By Morris A. Thurston
The Family Research Council Video
and the Massachusetts Case of Parker v. Hurley
Several people have asked me to comment on a video currently making the rounds concerning school children in Massachusetts who were exposed to materials promoting tolerance of same-sex marriages. The video is narrated by Tony Perkins of the Family Research Council and is apparently being distributed by the ProtectMarriage.com coalition. I have been asked whether the video is factually and legally correct and whether I think it portends any of the “slippery slope” predictions of the proponents of Proposition 8.
My answer is that I believe the video is accurate in some things and misleading in others. Obviously it is biased, but that is the nature of political videos such as this. Whether it portends a “slippery slope” depends on what a person considers that slope to be.
If one feels that it is bad for society to become more tolerant of committed gay relationships, then I would agree that legalizing gay marriages will gradually tend to bring about that tolerance and hence could be seen by some as a “slippery slope.” Increased tolerance will likely happen in society at large whether or not Proposition 8 passes, but it will probably come about more quickly if it fails.
Unfortunately, videos like the one being circulated serve to stoke the bigoted feelings of people who already despise gays. Here is a message about the video that was sent by one man to his mailing list (which happened to include me): “Listen to this video and please forward to everyone on your list. This is just the tip of the iceberg, and I sure hate seeing millions of dollars wasted trying to stop these morons. Just wait until they get the full impact of the backlash that’s inevitable, because of their trying to force their perverted lifestyles on the rest of us.”
Let me provide a little legal background that is missing from the video. The case that came about as a result of the incidents depicted in the video was titled Parker v. Hurley, but it actually concerned two separate incidents. The first involved the Parkers’ child, a kindergarten boy named Jacob, who brought home a “Diversity Book Bag.” This included (among other things) a picture book titled Who’s in a Family? that depicted different sorts of families, including single-parent families, interracial families, animal families, a family with two dads and a family with two moms. Since the child was in kindergarten, he wouldn’t have been able to read it himself, but the parents could read it to him if they wished. They were not required to read it to him and, of course, they did not do so.
The second situation involved the Wirthlins. In that case the teacher actually read aloud a book to her second grade class (including the Wirthlins’ child, Joey) titled King and King, which told the story of a prince who fell in love with, and married, another prince. As I will explain at greater length below, I find this case more troubling than the first.
The Parkers and the Wirthlins brought suit, contending that these incidents infringed on their constitutionally protected freedom of religion. The United States First Circuit Court of Appeals ruled against them on that point. The court pointed out the school was not “targeting” only those children from families with religious objections to gay marriage and that “exposure to the materials in dispute here will not … prevent the parents from raising Jacob and Joey in the religious belief that gay marriage is immoral.” The court cited previous decisions holding that “exposure to ideas through the required reading of books [does] not constitute a constitutionally significant burden on the plaintiffs’ free exercise of religion.” The court suggested if the school system had not been sufficiently sensitive to the plaintiffs’ religious beliefs, the issue could be resolved through “the normal political processes for change in the town and state.” Recently the United States Supreme Court refused to grant certiorari, permitting the lower court ruling to stand.
It was pretty easy for the Court of Appeals to reject Jacob Parker’s claim, since he was never required to read the books sent home in the diversity book bag and the books did not endorse gay marriage or even address those topics explicitly. They merely described how other children might come from families that look different from one’s own. I feel the court’s ruling was appropriate in the case of Jacob Parker.
The case of Joey Wirthlin presented a more difficult issue. He was actually required to sit through a classroom reading of a book that endorsed gay marriage. The court found, however, that the book was primarily intended to influence the listeners toward tolerance of gay marriage, and that there was no evidence of systemic indoctrination or that Joey was asked to affirm gay marriage. The court said, “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.”
In my mind, the problem in the case of Joey Wirthlin was not that his freedom of religion was infringed, but that the material read in class was not age appropriate and not appropriate for children of all ethnic and cultural backgrounds. I can understand why the Wirthlins were offended that the King and King book was read to a captive audience that included their second-grade son. It seems to me that the court could have found that the Wirthlins should at least have been notified before the book was read and had the option of exempting their child from that portion of class. The PTA president contended that all parents were given an opportunity to examine the books during a back-to-school night that had been held early in the school year, but I do not find that a very convincing argument.
The Family Research Council video begins with this message displayed on the screen and read aloud by a woman with a soothing voice: “If Prop 8 Fails on Nov 4th, All Public School Children Will Be Affected.” This same message is echoed at the end of the video. I do not believe that the Parker and Wirthlin cases support the conclusion that all public school children will be affected. Because California has different education laws than Massachusetts, we do not know how a ruling on a similar situation would come down in our state. In general, public schools in California are required to be attuned to the sensibilities of the community. California Education Code Section 51890 (the one referred to in “Six Consequences”) has specific provisions for the community to actively participate in the teaching of family health issues. Education Code Section 51933 (the one dealing with sex education) specifically requires the instruction and materials to be age appropriate, to be appropriate for use with pupils of all ethnic and cultural backgrounds, and to encourage pupils to communicate with their parents or guardians about human sexuality. If a Wirthlin-type case did arise in California, I would be happy to be on the side of the plaintiff. I do not feel it was age-appropriate or appropriate for use with pupils of all ethnic and cultural backgrounds.
However, I don’t believe it is likely that the Wirthlin problem will surface in California, at least not on any wide-spread scale. Existing California law already requires schools to teach respect for “committed relationships” (which include gay ones). Domestic partnerships (including gay partnerships) already enjoy all civil rights that marriages do. Even though these laws on the books for several years, I have never heard of a teacher trying to read a book promoting gay committed relationships to a grammar school class. In fact, it is pretty amazing that in all of the United States, we apparently have only one actual instance similar to the one described in the Wirthlin case. I think we can be sure that if there were others, they would be buzzing all over the Internet by now. I do not believe, therefore, that the Wirthlin case portends apocalyptic consequences and it certainly does not support the assertion that if Proposition 8 fails, all public school children will be affected in the way that the Parker and Wirthlin children were affected.
While the underlying story is based on a true incident, I take issue with the video on a few other points. For example, it never explains that Jacob Parker was not required to read anything. Persuasive arguments can be made that the book in Jacob’s “Diversity Bag” was entirely appropriate. It is an undeniable fact that there are already many families in California (and Massachusetts) where the children have two moms or two dads. According to a recent article in the L.A. Times, there are more than 109,000 same-sex couples in California and nearly a quarter of them have children. More than 50,000 California children are now living in same-sex households and this number will increase in the future, whether or not Prop 8 passes. Children are going to be aware of this fact and, hopefully, will be taught to show respect and civility toward their classmates who come from such families. I’m not suggesting parents cannot teach their children that homosexual relationships are sinful if they want to, but would hope they also will teach them to be charitable and kind and polite toward those families that believe otherwise—a message that has been stressed by President Hinckley and, more recently, Elder Ballard. To use an example we’re all familiar with, most evangelical Christians are convinced that Mormons are not Christian and therefore are going to hell, but many of them still manage to treat us with kindness and respect. Others stand on street corners screaming about our perverted beliefs or spew out their bigotry in online websites. No matter what our beliefs on this issue, certainly we want to teach our children to be civil and respectful toward our gay brothers and sisters and their families.
The video is also misleading in the way it treats David Parker’s being jailed. It seeks to give the impression that he was hauled off to jail because of his religious beliefs. In fact, David Parker went down to the school and refused to move unless the school administrators agreed to his demands. (Remember, his child was not required to read anything.) When the police were finally called they tried to talk him into leaving voluntarily. They waited more than two hours, and when he would not budge, they arrested him for trespass. When he got to the jail, he refused to post bail, choosing instead to spend the night in jail. As he put it, he wanted to “prove a point.”
Recently I received an e-mail from a man who attended an Interfaith Council community forum. The forum featured speakers in favor and opposed to Prop 8. One of the speakers in favor was an LDS representative. Here is what this brother (we’ll call him “Brother Jones”) is reported to have said in this public forum:
“When the panel received a question from the audience that asked ‘How would Proposition 8 would hurt me or my family?’ Bro. Jones responded by saying that all we have to do is to look to Massachusetts and see how a father was jailed because he didn’t want his kindergarten-aged child to learn about homosexuality marriage. If Proposition 8 fails, the same thing could happen here in California.”
This suggests the video had misled Brother Jones into thinking that David Parker was jailed because of his religious beliefs, not because of trespass. That is unfortunate. We do not jail people in America because they express religious or political opinions, but it is astonishing how many people are willing to believe we do.
Perhaps the Family Research Council video is no more misleading than other political propaganda pieces, but I feel it creates a one-sided and, in some respects, inaccurate picture of the legal risks to Californians from same-sex marriage.
Morris A. Thurston
Morris Thurston received his undergraduate degree in political science from BYU and his law degree from
Harvard Law School. He recently retired as a senior partner with a global law firm, where he specialized in
litigation and intellectual property law. He is an active member of the LDS Church.
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