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The Most Discriminatory Laws You’ve Never Heard Of

by Ryan Matthews

 

The Supreme Court recently decided in favor of same-sex marriage in the long awaited case of Obergefell v. Hodges. As a supporter of LGBT rights, this decision makes me uneasy. I worry this decision will be seen as the end of the gay rights movement. Mission accomplished, time to go home. The gay rights movement has been so focused on marriage rights that other discriminatory laws have been overlooked or ignored. My hope is that instead, the decision will be a stepping stone towards eradicating these laws across the nation.

No Promo Homo laws are the most discriminatory laws you’ve never heard of. Hidden in education laws, No Promo Homo laws restrict the promotion of homosexuality in public school classrooms by prohibiting teaching of homosexuality or outright requiring its condemnation. They exist in eight states: Alabama, Arizona, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, and Utah. For example, the Utah Code requires the state board of education to prohibit instruction in the “advocacy of homosexuality”. An even more egregious law in Texas requires teachers to state that homosexuality is “not an acceptable lifestyle and is a criminal offense”. Appallingly, Texas cites the very penal law found unconstitutional in the landmark Lawrence v. Texas case in 2003.

It is clear some states disagree and resist homosexual rights even 10 years after the Lawrence decision. These states have still found a way to keep their discriminatory laws on the books. By hiding these laws in education bills, states are taking advantage of the broad discretion given to them in the arena of education.

These laws have become the states’ last avenue for spreading anti-gay beliefs. Already many states have amended or proposed legislation to increase the scope of their no promo homo laws in the wake of same-sex marriage. Utah for example, recently had their same-sex marriage ban struck down in the case of Kitchen v. Herbert. While the litigation was pending, a Utah representative rallied to pass House Bill 363, which expands their no promo homo prohibition to forbid the “instruction in, as well as the advocacy of homosexuality”. Teachers would be barred from even recognizing homosexual students. The bill was ultimately vetoed on separate grounds but will likely be presented again with minor changes. Alabama recently attempted to extend their no promo homo law in a significant way. The amendment would have banned any conversation of homosexuality in schools, effectively erasing the students who identify as gay. The promising news is that these new attempts to increase no promo homo laws thus far have been largely met with opposition and struck down. However, this clearly shows no promo homo laws are thought of as a tool for further discrimination.

Although these laws are not making headlines, they are not without opposition. Gay, Lesbian & Straight Education Network (GLSEN) is a national organization fighting discrimination in the classroom that has been advocating against these laws since their inception. GLSEN argues the laws provide misleading, inaccurate, and negative information about the LGBT community which only further stigmatizes them. GLSEN also warns that these laws create an unsafe environment of discrimination and homophobia for LGBT students. Students in states with active No Promo Homo laws report (GLSEN hyperlink) significantly higher levels of victimization based on sexual orientation than states without such laws. The victimization of LGBT students is often cited as the number one cause of their suicides and suicide attempts.

photo1This group notoriously leads the nation in young adult suicides with almost 40% of them attempting suicide before the age of twenty.

Other organizations have also responded with campaigns such as the Lambda Legal “Don’t Erase Us” campaign. Even individual students have joined the fight, asking their legislature and school board to get rid of No Promo Homo policies. Unfortunately, these efforts have yet to culminate in litigation. The closest the laws have come to court is a 2012 challenge to a no promo homo school policy in the Minnesota tow of Anoka-Hennepin which prohibited teachers from casting homosexuality in a positive light. The Southern Law Poverty Law Center instituted a lawsuit on behalf of five LGBT students who were discriminated against as a result of the law. Just days before the challenge would have reached the courts, the community was rocked by multiple suicides by LGBT students. These deaths proved to be the needed pressure and the policy was change to one which requires teachers to photo2“affirm the dignity and self-worth of all students”. Litigation proved to be unnecessary.

Although litigation has yet to occur, the constitutional challenge to no promo homo laws is a strong one. Many have proposed using the freedom of speech clause in the First Amendment as the stepping stone to the courts. Cases throughout the years have interpreted free speech rights and have specifically detailed when and if speech can be barred in school. The famous case of Tinkers v. Des Moines stands out as the most useful case for No Promo Homo litigation. There the court held that the school had no authority to ban students wearing of black armbands in protest of Vietnam War. The court found the actions constituted speech and held “it can hardly be argued that students or teachers shed their constitutional rights to freedom of speech at the school gate.” The importance of this case is that schools do not have complete control over the free speech rights of both teachers and students. In banning speech, the school must show how discussing homosexuality will lead to a substantial disruption of school activities. However, a mere disagreement of opinion is insufficient disruption. As the court explained, “undifferentiated fear or apprehension or disturbance is not enough to overcome the right to freedom of expression.” Here the states have no reason for banning the speech of teachers and students other than fear that talk of homosexuality will disturb the community in which the school resides. In fact, a student suicide or bullying are both far more disruptive. The states’ position is as unfounded as it is unconstitutional. Studies over and over again show that discussing all lifestyles in school leads only to a more inclusive and safe environment. No substantial disruption will result and therefore the ban is violating teachers and students’ constitutional rights.

The constitutional argument does not end at the First Amendment. Advocacy groups have also claimed these laws constitute an equal protection violation under the Fourteenth Amendment. No Promo Homo laws discriminate against LGBT students on many different levels. Some only impliedly do so, like a South Carolina law which requires schools to promote heterosexual marriage in their education. This law does not facially discriminate against LGBT students but favors heterosexuals and implies that a homosexual relationship, and therefore a homosexual student, is of less value. Others are facially discriminatory and require the condemnation of LGBT students in the classroom setting. Regardless of the specific text of the laws, all violate the clause.

Equal protection under the 14th Amendment requires the states to prove only that their law is rationally related to a legitimate purpose. Although it seems like a low standard, states will likely be unable to satisfy it. Arguments against homosexuality are not related to legitimate interests of the state and are instead related to religious doctrine. It is unsurprising these states have high levels of religious involvement in politics. Other reasons often cited by supporters claim homosexuality is a risk to legitimate interests of the state like family life and child care. These arguments are unsupported and have been roundly rejected in past litigation. For example, in recent same-sex marriage cases states have argued by allowing the LGBT community to marry they will threaten the state’s interest in family life and will be a threat to child raising. These arguments have been repeatedly struck down as being unfounded in recent cases. Courts can find no evidence that LGBT couples are any less successful in raising a family than their heterosexual counterparts. It is clear No Promo Homo laws cannot stand on any rational or legitimate state interest to rise to the low level of Equal Protection constitutionality.

These constitutional arguments against No Promo Homo laws deserve their chance in court. As Justice Kennedy stated in the majority opinion of Obergefell, “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” No Promo Homo laws should be the next item on the gay rights agenda to ensure this equal dignity is given to our students and teachers as well.

Ryan Matthews is a third-year student at St. John’s University School of Law. He was a student intern with the Consumer Justice for the Elderly: Litigation Clinic and currently works at District Council 37 Municipal Employees Legal Services. Ryan is a senior staff member of the Journal of Civil Rights and Economic Development.

The pictures used herein and in the slider are not the property of the author and can be found at the following web addresses:

http://www.lambdalegal.org/dont-erase-us

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