Appellate Law

CA1: anti-gay parents that don?t like gay people lose establishment clause challenge

By S. COTUS

Parker v. Town of Lexington, No. 07-1528.  I was going to call this breaking news, but it isn?t.  A bunch of parents are angry that ?[T]hey must be given prior notice by the school and the opportunity to exempt their young children from exposure to books they find religiously repugnant.?  And by ?religiously repugnant? they mean ?contains neutral or friendly references? to gay people.  Or, in the words of the court, ?Both families assert that they are devout Judeo-Christians and that a core belief of their religion is that homosexual behavior and gay marriage are immoral and violate God's law.?  (I think not being a lawyer violates god?s law, but you don?t see me suing people for that.)

You can read on.   Of course, these are the same people that want to make all the kids say "Under God" in school.

I never understood why the Supreme Court has held that there is a substantive due process right to indoctrinate your kids into your own religion, because I think a general First Amendment in choosing one?s own religion is far greater than the interest in parents in ramming a religion down their kid?s throats.  For some reason the First puts a lot of effort into this opinion, and talks about how Massachusetts law guides the development of school curriculums, which, I am sure is frightfully interesting if you actually represent schools, but has little to do with the constitutional issues here.

Complicating the matter a tad is the fact that ?Massachusetts does have a statute that requires parents be given notice and the opportunity to exempt their children from curriculum which primarily involves human sexual education or human sexuality issues. Mass. Gen. Laws ch. 71, § 32A.?  The First rejects the argument that under this statute, Brown v. Hot, Sexy & Safer Productions, 68 F.3d 525 (1st Cir. 1995), a plaintiff?s substantive due process was not violated by a failure to notify parents, and Brown involved high school students anyway (and the parents lost, because, as we all know, the courts look at the impressionability of young children in these establishment clause things).

Looking at the substance of their claim, the First looks at Employment Division v. Smith, 494 U.S. 872 (1990), discusses the possibility of ?hybrid situation? involving something that normally be judged under strict scrutiny and a lower tier.  However, the First says that Wisconsin v. Yoder, 406 U.S. 205 (1972) really applies (and survived Smith), but that unlike the Amish these people (that really don?t like gay people) live amongst us, and therefore can?t avail themselves of Yoder?s protections.  So, get this straight: if you want to invoke Yoder, don?t drive motorcars, go to shopping malls, or generally try to be like us normal people.

I could go on, but I would in essence be just reciting all the arguments that the First knocked down, so you wouldn?t gain anything by reading my summary.  If this area of law interests you, obviously you should read the case.

Anyway, I am somewhat amused by the fact that the parents will have to tell the kids who seem to be arguing that they (i.e. the kids) do not want to be exposed to idea lost a lawsuit on the basis of Brown v. Hot, Sexy & Safer Productions, 68 F.3d 525 (1st Cir. 1995).  Sorry, kids.  I guess you will have to make up your own minds.

Full post as published by Appellate Law and Practice on January 31, 2008 (boomark / email).