The Most Discriminatory Laws You Have Never Heard Of

JURIST Guest Columnist Ryan Matthews of St. John's University School of Law Class of 2016, is the eighth author in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Matthews discusses discriminatory No Promo Homo laws...

The US Supreme Court recently decided in favor of same-sex marriage in the long awaited case of Obergefell v. Hodges [PDF]. 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 have never heard of. Hidden in education laws, they restrict the promotion of homosexuality in public school classrooms by prohibiting the teaching of homosexuality or requiring its condemnation. They exist in eight states: Alabama, Arizona, Mississippi, North Carolina, Oklahoma, South Carolina, Texas and Utah. For example Utah requires their board of education to prohibit instruction in the "advocacy of homosexuality." A more egregious Texas law requires teaching that homosexuality is "not an acceptable lifestyle and is a criminal offense." Appallingly, Texas cites the very penal law found unconstitutional in the landmark 2003 Lawrence v. Texas case.

It is clear that legislatures in some states disagree and resist homosexual rights even 10 years after the decision in Lawrence. These states have kept their discriminatory agenda on the books by burying these laws in education bills, taking advantage of their broad discretion in the area of education.

These laws are not outdated; indeed they have only been around since the 1980s. To combat the teachings of acceptance by the 1960's gay rights movement, these states responded by teaching hate. As the gay rights movement continues to make strides across the nation and same-sex marriage becomes inevitable, states look to No Promo Homo laws as their last avenue for spreading anti-gay beliefs. In 2013 Utah House Bill 363 proposed an expansion of their law to also prohibit classroom "instruction in or advocacy of homosexuality." Teachers would be barred from even recognizing homosexual students or "instructing" them about homosexuality. This bill proposed in Utah's ban on same-sex marriage was found unconstitutional in Kitchen v. Herbert.

When I bring this law to the attention of my classmates they always ask, "Is a law like this actually followed?" The ever-practical law student wants to know what impact, if any, these laws are having. They doubt the law is being followed and believe it is just an outdated law simply forgotten about and left on the books. However the evidence is overwhelming that these laws are being followed.

The national Gay, Lesbian & Straight Education Network (GLESN) warns that No Promo Homo laws have created a hostile and discriminatory learning environment for LGBT youth. GLESN reports that states with these laws have significantly higher levels of victimization based on sexual orientation than states without, contributing to LGBT youths' high suicide rates. Two students in Alabama recently campaigned to remove their No Promo Homo law. The students argued it is "school sponsored bullying," blaming the school for taking part in their discrimination. Unfortunately these students were unsuccessful with their petition. Clearly state-by-state legislative change is unlikely and will be slow; these laws must be challenged in court as unconstitutional.

The constitutional challenge to No Promo Homo laws is strong and multi-faceted. The constitutionality claim of teachers and students is based on the First Amendment. Cases throughout the years have interpreted free speech rights and have specifically detailed when and if speech can be barred in school. In the case of Tinker v. Des Moines the Supreme Court reaffirmed constitutional rights in school, holding, "it can hardly be argued that students or teachers shed their constitutional rights to freedom of speech at the school gate." In order to regulate speech, a school must show that discussing homosexuality will lead to a substantial disruption of school activities. Mere disagreement of opinion is not enough, given that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Discussion about homosexuality does not substantially disrupt school activities to justify a ban on speech of teachers and students. In fact studies repeatedly show that discussing all lifestyles in school leads to a more inclusive and safe environment. It is clear that the ban is nothing more than a difference of opinion, therefore it violates the free speech of teachers and students.

These laws also violate the Equal Protection clause of the Fourteenth Amendment. No Promo Homo laws discriminate against 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 heterosexuality and implies that homosexuality is of less value. Others are facially discriminatory and require the condemnation of LGBT students in the classroom setting. Equal protection under the Fourteenth Amendment requires that both types of laws are rationally related to a legitimate state purpose. Although it is a low standard, it is unlikely states will be able to satisfy it. Arguments against homosexuality are not related to legitimate interests of the state and are instead related to religious doctrine. These states may also proffer that homosexuality education threatens legitimate state interests in family life and child care, yet these arguments have been repeatedly struck down in recent same-sex marriage cases. Courts find no evidence that LGBT couples are any less successful in raising a family than their heterosexual counterparts. No Promo Homo laws are not rationally related to any legitimate state interest and hence also violate Equal Protection.

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.

Suggested citation: Ryan Matthews, The Most Discriminatory Laws You've Never Heard Of, JURIST - Student Commentary, January 6, 2016, http://jurist.org/dateline/2016/1/6/ryan-matthews-lgbt-rights.php



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