Later this month, the U.S. Supreme Court will hear arguments in cases that ask whether the 14th Amendment requires the states to recognize same-sex marriages. Given trends in the country and recent decisions by the high court, many legal observers expect the justices to rule in favor of same-sex unions.
Thirty years ago, the Supreme Court had a different gay rights issue pending before it. And although the outcome was muted by a tie among the justices, the case was an important one both for gay rights and for the free speech rights of teachers.
In Board of Education of Oklahoma City v. National Gay Task Force, the justices weighed the constitutionality of a state law that barred teachers from “advocating, encouraging, or promoting public or private homosexual activity in a manner that creates a substantial risk that such conduct will come to the attention of schoolchildren or school employees.”
The Oklahoma legislature had enacted the law in 1978, the same year that California voters had defeated a ballot initiative containing similar language. The Oklahoma law, which also contained a provision barring teachers from engaging in “public homosexual activity,” was challenged by the National Gay Task Force.
A federal district court upheld both the “activity” and “advocacy” provisions of the law. The U.S. Court of Appeals for the 10th Circuit, in Denver, upheld the first provision but struck down the prohibition against speech about homosexuality. The Oklahoma City school board decided to appeal that decision to the U.S. Supreme Court, and the justices granted review.
On Jan. 14, 1985, the high court heard arguments in the case, as reported in Education Week by Alina Tugend. Arguing for the school board, Dennis W. Arrow said the law was justified by teachers’ traditional duties as role models.
Teachers have “a duty to promote traditional cultural values, be they moral, social, or political,” as well as “to provide for the psychological as well as physical welfare of the children in their custody,” Arrow told the justices.
Liberal Justice William J. Brennan Jr. asked Arrow whether the statute would apply to a teacher who said openly to one of his colleagues in school, “I wish they would leave those homosexuals alone—they’re not hurting anyone but themselves.”
Arrow replied such a statement would be protected under the First Amendment, as would a teacher’s opinion that the law should be repealed. But the statute would apply if a teacher directly advocated sodomy, in or out of school, because that would be encouraging students to commit a crime, he said.
Arguing against the law was Laurence H. Tribe, the Harvard University law professor and a leading constitutional scholar. He said the the law forced teachers to “hedge and trim on every word” regarding homosexuality for fear of being dismissed.
“This law in effect tells teachers, ‘You had better shut up about this subject, or if you talk about it, you had better be totally hostile to homosexuals,’” Tribe told the justices.
There were only eight justices on the bench when the case was argued. Justice Lewis F. Powell Jr. was absent for an extended time, dealing with prostate cancer.
Without Powell’s participation in the case, the justices were deadlocked, with four justices voting on each side. Under the court’s practice, a tie means that the lower court’s decision is affirmed without an opinion.
The outcome was announced on March 26, and Tom Mirga reported on it in the April 3, 1985, issue of Education Week.
“Justice Powell’s decision not to become involved in the case—which prevented the Court from speaking in clear terms on the issue of homosexual teachers’ free-speech rights—took many observers by surprise,” Mirga wrote, because Powell had returned to the court by that spring and had agreed to have some cases he missed set for reargument.
But not the Oklahoma case involving homosexuality, a subject that scholars later learned to be one of great discomfort for Powell. In the court’s next term, he cast the decisive fifth vote to uphold a state law against homosexual sodomy in Bowers v. Hardwick, a decision overruled in 2003 in Lawrence v. Texas.
During that next term, Powell even remarked to one of his law clerks that “I don’t believe I’ve ever met a homosexual.” (As Joyce Murdoch and Deb Pryce wrote in their 2001 book, Courting Justice: Gay Men and Lesbians v. the Supreme Court, that clerk happened to be gay, though he didn’t disclose that fact to his boss. After his 1987 retirement, Powell said he had “probably made a mistake” with his vote in Bowers.)
Many scholars believe that if Powell had participated in the Oklahoma case, he would have voted to uphold the state ban on teacher speech on homosexuality. That might have had a big impact on education over the last 30 years.