Proposition 8 and California's Schoolchildren: A Primer on Falsehoods
(Welcome, Hugh Hewitt readers! You'll want to see this new YouTube video as well.)Perhaps the most hotly-debated question about Proposition 8 is the measure's impact on schoolchildren. If Proposition 8 fails, will young children be taught that same-sex marriage is equal to traditional marriage? Opponents of Prop 8 have adamantly -- and falsely -- claimed this will not happen.
The fact is, Prop 8's leading opponents have been very public for a long time about their goal of teaching schoolchildren about gender orientation at very young ages. What is worse, they have openly promoted strategies for overcoming or circumventing parental objections to such teaching. It is foolish to believe they will not use the same approach to teaching children about same-sex marriage.
Why this matters
When it comes to private sexual practices generally, I've long been attracted to the view of English actress Beatrice Campbell: "I don't care what [people] do, so long as they don't do it in the street and scare the horses." My work colleagues and friends, and anyone who really knows me, know that I consider their personal lives to be just that: personal. All my friends, gay and straight, know I support them in seeking personal happiness. I support California's already very expansive laws providing for domestic partnerships, which, in Family Code Section 297.5, guarantees to registered domestic partners "the same rights, protections and benefits . . . as are granted to and imposed upon spouses."
But marriage is different, and so is teaching schoolchildren.
Most seven year-olds still need to learn how to sit up straight and cover their mouths when they sneeze. Kids don't need the schools teaching them about gender orientation -- an arcane and confusing subject to even the most precocious children -- before they have even thought about their own sexual identities.
Besides, if we are going to start teaching six year-old children that same-sex marriage is the same as traditional marriage, that's a decision that should be made by the people, not by four of the seven judges on the California Supreme Court.
The law on teaching schoolchildren about marriage
Misinformation about just what California's Education Code says about marriage has been flying around the internet and on television and radio ads by the No On 8 campaign. There is no doubt, however, what the Education Code requires as to teaching about marriage and families. Here's an excerpt from the key statute, Section 51933:
(b) A school district that elects to offer comprehensive sexual health education pursuant to subdivision (a), whether taught by school district personnel or outside consultants, shall satisfy all of the following criteria:(Emphasis added.) According to the California Department of Education's website, 96% of California school districts provide sexual health education that places them under Section 51933's requirements. Can anyone reasonably deny that if Prop 8 fails, the instruction about "marriage" this statute refers to will include same-sex marriage?
. . .
(7) Instruction and materials shall teach respect for marriage and committed relationships.
What Prop 8's leading opponents have said about parental rights
The response to these concerns from from Prop 8's leading opponents has been that Prop 8 has nothing to do with schools. Amazingly, even the State Superintendent of Public Education has filmed a television ad promoting this falsehood.
Think about it: If the State Supreme Court has defined marriage to include same-sex unions, and schools are required to teach about respect for "marriage and committed relationships," well, it seems pretty obvious that from kindergarten on, kids will be learning about same-sex marriage, doesn't it?
But it gets worse. The other response from the No On 8 group has been that parents can simply "opt out" of instruction about gay marriage. This is another deception. The same people who make that claim have argued forcefully that no opt-out rights exist, as long as the instruction is part of "diversity education" encompassing gender orientation. They've even made their case in court.
Regarding opt-out rights, an organization called the California Safe Schools Coalition published A Question & Answer Guide for California School Officials & Administrators. The Coalition's Steering Committee includes The California Teachers Association, Equality California, American Civil Liberties Union chapters throughout California, State Senator Sheila Kuehl, and other prominent backers of No On 8 who have already raised millions of dollars to oppose the measure.
Here's one of the questions and answers:
Can parents 'opt out' of their children's participation in school programs that discuss sexual orientation and gender identity?(Emphasis added.) Translation: If you are a California parent and think you have the right to opt your second-grader out of story time because the teacher is reading the students a book about a prince who marries a prince, you should think again. As long as story time is part of a program "designed to encourage respect and tolerance for diversity," you have nothing to say about whether your child participates. You won't even hear about the book unless your child comes home and mentions it to you.
State law explicitly provides that “instruction or materials that discuss gender, sexual orientation, or family law and do not discuss human reproductive organs or their functions” is not subject to the parental notice and opt out laws. Thus, where issues of sexual orientation or gender identity are raised in school programs other than HIV/AIDS or sexual health education, such as programs designed to encourage respect and tolerance for diversity, parents are not entitled to have notice of or the opportunity to opt their children out of such programs. California law does not support a broad parental veto regarding the contents of public school instruction.
The California Safe Schools Coalition also published on its web site a "Question and Answer Guide to California's Parental Opt-Out Laws." The Guide's goals include helping educators who are promoting "tolerance and diversity" to circumvent the opt-out laws, as evidenced by this question and answer from that guide:
Do parents have a constitutional right to prevent their children from receiving education in public schools on subjects they disapprove?Here's the guide's concluding paragraph:
Almost never. Parents have filed a number of court cases seeking to prevent public schools from teaching their children controversial literature or subjects . . . and have lost virtually every case. Courts have held that so long as the public school curricula are secular and reasonably related to educational goals, parents do not have veto power over the content of public school instruction. . . . Schools may wish to excuse students from non-essential activities (such excusing a Jehovah's Witness student from a Valentine's Day party) but are not legally required to excuse students from curricular activities such as . . . diversity education. The interests of the school and student in education outweigh parents' interests in preventing their children from being exposed to ideas that conflict with religious traditions.
[By] carefully articulating the purpose and content of diversity education programs, schools can both fulfill their legal duty to ensure a safe and nondiscriminatory school environment for all students, and also avoid violating parents' notice and opt-out rights.(Emphasis added.) So, you see, it's all a matter of how the schools set up their program. If they do that right, parents have no voice. The next time you hear a No On 8 spokesman tell you that parents need not worry about their kindergarteners being taught about same-sex marriage, think about the Question and Answer Guide to California's Parental Opt-Out Laws.
(Somewhat curiously, the Question and Answer Guide seems to have disappeared from the Safe Schools Coalition's web site. An e-mail correspondent sent me the Question and Answer Guide on October 23. By October 26, as I am writing this post, the guide no longer appears on the internet. The now-defunct URL is here.)
Proposition 8 raises serious and controversial issues. Instead of continually dissembling about the real facts and the law, it's time for the opponents of Prop 8 to get serious about addressing those issues.
And about telling the truth.
UPDATE: An e-mail correspondent, Richard, writes:
"Lowell: Regarding your article . . . . Apparently the Coalition had something to hide so they also removed the Guide from the above URL. They may be unaware that www.archive.org maintains an archive of billions of web pages for the past 10-15 years. Here is the archived web page's URL:
http://web.archive.org/web/20070710011100/www.casafeschools.org/OptOutQA.pdf
"I doubt that the Coalition can get web pages removed at archive.org."
posted by Lowell Brown at 10:39 PM
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19 Comments:
More about children - a lot of school teachers were very disappointed that the California Teachers Association paid $1M to No on 8.
Several have made that observation that children raised in a home with both a traditional Father and Mother perform much better in school than other groups.
Iunderstand your concern about what children should and shouldn't have to learn about in school.
In an idealistic world, we would like to think that the education system would like to respect the personal beliefs of individual families. However, our education system is designed to feed scientific and cultural information to our youth from an UNBIASED source and with FACTS, and without an agenda.
This is what the education code is striving for. Facts based on science, research, and the reality of the world.
The effects of Prop 8 may or may not influence the education code, we do not know for sure yet, as no one can accuratly foresee the future. But to Vote yes on a proposition that DIRECTLY EFFECTS the lives of a large percentage of the population is what is at hand here. You say that "this is for the children" and this is not the case. This propostion is about equal rights and the fair treatment of our fellow human beings.
If the Yes on 8 campaign is concerned about what their children learn about in schools, then they should be working toward changing the education code to reflect a parents need to supervise what their children do and do not learn about.
If logic were introduced to the Yes on 8 campaign, the yes voters should be voting no on 8 because doing otherwise would hurt millions of californians from the pursuit of happiness. While at the same time, they should be focusing on changing the education code to fit their needs and wants so they can also live in their own pursuit of happiness.
Have you read proposition 8? It is a strange construct for an English sentence.
You have to be very careful when writing constitutional language. If they are defining Marriage in one sentence, then they haven't excluded incest, for example.
Will Judges be compelled, to legalize incest. (as http://RavagedFaces.com/ suggests) based on that wording? I'd be very afraid to vote YES on this one.
Reuven, very creative. Also ironic that you would respond to a post about telling the truth with such a tactic. Is that one of the No On 8 strategies -- start spreading last-minute tales about how a yes vote on 8 will end civilization as we know it?
By the way, you forgot to add polygamy as one of the horrors Prop 8's passage will introduce. Not to mention widespread leprosy.
I have a child in high school. Her female teacher told her class that if Prop 8 does NOT pass, she will marry her sister. Her sister does not have health insurance, the teacher does. This IS an example of things to come, this IS how people are thinking, she can't be the only one. I don't see the educational value of her telling this to her students, other than to shock them with some of the results if Prop 8 does not pass. I HOPE & PRAY PROP 8 DOES PASS.
To those who are afraid if Prop 8 does pass and will include incest and polygamy, those are already in the law (Family Code Section 297) and this will have no change in it. It states that they can have a domestic relationship if:
(2) Neither person is married to someone else or is a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity. (polygamy)
(3) The two persons are not related by blood in a way that would prevent them from being married to each other in this state. (incest)
I pray that prop 8 passes and people are able to see the truth passed the lies NO ON PROP 8 are saying.
In listening to some of the "NO on 8 ads" I note that the book in the "Yes ad" about "a prince and a prince" is already a standard text in many California schools. So why bother? We already beat you on that notion. What Creeps!!!
JD
This seems a persuasive argument... but let me pose you this question: if gay marriage were taught in a way that 'encourages [students] to respect diversity,' how is that different that what Pro-8ers profess to believe personally about 'homosexual friends'? Additionally, no school program, even one so frighteningly benign as has been quoted, takes from parents the responsibility to teach these concepts, and at a young age. Is the problem, then, that we don't want schools even ADDRESSING that homosexual 'families' exist, or that we don't want them saying those families are 'OK' or that we'd rather not them broach the question of whether or not they're 'families' at all?
Callampadero, interesting questions, but you're changing the subject. If these things are to be taught in school, let's be honest about that and have a public debate about what should be taught, when, and with parental input. The more aggressive gay rights activists (Sheila Kuehl. for example) seem to want to put this programs in by stealth and then deny that they exist. Foul!
If Prop 8 passes, there were two possibilities that none of the news agencies are reporting; 1) All marriages be invalidated within the state or, 2) Marriages be banned altogether in the state. The ruling seemed clear to me that the Supreme Court would not permit the state to recognize further marriages or benefits associated with marriage, but would probably require marriage to be called something else.
Please see the following lines from the ruling:
In our view, the statutory provisions restricting marriage to a man and a woman cannot be understood as having merely a disparate impact on gay persons, but instead properly must be viewed as directly classifying and prescribing distinct treatment on the basis of sexual orientation. By limiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation. By definition, gay individuals are persons who are sexually attracted to persons of the same sex and thus, if inclined to enter into a marriage relationship, would
choose to marry a person of their own sex or gender…Just as a statute that restricted marriage only to couples of the same sex would discriminate against heterosexual persons on the basis of their heterosexual orientation, the current California statutes realistically must be viewed as discriminating against gay persons on the basis of their homosexual orientation.
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When a statute’s differential treatment of separate categories of individuals is found to violate equal
protection principles, a court must determine whether the constitutional violation should be eliminated or
cured by extending to the previously excluded class the treatment or benefit that the statute affords to the
included class, or alternatively should be remedied by withholding the benefit equally from both the
previously included class and the excluded class. A court generally makes that determination by
considering whether extending the benefit equally to both classes, or instead withholding it equally, would
be most consistent with the likely intent of the Legislature, had that body recognized that unequal
treatment was constitutionally impermissible. (See, e.g., Kopp v. Fair Political Practices Com. (1995) 11
Cal.4th 607, 626-662; Arp v. Workers’ Comp. Appeals Bd., supra, 19 Cal.4th 395, 407-410.)
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We have no occasion in this case to determine whether the state constitutional right to marry necessarily affords all couples the constitutional right to require the state to designate their official family relationship a “marriage,” or whether, as the Attorney General suggests, the Legislature would not violate a couple’s constitutional right to marry if — perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — it were to assign a name other than marriage as the official designation of the family relationship for all couples. The current California statutes, of course, do not assign a name other than marriage for all couples, but instead reserve exclusively to opposite-sex couples the traditional designation of marriage, and assign a different designation — domestic partnership — to the only official family relationship available to same-sex couples.
Whether or not the name “marriage,” in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes — by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership — pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry.
We need not decide in this case whether the name “marriage” is invariably a core element of the state constitutional right to marry so that the state would violate a couple’s constitutional right even if — perhaps in order to emphasize and clarify that this civil institution is distinct from the religious institution of marriage — the state were to assign a name other than marriage as the official designation of the formal family relationship for all couples. Under the current statutes, the state has not revised the name of the official family relationship for all couples, but rather has drawn a distinction between the name for the official family relationship of opposite-sex couples (marriage) and that for same-sex couples (domestic partnership). One of the core elements of the right to establish an officially recognized family that is embodied in the California constitutional right to marry is a couple’s right to have their family relationship accorded dignity and respect equal to that accorded other officially recognized families, and assigning a different designation for the family relationship of same-sex couples while reserving the historic designation of “marriage” exclusively for opposite-sex couples poses at least a serious risk of denying the family relationship of same-sex couples such equal dignity and respect. We therefore conclude that although the provisions of the current domestic partnership legislation afford same-sex couples most of the substantive elements embodied in the constitutional right to marry, the current California statutes nonetheless must be viewed as potentially impinging upon a same-sex couple’s constitutional right to marry under the California Constitution.
Lowell, your post is well written and I would agree that both sides should be serious about discussing the real issues.
You mention a couple of times in your post that children will be taught “about same sex marriage.” Actually, they already have. Prop 8 supporters have taught them about it by openly promoting the proposition in religious services where their children are present and taking their children with them to stand on street corners and canvass neighborhoods in support of Prop 8. Obviously, if Prop 8 fails our children will learn that same-sex marriage is legal in California.
The implication in your post is that teachers will somehow “promote” homosexuality. Of course, there is always a possibility that some teacher somewhere will do so, but that would be contrary to the California Education Code. Section 51500 provides: “No teacher shall give instruction nor shall a school district sponsor any activity that promotes a discriminatory bias because of a characteristic listed in Section 220.” The characteristics listed in Section 220 include sexual orientation and religion. A “discriminatory bias” means a bias either in favor or against.
I do not believe you dispute that parents have an absolute right to opt out of any school instruction on health—and it is the health provisions of the California Code that Prop 8 proponents have erroneously cited in making their claims about students being taught that same-sex marriage is “just as good as” heterosexual marriage. Parents can, if they wish, “protect” their children from obtaining health education on prevention of AIDS.
You are concerned that children will be exposed to “diversity education” and will not be able to opt out of it. You may be right. But isn’t that a good thing? Diversity education teaches respect for those whose beliefs or ethnicity or religion differs from ours. There are 50,000 children in California today who live in homes headed by same-sex couples. This number will increase in the future, whether or not Prop 8 passes. I do not plan to teach my children to pass judgment on their classmates’ parents, whether they are married or unmarried, homosexual or heterosexual.
We can all teach our children what we want concerning homosexuality, but it isn’t going to change whether they are gay or not. Some of the most militant supporters of Prop 8 have gay children. Somehow they haven’t been able to “teach” them not to be gay. I am saddened by the splitting apart of families that this campaign has brought about.
I hope when it is over—whether Prop 8 passes or not—we can begin some sort of healing process and worry more about loving our gay brothers and sisters, married or not, and not worry so much about whether our children will somehow find out about them in school.
The proponents of Proposition 8 need to do further study regarding our constitutional form of government. It is true that this is a democracy. However, it is also true that the rights of individuals are protected by the US Constitution from infringement by governmental action, including propositions adopted by a majority of voters to amend a state constitution. Where a governmental action serves to deprive an individual of a “fundamental right,” it is to be subjected to “strict scrutiny” to determine whether the objective of the action is of greater importance than the right in question, and whether that objective might be achieved by less intrusive means. The fact that there may be a “rational relationship” between the objective and the governmental action taken is insufficient to maintain the validity of the action.
It is the role of the courts to determine which of these two standards of review apply, and the outcome they dictate when faced with a challenge to the constitutionality of a governmental action. A finding that a governmental action is subject to “strict scrutiny” (as opposed to a “rational relationship” analysis) almost always leads to a holding that is unconstitutional.
Given the importance the proponents of Proposition 8 place on “marriage” as an institution in our society, they can hardly deny that it is a “fundamental right.” In any case, the US Supreme Court found it to be a "fundamental right" in Loving v. Virginia in overturning an anti-miscegenation law as an unconstitutional violation of the Equal Protection Clause in the 14th Amendment.
Having widely contended that Proposition 8 is necessary to “restore” the meaning of “marriage,” its proponents also cannot be heard to argue that Proposition 8 does nothing to deprive same-sex couples of that “fundamental right.” The undeniable truth is that there are thousands of lawfully married, same sex couples in California today who would would be stripped of the lawful status of their marriages were Proposition 8 to pass. And there are many thousands more who would be denied the "fundamental right" to marry in the future.
This means that, if adopted, Proposition 8 will necessarily be subjected to a “strict scrutiny” standard of review. And an application of that standard will inevitably lead to a finding by the courts that Proposition 8 violates the Equal Protection Clause in the 14th Amendment of the US Constitution. This is because the real objective of the proposition — i.e., to impose the views of a segment of the population regarding the meaning of “marriage” on everyone — will not be deemed of equal weight to the “fundamental right” of all individuals to marry. That segment of the population will continue to be able to adhere to its view of the meaning of marriage no matter what the law provides on that subject. The other stated objectives of the proposition — e.g., to "protect" our children from being instructed in school that a “marriage” between a same-sex couple and a man and a woman are of the same value — will be rejected because they are “red herrings.” That is, they will be rejected because there are less intrusive means of achieving such objectives (assuming the public regards them as legitimate). For instance, a law could be passed that prohibits public schools from providing instruction on the meaning of “marriage” without depriving same-sex couples of their lawful right to marry.
In the end, the proponents of Proposition 8 will be kicking themselves because it will lead to an important judicial precedent that will expand recognition across this nation of the “fundamental right” of same-sex couples to marry. While I am pleased that that will be the ultimate result, I regret that these good, religious people found it appropriate to put the rest of us through such a hateful and divisive process.
In the middle of October I saw a posting that had quotes from court filings in MA WRT a lawsuit about teaching SSM in school. The quotes were from various groups campaigning against 8, saying the exact opposite (during the MA trial) of what they were saying here.
Anyone have a link to that post?
Gregg: Try the protectmarriage.com website. I think they have a press release there about all those statements. It might be called "Who's Lying Now?" or something similar.
Ah, yes! The children. "It's not that I'm prejudiced or bigoted, I'm just worried about the children...". But, what exactly are we protecting them from? The truth? I mean, do you believe that if we don't teach them about homosexuality, homosexuality will just disappear because, "no one's ever heard of it"? Do you think it's likely that at one point or another in your child's life he or she will encounter a homosexual person? Wouldn't you prefer that your child saw this person first as a human, and then regarded their sexuality as a personal characteristic rather than a hushed perversion? I would, and I'm just as much of a good 'ol hetero-breeder as yourself. See, I don't think that children need to be safeguarded from knowing that there are varieties of ways that people can love each other. That is what we're talking about isn't it? Love? I think you would be surprised by how open children can be on the topic....Oh, wait. I'm sorry. That's NOT what this is about is it? It's about that terrible three letter word. I won't mention it as it remains for so many the ultimate dirty little secret believed to cause children a variety of ailments, including but not limited to, blindness.
The point that I'm trying to get to is simple- If you hate gays because they do things you think are gross (Also known in Christian speak, "you love them, hate their sin.") Just do it. Be a hate mongering bigot. Do not say it's because you are protecting your child. It's a cop-out. The fact of the matter is, you are not protecting anyone from anything. You are merely helping to perpetuate fears and prejudices caused by ignorant stereotypes.
The right to love and to be loved is a human right. Who I love should not effect who you love in the least. I don't know, I just don't get it.
Dear phloxx:
It seems almost embarrassing to have to tell you this, but taking the position that marriage should be defined as between a man and a woman has nothing to do with hating anyone. Your assumption that it does smack of a certain kind of hysterical, reactionary paranoia.
Also, you seem to assume that children should be taught about sexuaity in the lowest grades (1st, 2nd). You have a lot to defend if that is the case.
Dear Lowell Brown,
First of all, I never said that children in the first grade should be learning about sexuality. If you believe that this issue will lead to children learning about sexuality at an earlier age, I believe that you are sorely mistaken. Actually, I fail to see how this is even relevant. Schools do not teach children about sexuality in the primary grades and I see no reason why this would change just because people are allowed to marry whomever they wish. In actuality, the two have virtually nothing to do with one another and I truly feel as if you are going out on a thin and long proverbial limb for the sake of making this absurd argument.
Secondly, as for my "hysterical, reactionary paranoia", just a few questions: Why does it have to be between a man and a woman? Is it because that's what works for you? Is it because Jesus says so? Do you have even the slightest rational explanation for why this should not be allowed to happen that is not based on mere emotionally charged opinion or secular religious beliefs? Who is it really going to hurt? I mean, you've already tried to scapegoat the kids with your absurd argument alluding to their learning about gay sex in the first grade. Homosexual couples want to marry in order to have the rights of heterosexual married couples including the very basic right to have their partner to be present in the event of a medical emergency. Is this an irrational request? Is this hurting the children? Is this undermining the "sanctity of (hetero) marriage"? Why, I am asking this openly and honestly, do you think it's such a bad idea?
Yep, it is easy to throw up "Just because your Jesus said so doesn't mean my Jesus said so"...this ideal of moral relativism (what might be wrong for you is OK for me) is what has gotten us as a society into the many problems we see today. There is a line between right and wrong (we would all agree that murder, robbing, raping is wrong) but what about such things as not swearing in front of a lady, let alone in public, that has gone to the wayside? The loosening of morals such that we have over-sexed our children has lead to such a problem of unwed mothers that Obama had to give a Father's Day address to not "keep it in your pants" but "after you taken it out, had you fun, there are some responsibilities you need to have". I would rather have society telling someone to restrain themselves then having society telling them, "Since you can't restrain yourself, this is what you can/can't do." History as a whole has rejected homosexual behavior, previous societies that have tried it before have crumbled. So in answer to your question Phloxx, History and Society, which you are a part of, has said so (we support the laws of the land we live in, we took a vote, the vote passed).
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