012 presidential election, for example, found that 21% of likely Republican voters in Alabama and 29% of likely Republican voters in Mississippi believed that interracial marriage should still be illegal. Twelve percent in Alabama and 17% in Mississippi responded that they were not sure on the issue.
8. For the full text of Hesss original article, refer to Hess (2007). Both the letter to the editor and Hesss response can be read in their entirety in Hess (2009a).
9. For a more detailed history of the progress toward marriage equality, see Mayo (2016).
10. For example, both the 1954 Brown v Board of Education ruling that desegregated public schools and the 1967 Loving v Virginia ruling that legalized interracial marriage were 90 decisions by the Court.
11. See, for example, Hand (2007) and Petrovic (2013).
12. This aspect of the epistemic criterion has been subject to critique. For example, Cooling (2012) has argued that the epistemic criterion does not allow for faith-based diversity which is often difficult to empirically justify, and Hess and McAvoy (2015) argued that the epistemic criterion does not adequately prepare students to enter a political society in which issues are not always debated on the basis of empirical rationality.
13. For example, one of the arguments often made by proponents of traditional marriage is that opposite-sex couples offer a healthier environment for children. However, a recent review of empirical literature on children raised in opposite-sex and same-sex households found that those raised in same-sex households fared as well, or better, than those raised in opposite-sex households (Columbia Law School, 2016).
14. For more on this aspect of Gutmanns (1999) work, see Freedman (2007).
15. It is important to note that President Trumps stances on many aspects of public policy, including marriage equality, have not been consistent. He has publicly stated his preference for traditional marriage multiple times over the past decade (Clark, 2016), and in at least one interview during the 2016 presidential campaign, he indicated that he would seriously consider choosing Supreme Court justices who would overturn the Obergefell decision (FoxNews.com, 2016).
16. The most famous example of this relationship occurred after the Supreme Court ruled in Worcester v Georgia that relations with Native American tribes were the jurisdiction of the federal government and not the states. As President Andrew Jackson observed, The decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate (Satz, 1974, p. 49).
17. Also, some clerks across the United States chose to resign their positions voluntarily for moral reasons.
18. Teacher political disclosure is a controversial issue unto itself. For a range of arguments about disclosure, see Kelly (1986), Hess and McAvoy (2009, 2015), and Journell (2011b, 2016a, 2016b).
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