Parental Rights and Same Sex Marriage
One of the commercials from the Prop 8 campaign has been shown to several witnesses. It is instructive to see their responses.
For those of you from outside CA, this was the commercial that showed that parents from MA were upset by what their second grader was being taught about homosexuality without their permission. On the first day, there was this report of the response to this ad from one of the plaintiffs. This report comes from the Oakland Tribune, on-line edition.
Plaintiff Paul Katami ….grew visibly upset when asked about the Proposition 8 campaign and its reliance on the slogan, “Protect our Children.” He called the campaign insulting. “If you put my nieces and nephews on the stand right now, I’d be the cool uncle,” he said, chuckling.
Then, growing serious, he continued by choking up at the thought that gay marriage would harm children. “There is no recovering from that,” he testified.
Lawyer David Boies played some of the campaign videos that focused on harm to children by the Yes on Proposition 8 backers. How did you feel seeing that video? Boies asked.
“I’d be lying if I didn’t say my heart was racing and I was angry watching it,” Katami said after the video ended…. (Note from JRM: I don’t know what video they are talking about here. Based on this report from Andy Pugno, I presume it was the video that is described in the next segment, but I’m not sure.)
In the afternoon session… Brian Raum, lawyer for the Alliance Defense Fund, … started by playing a video from the Proposition 8 campaign featuring a Massachusetts heterosexual couple decrying how their second-grader was exposed to teachings about homosexuality at school. Raum is asking Katami about whether he believes it is acceptable for sexuality and homosexuality to be taught to first- and second-graders; Katami is taking a measured approach, pointing out that without children, it is hard to fully evaluate what is appropriate to teach young children about such issues at certain ages.
That seems like a sensible answer to me: he doesn’t know what would be appropriate, at what age. Here is Andy Pugno’s report of the same encounter:
You’ll remember that the campaign had informed voters that legally recognizing same-sex marriage would interfere with the rights of parents to raise their own children according to their own beliefs. The witness actually admitted that he believes parents should have the primary responsibility for instilling moral values in children, but still couldn’t see that reasonable voters would feel the need to “protect our children” from laws that infringe on those parental rights.
Contrast that with the views of Professor George Chauncey of Yale University, today’s expert witness. This report comes from Andy Pugno:
After viewing a video featuring a husband and wife in Massachusetts who objected to the subject of gay marriage being forced upon their second grade son without their permission, Chauncey said he believed the teaching about homosexual marriage was, in fact, an appropriate subject for young children to be taught, even if it is over the objection of their parents.
OK, look. I don’t care which of these guys you agree with. My point is only this: at what age kids should learn about homosexuality is a reasonable question, about which reasonable people can disagree. Shouldn’t the parents be the ones to decide? And even if you don’t believe that, why in the world would you think the courts, or any agents of the state should decide?
This is what we thought this case was about. The plaintiffs still don’t seem to understand that. This may be why they keep losing elections. they don’t take the arguments of their opponents seriously.
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Might be instructive to ask them, which should a kid learn first: that all babies come from one man and one woman, or that “you can love anyone sexually”, and babies come from a technicality.
There is an obvious conflict over priorities.
That conflict is a legitimate topic to raise during a single issue campaign about the laws governing our most pro-child social institution.
Marriage has many overflow effects. The primacy of parental responsiblity for the well-being and education of their children is one such overflow. If we take that out of marriage, or if we beaten it down into smashed bits and pieces, then, the lone parent or unwed parents will be made far more vulnerable to the excesses inherent in the exercise of governmental authority.
I guess it is like this: if our social institutions do not occupy their proper place in our civilizatons, then, government will expand to occupy it for us.
Marty
the whole thrust of the sexual revolution has been to separate sexual activity from child-bearing from marriage. Of course, this cannot be done, unless we turn sex into a sterile activity. I believe this is where the culture and the legal system are heading: sex is normatively a sterile activity. Procreation is thrown in as an after-thought for people who happen to like that sort of thing.
This problem in the schools is simply a result of judicial activism. It started (for the most part) with a case in Massachusetts called Brown v. Hot, Sexy and Safer Productions. There, the high school held an assembly in which the host promoted experimenting with premarital sex, conducted explicit demonstrations where the students were asked to participate and many other appalling things. The parents complained asking for both damages and injunctive relief. In the holding of that case (in a nutshell) the court said that the school has a superior right to that of the parents on what is deemed to have educational value. This has been the trend in the Federal courts across the country ever since.
What is sad is that the modern courts have ignored both judicial history (courts of old consistantly gave the parents the right to opt their children out of ANY program, regardless of whether the objection was religious or not) and it ignores the Supreme Court precedents.
The most applicable Supreme Court case by far is called West Virginia Board of Education v. Barnette. There, the state had created a mandatory policy that kids must say the pledge. It’s purpose was to promote patriotism in the students (sound similar? the state’s purpose now is to promote tolerance). Some Jehovah’s witness parents objected to this because they felt that it put country above God. There, the court held (again, in a nutshell) that the parents had the right to opt their children out of the requirement to say the pledge based upon free speech. The Court (in dicta) also recognized the fundamental right of the parent to raise their children.
Finally, to promote Dr. Morse’s student conference, I’m one of those students who attended. I’ve been productive after her conference. With a small amount of help from William Duncan, I’ve published a case note on this topic (to be in print in September).
Curtis, what are the dates for the Brown case, and the WV v. Barnette case? what was their justification in the Brown case for departing from the precendents?
BTW, thanks for the endorsement of our student conference! Did you see that our BYU students are replicating the conference at their school? Very cool!
Barnette was decided in 1943 and Brown was in 1995 and is a First Circuit opinion.
Conveniently, Brown neglected to mention either Barnette or any of the common law on this issue. Other cases have even gone as far as to say that there is no case history, which I called them on in my case note. This is really one of those issues where the courts have intentionally ignored what is out there for them to cite, which is why I guess it makes sense that they all come from the coasts originally and are only now starting to get to the center of the country.