Gay opt-out decision may head to U.S. Supreme Court

By |2018-01-16T08:15:27-05:00February 7th, 2008|News|

By Lisa Keen

Keen News Service

In a decision that could be destined for the U.S. Supreme Court, a federal appeals panel ruled this month that a public school does not violate the religious freedom of a family who objects to homosexuality when classroom books or discussions mention the existence of gay people or families without first notifying the parents.
“The Free Exercise Clause, importantly, is not a general protection of religion or religious belief,” said the three-judge panel of the U.S. Circuit Court of Appeals for the First Circuit. “It has a more limited reach of protecting the free exercise of religion.”
“[T]he mere fact that a child is exposed on occasion in public school to a concept offensive to a parent’s religious belief does not inhibit the parent from instructing the child differently,” wrote Judge Sandra Lynch (a Clinton appointee). She was joined by two Republican appointees, Judge Jeffrey Howard (appointed by the current President Bush) and by Senior Judge Norman Stahl (appointed by the senior President Bush).
The conflict erupted with tremendous publicity in April 2005 when David Parker, the father of a six-year-old public school student in Lexington, Massachusetts, was arrested for trespassing at his son’s elementary school because he refused to leave a meeting with school officials. Parker said he wouldn’t leave the building after the Superintendent of Schools, William Hurley, refused to sign an agreement to notify him in advance of any discussion of homosexuality in his son’s class.
Specifically, Parker was upset that a book illustrating the diversity of family configurations -including gay households, along with straight couple households, single mothers, and grandparent households– was distributed to members of his son’s kindergarten class. A second couple objected to their second grader’s class hearing a teacher read to the class a book about two princes who fall in love and get married.
The Parkers and the other couple filed a lawsuit, arguing that their rights to free exercise of religion, as well as their rights to privacy, due process, and parental rights were violated by not allowing them to opt out their children from any classroom discussion which mentioned homosexuality.
The court relied on a well-recognized principle from previous court rulings that, while parents can choose whether to send their kids to public or private schools, they cannot -if they choose public– control what that school teaches. The lawsuit was cast very carefully to evade this principle by claiming that parents deserved a right to prior notice before sexual orientation or gay marriage was discussed in a classroom. Requiring such prior notice would, of course, put a chilling effect on the selection of books and materials that included these subjects.
The decision notes that the parents “have chosen to place their children in public schools” and that “Exposure to the materials in dispute here will not automatically and irreversibly prevent the parents from raising [their children] in the religious belief that gay marriage is immoral.”
“If the school system has been insufficiently sensitive to such religious beliefs,” said the court, “the plaintiffs may seek recourse to the normal political processes for change in the town and state. They are not entitled to a federal judicial remedy under the U.S. Constitution.”
An attorney for the parents said he is still evaluating the decision and has not yet made a determination concerning appeal. But a group which takes credit for passing a parental notification law in regards to any sexual education, claims the Parkers’ attorneys are “already preparing” their appeal to the U.S. Supreme Court.

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Between The Lines has been publishing LGBTQ-related content in Southeast Michigan since the early '90s. This year marks the publication's 27th anniversary.