Federal court denies appeal in David Parker Civil Rights case on homosexual programs in elementary school.
Appeals Judge issues outrageous ruling embracing homosexual "tolerance" lessons, ignoring Constitutional religious guarantees.
Uses notorious "1999 Curriculum Frameworks" in argument.
Parker's lawyers already preparing to appeal case to US Supreme Court
Federal Appeals Judge Sandra L. Lynch, a Clinton appointee, wrote the opinion.
BOSTON, MASSACHUSETTS (JAN. 31, 2008) A three-judge federal appeals panel issued a bizarre and horrific ruling today denying the recent appeal by David Parker, his wife Tonia, and Rob and Robin Wirthlin in their federal Civil Rights case against the Lexington school system. The ruling, written Judge Sandra L. Lynch, upholds the dismissal of the case by Federal Judge Mark Wolf, agrees with his reasoning (with some minor exceptions) and even goes a bit further.
Full text of ruling by First Circuit Court of
Appeals (44 pages, Adobe Acrobat format)
Strange legal reasoning
Judge Lynch shows little interest in the major point made by Parker attorney Rob Sinsheimer that the basic Constitutional protections of religious belief are being trampled on by the school. Instead, she attempts to show how Massachusetts law makes it necessary. She digs pretty deep to do that. In her ruling references 1993 Massachusetts Education Reform Act as mandating that standards "be designed to inculcate respect for the cultural, ethnic and racial diversity of the commonwealth."
Lynch then uses the extremely controversial 1999 Comprehensive Health Curriculum Framework to justify homosexual-oriented "tolerance" lessons in the lower grades. She quotes from its "measurable goals" in the lower grades, such as "define sexual orientation using the correct terminology." But Lynch completely ignores the fact that that document was clearly intended as a non-mandatory, informal set of guidelines. That is why Planned Parenthood has filed bill H597 this year to make that document a legal guideline, not informal. (Even the resources listed in the document are from the radical fringe.)
Lynch also presents an interesting analysis of the state Parental Notification Law (Ch. 71, Sec. 32A) which succinctly explains that it is so watered down -- and is particularly compromised by the Department of Education's "advisory rulings" -- that it is essentially useless in this situation.
Lynch then observes that the 2003 Goodridge decision held "that the state constitution mandates the recognition of same-sex marriage" and therefore, she implies, the schools must recognize it also.
Most of the rest of Lynch's reasoning consists of a merry-go-round of excerpts from various "case law" decisions going back several years. That is always suspicious, as we've seen throughout this case, because one can cherry-pick language from past decisions (often out of context) almost forever.
Banality of evil?
From the text of ruling. To read these words is utterly mind-boggling. These judges see adults in public schools normalizing homosexuality to young children without their parents' knowledge or consent as merely a "sensitive" issue that the school has a perfect right to perform. To read the concluding words of Lynch's ruling is to experience a real sense of the term "banality of evil":
First, as to the parents' free exercise rights, the 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. A parent whose "child is exposed to sensitive topics or information [at school] remains free to discuss these matters and to place them in the family's moral or religious context, or to supplement the information with more appropriate materials." (C.N., 430 F.3d at 185) . . . The parents here did in fact have notice, if not prior notice, of the books and of the school's overall intent to promote toleration of same-sex marriage, and they retained their ability to discuss the material and subject matter with their children. Our outcome does not turn, however, on whether the parents had notice.
Turning to the children's free exercise rights, we cannot see how [The Parkers' son's] free exercise right was burdened at all: two books were made available to him, but he was never required to read them or have them read to him. Further, these 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. There is no free exercise right to be free from any reference in public elementary schools to the existence of families in which the parents are of different gender combinations.
[The Wirthlin's son] has a more significant claim, both because he was required to sit through a classroom reading of King and King and because that book affirmatively endorses homosexuality and gay marriage. It is a fair inference that the reading of King and King was 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 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. There is no allegation that Joey was asked to affirm gay marriage. Requiring a student to read a particular book is generally not coercive of free exercise rights.
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 reading of King and King was not instruction in religion or religious beliefs. . .
On the facts, there is no viable claim of "indoctrination" here. Without suggesting that such showings would suffice to establish a claim of indoctrination, we note the plaintiffs' children were not forced to read the books on pain of suspension. Nor were they subject to a constant stream of like materials. There is no allegation here of a formalized curriculum requiring students to read many books affirming gay marriage. . . The reading by a teacher of one book, or even three, and even if to a young and impressionable child, does not constitute "indoctrination."
Because plaintiffs do not allege facts that give rise to claims of constitutional magnitude, the district court did not err in granting defendants' motion to dismiss the claims under the U.S. Constitution.
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.
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. See Smith, 494 U.S. at 890. They are not entitled to a federal judicial remedy under the U.S. Constitution. We affirm the district court's dismissal with prejudice of plaintiffs' federal claims and its dismissal without prejudice of the state claims so that they may be reinstated, should plaintiffs choose, in state court.
[From Wikipedia: The Banality of Evil is a phrase coined in 1963 by Hannah Arendt in her work Eichmann in Jerusalem. It describes the thesis that the great evils in history generally, and the Holocaust in particular, were not executed by fanatics or sociopaths but rather by ordinary people who accepted the premises of their state and therefore participated with the view that their actions were normal.]
On to the US Supreme Court
Jeffrey Denner, of Denner Pelligrino in Boston and lead attorney of David Parker's legal team, announced that they are immediately preparing to go before the US Supreme Court on this case. "We are fully committed to go forward," he said today. "We will continue to fight on all the fronts that we need to."
Remembering the famous St. Patrick's Boston Parade case in the mid 1990's, Parker said that he is not at all discouraged. In that case, known as the Hurley case, an openly homosexual group wanted to march in the South Boston St. Patrick's Day Parade, but the organizers refused to allow them. With the help of the liberal legal establishment the group sued -- and won -- claiming that the parade was a "public accommodation" and may not discriminate. Famed pro-family attorney Chester Darling, arguing the case pro-bono for the parade organizers, kept appealing the case and lost on the local, state, and federal level 17 times. Finally, the US Supreme Court heard the case and eventually ruled 9-0 in favor of the parade organizers -- that the parade's freedom of speech trumps political correctness!
"This ruling will surely embolden and enable the schools even more on this if it's not fought," said Parker. "There's going to be an accountability, you can count on it."