Standing there as the “Yes on 8” rally outside Oakland’s Foothill Missionary Baptist Church began to wind down today, I noticed a gentleman in the crowd approach an elderly woman who was holding a “Gay marriage = legal perversion” sign. I eavesdropped – hey, that’s my job – as he told her he agreed with her sign completely, but he urged her to ditch it and just use a “Yes on 8” sign instead because her homemade sign’s sentiment might turn off some voters.
Is saying one thing but meaning another common in political campaigns of all kinds? Certainly. Is it disingenuous? You bet.
It seems to be a similar situation with the “Yes on 8” campaign’s focus on what would be taught to California’s public schoolchildren should this measure fail.
They note that in Massachusetts, where same-sex marriage has been legal since 2004, parents can’t “opt out” from having their children hear about same-sex marriage in public school. That’s true; a federal judge there ruled so, and was affirmed by the 1st U.S. Circuit Court of Appeals earlier this year.
“Public schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student agree with or affirm those ideas, or even participate in discussions about them,” the appeals court wrote.
Proposition 8’s proponents and opponents are going back and forth now on whether California law will allow an opt-out. As I’ve noted before, California Education Code section 51240 says:
(a) If any part of a school’s instruction in health conflicts with the religious training and beliefs of a parent or guardian of a pupil, the pupil, upon written request of the parent or guardian, shall be excused from the part of the instruction that conflicts with the religious training and beliefs.
(b) For purposes of this section, “religious training and beliefs” includes personal moral convictions.
Another section, 51932(b), might exempt “instruction or materials that discuss gender, sexual orientation, or family life and do not discuss human reproductive organs and their functions” from an opt-out, but that might only apply to the California Comprehensive Sexual Health and HIV/AIDS Prevention Education Act, a whole separate section of the code enacted in 2004. I’m not sure.
Yet there’s a deeper and more important question here than intricacies of the Education Code – a question about what our public schools are supposed to be.
“Public schools often walk a tightrope between the many competing constitutional demands made by parents, students, teachers, and the schools’ other constituents… The balance the school struck here does not offend the Free Exercise or Due Process Clauses of the U.S. Constitution,” the appeals court wrote in the Massachusetts case. “We do not suggest that the school’s choice of books for young students has not deeply offended the plaintiffs’ sincerely held religious beliefs. If the school system has been insufficiently sensitive to such religious beliefs, 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.”
In other words, if you don’t like the curriculum, go petition your school board or run for office but don’t come crying to the courts. And the bigger picture is that public schools are not supposed to be beholden to religious beliefs; they’re supposed to teach the law of the land, the world as it is.
Right now, same-sex marriage is legal in California; the state Supreme Court in May ruled 4-3 that state law’s bans on the practice were unconstitutional, and an estimated 11,000 same-sex couples have tied the knot here since then.
Same-sex marriage foes often refer to the California Supreme Court’s majority and the judges who decided the Massachusetts case as “activist judges,” but that’s usually just what a lawsuit’s losers call judges who ruled against them. For the record, the California Supreme Court’s opinion was written by Chief Justice Ronald George, an appointee of Republican Gov. Pete Wilson; he was joined by justices Joyce Kennard (appointed by Republican Gov. George Deukmejian), Kathryn Werdegar (Wilson, again) and Carlos Moreno (Democratic Gov. Gray Davis). And in the Massachusetts case, the trial judge was a Reagan appointee while one of the appellate judges was a George H.W. Bush appointee, one a Clinton appointee and one a George W. Bush appointee; their ruling was unanimous, and the U.S. Supreme Court this month refused to review it.
Activists one and all? Hardly. They’re jurists interpreting and state and federal laws and constitutions, as their job descriptions entail.
Hence Proposition 8, which would render the state Supreme Court’s ruling moot by amending the state constitution to explicitly revoke the right that the court recognized in May.
Now, parents will always remain free to raise their children in whatever religious and moral tradition they choose; in fact, we can probably all agree that more parents should be more active in doing so rather than relying on schools, television, the streets to raise their kids.
But public schools are public spaces in which all children are supposed to be educated in common, not in individual families’ religious and moral beliefs. Would Jewish parents who keep a kosher kitchen get a heads-up before their child’s class reads a story about eating cheeseburgers? Of course not.
Public schools teach society’s laws and norms. If same-sex marriage remains the law of the land after Nov. 4, that’s what kids should learn; if it’s banned, that’s what kids should learn. It’ll be up to their parents, as it always has been, to fill in the blanks at home.
What the “Yes on 8” campaign is really saying is that the right to same-sex marriage must be revoked now because if it’s not, their kids will learn in public school that their parents’ views don’t jibe with the law of the land. Perhaps that’s not a conversation they relish having with their kids.
And to let any parents pull a child out of any discussion of other thoughts, lifestyles and beliefs creates a “boy in the bubble” scenario, a sort of societal sensory deprivation tank that defeats public schools’ very purpose.
If California voters see fit to revoke a constitutional right recognized by our Supreme Court this Nov. 4, so be it – that’s the choice we face; I voice no opinion on that here. But don’t believe for a minute that we’re just doing it for public schoolchildren – as someone who has seen this battle and this campaign unfold, I just don’t think it’s so.