Trying to Trick the Supremes

Take a quick peek into the devious mind of winger lawyers. In the fruitless but continuing appeals of the Mad Dad's kiddie early reader case, I had wondered what happened to the loudly announced plea to the U.S. Supreme Court. Having sat through a couple of appeals hearings, I was virtually certain the Supremes would not touch this with a 9-foot Czech. Yet I hadn't seen the decline-without-comment notice.

Turns out that they just filed the appeal request. You can read the 41-page writ of certiorari here. The mentions of possible supporting cases are here in the 111-page appendices. If you've forgotten your appeals-courts terms, that means asking the Supremes to think about letting them present (beg) for reconsideration.

The two couples in this comedy lost badly at the U.S. District and Appeals courts. A read of the writ doesn't look any better for them. The law firm, Denner Pellegrino, LLP, dug up lots of extraneous case law, but they didn't add anything of substance. The original trial judge, Mark L. Wolf, already waved off the same assertions the writ makes, and did so point by point.

The tortured and melodramatic twisting of the facts didn't cut it at either U.S. court level. I can't for a second believe our high court justices will do much more than chuckle and sigh. I expect they'll blow this off easily after the defendants file a response. Then, it's back to a futile effort by the plaintiffs at Massachusetts court in the case they still won't accept defeat.

For the Supremes to take this case on, they have to accept that one of the three questions are real and significant legal issues. (Actually, this is almost certainly the work of Robert S. Sinsheimer, the trial attorney from the firm on this case.) These are, from the writ:

1. WHETHER OBJECTING PARENTS HAVE A CONSTITUTIONAL RIGHT TO OPT THEIR PUBLIC SCHOOL CHILDREN OUT OF, OR EVEN TO RECEIVE NOTICE OF, UNDISPUTED GOVERNMENT EFFORTS TO INDOCTRINATE KINDERGARTEN, FIRST AND SECOND GRADE SCHOOL CHILDREN INTO THE PROPRIETY, INDEED DESIRABILITY, OF SAME GENDER MARRIAGE?
2. WHETHER A PUBLIC SCHOOL’S OPEN AND SPECIFIC INTENTION TO INDOCTRINATE KINDERGARTEN THROUGH SECOND GRADE CHILDREN INTO DISBELIEVING CORE TENETS OF THEIR FAMILIES’ DEEPLY HELD RELIGIOUS FAITH CONSTITUTES A BURDEN ON THE FAMILIES’ FREE EXERCISE OF RELIGION?
3. WHETHER THE “HYBRID RIGHTS” DOCTRINE ENUNCIATED IN EMPLOYMENT DIV. V. SMITH, 494 U.S. 872 (1990) PROVIDES A CLAIM FOR FAMILIES WHO WISH TO PROTECT THE RELIGIOUS BELIEFS OF VERY YOUNG CHILDREN FROM MORAL INDOCTRINATION BY PUBLIC SCHOOL TEACHERS CONCERNING THE DEFINITION OF MARRIAGE?

You can quickly see why this case is so risible and why the trial and appeals judges had no problem ruling against the plaintiffs. For example:

• Indoctrination. In court and filings, the plaintiffs has consistently, even relentlessly, defined what we would all exposure to reality as indoctrination. They say that even to hear that there are homosexual couples with kids and legally married same-sex couples is indoctrination and propaganda. The Mad Dad seems to believe that. When Chief Judge Wolf pointed out that mentioning the law of the land is plain old education, that set the tone.. Plaintiffs put their real argument on picture and early-reader books that comply with the diversity regulations of the local and state schools. They claim that showing drawings of happy SS couples and their kids interferes with religious practice. Here both justices in their decisions told them they were free to teach their kids whatever religious principals they wanted and free to disagree with the diversity curriculum. In fact, that's a normally expected duty of parents. You'd think that self-identified conservative Christians would have it no other way. The justices did not see any constraint on their freedom of religion.
• Hybrid rights. The major ploy in the writ is on pages 26 and 27. There seems to be a hope that if plaintiffs claim that there is a conflict at the U.S. Circuit level, the Supremes should feel intrigued enough to look at the case. This involved the relatively complex concept that if one federal right is not enough to justify a suit, a combination of a couple together may be. The justices who already handled this case said no go.

It's a long shot but maybe their only chance to pound on the third argument. As the writ tries to draw the Supremes, one cited case's "use of the phrase 'hybrid situations' leaves open a complex and fundamental question begging for this Court’s resolution: how and to what extent the Free Exercise Clause continues to support parents’ fundamental rights to raise their own children in a complex pluralistic society." That's a pretty cynical appeal to the Supremes vanity and power.

Unfortunately, the plaintiffs' assertions of absolute rights of parents to determining what their kids hear in school has been met so far with incredulity. Neither the law nor case law supports what is in effect parents' dictation of curriculum. Chief Judge Wolf for one told the parents to go ahead and teach the kids religion to suit them, but don't expect the school to do whatever you want. There are private religious schools and home schooling for that kind of extremism.

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Tags: massmarrier, Massachusetts, Denner, Mad Dad, Lexington, U.S. District Court, U.S. Appeals Court, U.S. Supreme Court