Friday, February 01, 2008

No to Religious Bullies in Schools

The intent of a small set of religious fundamentalists in a wealthy town near Boston continues to backfire. Yesterday's loss was at the U.S. Court of Appeals, First Circuit level in Parker et. al. v. Hurley et al.

Starting with their original complaint, two couples asserted personal religious based rights that do not exist in non-theocratic nations. They demanded:
  • the Lexington School system either notify the parents whenever topics they specify would arise in class or remove their children when such topics arise, regardless of how that happens
  • the schools permit the parents to attend and monitor classes at will
  • "...that no teacher or adult expose their child to any materials or discussions featuring sexual orientation, same-sex unions, or homosexuality without notification..."
Then going to the U.S. District Court, they sued on the federal bases of violation of First and Fourteenth Amendment rights. They claimed their children were being indoctrinated and forced to approve same-sex marriage in opposition to the parents' beliefs. Thus, they also claimed that their right to practice their religion had been violated.

At both the District and appeals level, the judges denied the claim and hope to dramatically expand the rights of religious zealots. In the first trial, Chief Judge Mark L. Wolf provided detailed bases for his rejection. Similarly, yesterday the appeal panel stood up for the Constitution, case law and common sense in clarifying the limits of such religious-based claims.

As an aside, the complaints as well as lead plaintiff David Parker refer to the parents as Judeo-Christians. That phrase is becoming oddly common. However, used by religious fundamentalists, it seems to appear most commonly when what they mean is that they want to control public education and government in general to align them with their particular views.

In addition, the phrase parent rights has rapidly become code that includes trying to establish a variety of right-wing goals at local and state levels. I ran my own little series on this at Marry in Massachusetts. The particular lawsuit in in the mold of trying to use the courts to mint new sets of rights for fundamentalists.

No Dice

Fortunately and logically enough, this effort was worse than a failure for the plaintiffs. Instead of establishing new privileges for fundamentalist parents, the rulings in this case have done the opposite — reinforced the limits of using religion to control public education.

Moreover, there seems to be virtually no chance of the U.S. Supreme Court considering an appeal of this second loss. The judges at both levels were very specific in their citations and reasoning.

Because Parker has not been forthcoming about his funding, we can only surmise its sources. Regardless, two expensive losses in a row should douse the fires of funders, particularly if they read these rulings.

Instead, those who value freedom should take heart. This case law is strong. The plaintiffs threw the best current arguments at high courts. The judges responded with clear and detailed rejections that other courts can and will draw on if necessary.

Their Day(s) in Court

In yesterday's ruling, the panel made it plain repeatedly that they were giving the plaintiffs every benefit. They started (page 4) by citing Otero and stating, "we take the allegations in their complain as true and draw all reasonable inferences in plaintiffs' favor." Then they did.

Note: For this post, page numbers refer to the text of the current ruling.

The panel also dealt extensively (pages 17 through 26) on what standards to apply to the complaints' complex combination of asserted rights and alleged offenses (hybrid situations in legalese). Particularly important (page 21) is "Plaintiffs argue that they have pled a hybrid claim and that this entitles them to strict scrutiny review, which requires defendants to demonstrate a compelling state interest." While that would certainly have benefited them, the panel wrote there that "No published circuit court opinion, including Brown, has ever applied strict scrutiny to a case in which plaintiffs argued they had presented a hybrid claim."

The judges summarized the key complaints, including (pages 12-13):
They claim, under 42 U.S.C. § 1983, violations of their and their children's First Amendment right to the free exercise of religion and of their Fourteenth Amendment due process right to parental autonomy in the upbringing of their children, as well as of their concomitant state rights.3 They also assert a violation of the Massachusetts "opt out" statute, Mass. Gen. Laws ch. 71, § 32A.

The plaintiffs argue that their ability to influence their young children toward their family religious views has been undercut in several respects. First, they believe their children are too young to be introduced to the topic of gay marriage. They also point to the important influence teachers have on this age group. They fear their own inability as parents to counter the school's approval of gay marriage, particularly if parents are given no notice that such curricular materials are in use. As for the children, the parents fear that they are "essentially" required "to affirm a belief inconsistent with and prohibited by their religion." Compl. ¶ 33. The parents assert it is ironic, and unconstitutional under the Free Exercise Clause, for a public school system to show such intolerance towards their own religious beliefs in the name of tolerance.
An amusing footnote (page 12) may smart the plaintiffs and their attorney now. The panel added, "We note that the Supreme Judicial Court has held that the Massachusetts state constitution provides greater protection for free exercise claims then does the federal constitution. Attorney Gen. v. Desilets, 636 N.E.2d 233, 235-36 (Mass. 1994). Plaintiffs brought their suit in federal court and have chosen not to request certification of any state law issues to the Supreme Judicial Court."

The unstated assumption by the plaintiffs seems to have been that they couldn't get what they wanted out of the state courts. So, they went to the federal level. Now they'll never know what might have happened downstream. Their arrogance in rushing to federal courts for the suit and appeal certainly backfired here.

Point by Point

The appeal panel specifically affirmed Judge Wolf's holding that Brown v. Hot, Sexy and Safer Productions "was analytically identical to the present case (and that) the district court applied rational basis review and concluded that the state's interest in preventing discrimination, specifically discrimination targeted at students in school, justified the policy of the Lexington schools (page 14)."

The defendants (the Lexington schools and officials) had included in their arguments that the commonwealth mandates diversity education as well as gives the principals and the superintendent power over what they teach. The plaintiffs did not question the laws and regulations. In fact, as the ruling states (page 16):
Plaintiffs do not contest that the defendants have an interest in promoting tolerance, including for the children (and parents) of gay marriages. The Supreme Court has often referred to the role of public education in the preparation of students for citizenship. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681-85 (1986) (upholding ability of schools to prohibit lewd speech). Given that Massachusetts has recognized gay marriage under its state constitution, it is entirely rational for its schools to educate their students regarding that recognition.
Moreover, on the next page, the ruling continues, "The fact that a school promotes tolerance of different sexual orientations and gay marriage when such tolerance is anathema to some religious groups does not constitute targeting." The schools' policy was evenhanded, in line with related laws and case law. To me, the ruling implies, you can be intolerant but can't force others to accommodate your intolerance.

The plaintiffs made much in written and oral arguments of the young, impressionable ages of their children. Here too, the judges were eager to evaluate its role in the suit. The panel cited two cases (page 28) where the young age of children in free-speech issues was relevant. It further supported the plaintiffs in ruling, "We see no principled reason why the age of students should be irrelevant in Free Exercise Clause cases." Thus, the defendants' contention that Brown controlled this aspect did not hold.

However, even giving the plaintiffs that latitude, the panel did not agree with the allegations. The judges also dismissed the applicability (page 29) of Troxel v. Granville, noting that accurate interpretation of it was that "the state cannot prevent parents from choosing a specific educational program." That clearly was not what happened in Lexington.

More powerfully (pages 29 and 30), the panel brushed off the claims that their demands on the schools were extensions of Myer v. Nebraska and Pierce v. Society of Sisters. The former is an oft cited 1923 U.S. Supreme Court case that "found unconstitutional a prohibition on the teaching of foreign languages to young children in part because it interfered with 'the power of parents to control the education of their own.'" In the latter 1925 case, "the Court overturned an Oregon statute compelling children to attend public schools on the grounds that the statute 'unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing of children under their control.'"

The panel also introduced a directly applicable case (page 37), Mozert v. Hawkins County Board of Education. The 1987 decision was at the same level, the U.S. Court of Appeals, Sixth Circuit. There, two parents sued for exemption from a series of texts that they allege "taught values contrary to their religious beliefs and that, as a result, the school violated the parents' religious beliefs by allowing their children to read the books and violated their children's religious belief by requiring the children to read them." Here and as the current panel found, exposure to ideas "did not constitute a constitutionally significant burden on the plaintiff's free exercise of religion."

The current ruling got to the core of this case in noting, "In so holding, the court emphasized that 'the evil prohibited by the Free Exercise Clause' is 'governmental compulsion either to do or refrain from doing an act forbidden or required by one's religion, or to affirm or disavow a belief forbidden or required by one's religion,' and reading or even discussing the books did not compel such action or affirmation."

The pivot for the free-exercise aspect of the case, according to the panel (page 38) was the claim that exposure to these early reader books constituted indoctrination. Instead, the panel found Instead, the panel found (page 40), "(T)hese books do not endorse gay marriage or homosexuality, or even address these topics explicitly, but merely describe how other children might come from families that look different from one's own."

It is a fair inference that the reading of King and King (sic) is precisely intended to influence the listening children toward tolerance of gay marriage. That was the point of why that book was chosen and used. Even assuming there there is a continuum along which an intent to influence could become an attempt to indoctrinate, however this case is firmly on the influence-toward-tolerance end. There is no evidence of systemic indoctrination.

Ringing Implications

Here we come to a huge defeat for those who would foist their religious and moral beliefs on all students and all parents. This court, as the Supreme Court has so many times, reinforces the rights to practice religion, but not any right to force it on others — in this case, even under the guise of freshly asserted rights.

Moreover, in citing cases related to familial privacy, the ruling (page 32) concludes, "In sum, the substantive due process clause by itself, either in its parental control or its privacy focus, does not give plaintiffs the degree of control over their children's education that their requested relief seeks."

Of course, this case is a fabulous example of either hypocrisy or irony, depending on your tolerance for contradiction. The plaintiffs are among that group fond of stating such claims as activist judges legislate from the bench. That seems only applicable for judicial interpretations with which they disagree. They have certainly tried to game to system here to get the courts to help them manufacture non-existent rights for parents to dictate to public schools.

By pressing this to the federal appeals level, they have done the vast majority of Americans and all public schools a huge favor.

Yesterday was a good one for freedom from religious oppression.

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Paul Jamieson said...






massmarrier said...

There is something we can mirror each other in writing — where has the common sense gone?

To those of us parents who train our children to know, think and understand, we expect reinforcement in schools. We expect teachers to help us train our offspring to love learning, to have essential knowledge to analyze, be safe and deal realistically with the world. Keeping children ignorant is decidedly a failure of common sense.

Instead, Judge Mark Wolf and this affirming three-judge panel clearly have said the emotional and irrational must yield to common sense here.

John said...

This was a victory for common sense, but really there is nothing else the court could have said.

We can never tolerate the heckler's veto.

massmarrier said...

And, John, your point over at Live, Love and Learn about the heckler's veto is one we need to keep in mind. I was surprised the appeals court even took the case when Wolf was so thorough and plain in his own common sense ruling. However, the panel enriched and clarified the finding.

John said...

I think it's a good thing the appeals court listened to the appeal. There is no way anyone can say that justice was short-circuited.

Paul Jamieson said...

More blustering... cmon this is KINDERGARTEN

"We expect teachers to help us train our offspring to love learning, to have essential knowledge to analyze, be safe and deal realistically with the world. Keeping children ignorant is decidedly a failure of common sense"

I mean cmon, are you for real?

Have you ever been in a kindergarten class?

you people are a disgrace to common sense.

John said...

There is no talk of sexuality in Kindergarten, Paul, and you know it.

The mere acknowledgment that there are families headed by gay couples, and that those couples are a natural, normal and vibrant part of society is offensive only to bigots

Paul Jamieson said...

Have you ever read "King & King" smartass?

Paul Jamieson said...

You are correct though that we need to teach diversity. And if that is true, then we should teach the little ones about HIV/AIDS, anal fistulas, colon injury, colon parasites, deadly hepatitis C and the many other joys of this wonderful lifestyle. Don't discount the anal rimming, golden showers, and FISTING which they will no doubt partake of. This country is full of naive, politically correct ignoramuses who know nothing whatsoever about this lifestyle. Why don't you educate yourselves on this before you tout it to innocent children as desirable and viable?

massmarrier said...

Please keep it civil, Mr. Jamieson. There is a commenting policy. You are on the edge.

I can't write for John or anyone else, but I have read it and seen the very unshocking cartoon images. It is not sexual and the implied kiss behind the image of a heart that seem to offend the plaintiffs so deeply is not about to upset any children.

Even for kindergarten and primary school kids, treating them like mushrooms is not service to them. Parents who are opposed to same-sex marriage need to explain to their kids that in this state a man can marry a man and a woman can marry a woman. They can say they don't agree with it and bring their religious beliefs in too. These are teaching moments.

SSM is an everyday reality in Massachusetts, in Lexington and Boxford as well as Boston and Cambridge. Children will know peers from such families, why strand them in ignorance? King & King is about differences and tolerance.

Paul Jamieson said...

"why strand them in ignorance"

I agree - my comments stand

John said...

I have read the book; it is totally innocent.

Paul Jamieson said...

"Children will know peers from such families"

This is the big LIE that you love to tell

Chances are - children will never know peers from such families.

Anonymous said...

I taught in the Lexington school district for 12 years. I voluntarily left the system after moving out of state. IMHO, the Gay and Lesbian agenda in the Lexington school district is way out of control. In Kindergarten they read "Two Kings" and "Heather has Two Mommies." I suppose these books are great for children who find themselves in that type of family structure; However, parents of children in more traditional settings ought to have the right to discuss the topic with their kids in the privacy of their own homes. I recognize that in order to combat prejudice and bigotry it is important to encourage tolerance and open-mindedness. However, young elementary school children are often not developmentally ready for topics surrounding alternative lifestyles. They are simply not ready to discuss the implications of same-sex partnerships. What bothers me most about this ruling is that the school (state) can strip parents of their parental rights. Mr. Parker wasn't asking to change the curriculum. He was asking for PARENTAL NOTIFICATION so as to OPT-OUT. That in my book IS NOT AN UNREASONABLE REQUEST. My 2 cents worth.

massmarrier said...

Thanks for your perspective.

Likewise for chipping in, I align with the two legal rulings. What you call an agenda, the judges noted was in line with the state mandates for diversity education. Here, if the parents choose to pretend that what their kids see on the street and hear from classmates -- two-mom families, for example -- says things about the parents, not the schools.

Those books were at age level and designed to be easy for kids in those classes to handle. The schools met the parents' rights and the laws for opting out. To hold that these were primarily sex education is unsupportable.

The two litigating families got all their legal rights. They just wanted to create new ones. It's unfortunate for them that they can't get all they demand, but from here, it appears they are attempting to alter and control the school system for their goals. I guess that's what you'd call an agenda.

Paul Jamieson said...


you REALLY are the spinmeister buddy

AND you can't handle the truth

of course WE have an AGENDA!


let common sense prevail