Maine Attorney General Issues Opinion on the Implications of Marriage-Equality Law on Maine School Curricula

10/15/09 opinion by Maine Attorney General Janet Mills:

As readers of this site may already know, Maine Education Commissioner Susan Gendron asked Attorney General Janet Mills to issue an opinion on whether the state's marriage-equality law would impact public school curricula. The Yes on 1 campaign has claimed that if Maine voters defeat Referendum 1 and allow the law to take effect, public school students will be "forced" to read books, like Who's In A Family, that introduce them to families with same-sex parents. The campaign has enlisted Schubert Flint Public Affairs to advertise this claim. Last year, this public affairs firm successfully promoted the same message on behalf of Yes on 8.

Attorney General Mills identified two reasons why the same-sex marriage law has no bearing on public school curricula:

1. "[F]or parents concerned about educational practices in Maine, safeguards for persons with religious beliefs are already provided in the law: The Maine Learning Results statute, 20-A M.R.S.A. sec. 6209, requires “accommodation provisions for instances where course content conflicts with sincerely held religious beliefs and practices of a student’s parent or guardian.”

2. Suppose Maine's public schools required students to read, or gave them opportunity to read, books about non-traditional familes, gay parents, or gay spouses. Or suppose the schools required students to read only books about traditional families, or made only such books available to students. Under either circumstance, parents with religious objections would not have an automatic entitlement, under First Amendment protection of religious expresssion (and 14th Amendment protection of parental autonomy), to exemption of their children, because the requirement, by itself, does not automatically establish "indoctrination." That is the implication of Parker v. Hurley, 514 F.3d 87 (1st Cir.2008), cert. den., 129 S.Ct. 56 (U.S.2008), as Miller understands the ruling. She discusses it in order to answer those who have relied on it to oppose Maine's same-sex marriage law.

The case concerned Massachusetts parents who, on religious grounds, objected to a school requirement that their child hear classroom readings of King and King, a book the Parker Court says "endorses gay marriage." It also concerned parents who had religious objections about the availability of Who's In A Family, a book that references same-sex parents among other non-traditional families, but does not reference same-sex marriages. All of the parents claimed that the schools were indoctrinating their children, in violation of the parents' First Amendment right to religious free speech, and in violation of their 14th Amendment guarantee of parental autonomy. That is, they claimed "that the state has put pressure on their children to endorse an affirmative view of gay marriage and has thus undercut the parents' efforts to inculcate their children with their own opposing religious views." The Parker Court ruled that the parents did not establish their claim of indoctrination, even if indoctrination rises to the level of "coercion" contrary to the First Amendment. (The Court did not consider whether indoctrination represents such coercion.)

Mills states that

The holding of the Parker case would apply to any parents who might not [for religious reasons] want their child to be exposed to certain viewpoints in a public school, whether it be discussions limited only to traditional heterosexual marriage; or depictions of adoption families, foster care and other nontraditional family situations; or discussions of differing theories of government, religion, philosophy, science or history. Parker simply states that there is no automatic federal judicial remedy for such objections to educational materials.

In my hometown of Alameda, California, parents with religious objections seek a court order that the local school district allow them to exempt their children from a curriculum designed to prevent bullying of gay students and students whose parents are gay. Of course, Prop. 8 clearly shows that a state-constitutional ban on same-sex marriage does not affect whether a school district will require children to read books such as And Tango Makes Three.

Not surprisingly, Miller's opinion has aroused the anger of Yes on 1 supporters.