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The New Legal Theory That Enables Homophobic Evangelizing in Public Schools

A campaign funded by the religious right has effectively rewritten the constitutional separation of church and state in education.
 
 
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Last month, 8,000 public high school students in Montgomery County, Maryland, went home with fliers informing them that no one is “born gay” and offering therapy if they experienced “unwanted same-sex attraction.”

The group behind the flier, Parents and Friends of Ex-Gays and Gays (PFOX), isn’t the kind one expects to find represented in student backpacks. Peter Sprigg, a board member of PFOX who doubles as a senior fellow at the Family Research Council, recently told Chris Matthews that he believes “gay behavior” should be “criminalized.” PFOX president Greg Quinlan told another talk show host that gays and lesbians practice “sexual cannibalism.”

A number of Montgomery County parents, understandably concerned about the unusual flier, filed a letter of complaint with the school district. “Everything in this flier makes it sound like the goal is to be ex-gay,” said Ms. Yount-Merrell, mother of a high-schooler. “It reiterates a societal view that there’s something wrong with you … if you aren’t heterosexual. And teenagers have a hard enough time.”

In response to student questions, Superintendent Joshua Starr agreed that the flyer was “reprehensible and deplorable.” But he then pointed out, correctly, that he had no choice in the matter. A 2006 decision by the fourth circuit court of appeals made it clear that if the district allowed any outside groups to distribute fliers through the school, it could not exclude groups like PFOX.

The situation in Maryland may strike many readers as an anomalous event. One would think that it involves fringe characters, is unlikely to be repeated, and can be easily fixed with a new policy.

But none of that is true. In fact, similar events are taking place with increasing frequency nationwide, and they represent the wave of the future in America’s public schools. Indeed, at this very moment, the New York state assembly is deliberating a bill – already passed by the senate – that will allow New York’s public schools to double as a taxpayer-subsidized marketing channel for extremist groups of every variety.

How did this happen to our schools?

Appropriately enough, it goes back to a lesson we all used to learn in school – but that many people seem to have forgotten. America’s founders understood very well that the freedom of religion and the separation of church and state are two sides of the same coin. Only by keeping government out of the religion business can we ensure that religion may go about its business freely. They also understood that, as a consequence, freedom of religion is different from freedom of speech. Indeed, they guaranteed those two freedoms in two separate and distinct clauses of the first amendment.

Over the past 20 years, legal advocacy groups of the religious right – a collection of entities that now command budgets totaling over $100m per year – have been pushing a new legal theory, one that has taken hold of some parts of the popular imagination and that has even been enshrined in recent judicial rulings. The essence of the theory is that religion isn’t religion, after all; it’s really just speech from a religious viewpoint. Borrowing from the rhetoric of the civil rights movements, the advocates of the new theory cry “discrimination” in the face of every attempt to treat religion as something different from any other kind of speech.

One implication of this novel theory is firmly embedded in the US supreme court’s 2001 6-3 decision in Milford Central School v The Good News Club. Justice Thomas stated in his majority opinion that to exclude a group from school because it is religious in nature is to discriminate against its religious viewpoint, and therefore to violate its free speech rights. No one challenges the exclusion of partisan political groups using the same thinking – we all recognize that partisan political groups are partisan in nature. But because religion alone is a “viewpoint”, opines Thomas, it is apparently different.