A lawsuit filed by two 16-year-old girls has hit a dead end after the California Supreme Court declined to review the case. The suit was based on the girls’ expulsion from California Lutheran School in Riverside County because they had “bond of intimacy” that was “characteristic of a lesbian relationship.” That was enough for the girls to get the boot, and apparently not enough justification for the Court to think the case was worth hearing.
The suit had previously been ruled on by an appeals court, and the decision stated that state laws about discrimination did not apply to the school because it was not a business. This is the same legal principal used to deny the suit filed against the Boy Scouts of America by a gay man who had been similarly discriminated against. Because the school is based on a religious entity, there are some who see this as a just application of the separation of church and state, but it galls me that the right to be free of discrimination stops at the doors of a school, whether it be a religious or secular one. I’m curious to know what those Harpyness readers who have knowledge of the law have to say about this. Please let me know your thoughts in the comments.
How horrifying that a “bond of intimacy” with anyone is grounds for discrimination in any sector of society. I’ve never practiced discrimination law like this and it’s been a long time since I had Constitutional Law, but I might argue that the school was assuming a state function — secondary education — and thus had to abide by state anti-discrimination mandates. However the right to educate one’s children however one sees fit is pretty sacrosanct as well. Maybe it’s really more an indictment on the few rights of children than about discrimination law. I wonder what the position of the girls’ parents is.
Unfortunately, I think this is one of those cases where private schools can discriminate however they like because they’re private. If they don’t like your thinking or your dressing, or your quasi-lesbian appearance, they have the right to expel you. Parents assume that risk when they send their children to private schools, IMO. Especially parochial schools.
It’s ridiculous and medieval and grossly unfair, but probably legal.
@JD: Yeah, it’s incredibly disheartening that it was grounds for expulsion. It’s times like these that I realize just how lucky I was to go to a school that practiced the acceptance it preached. That’s what galls me about this: a school founded on a religion that preaches love and turning the other cheek somehow thinks this is an acceptable way to treat people.
I agree with Becky. It’s horrible and deplorable, and if I were a parent in that school, I would immediately withdraw my child, BUT…
as a private (and religious-based) school, they have the right to do as they please, so long as no one’s basic rights are being harmed. As the resident Capitalist Pig Harpy, I think they have the right to kick whomever they wish out of the school.
I thought this was going to be about the Kentucky high school that instructed teachers not to let homosexual students leave class to use the restroom.
@SarahMC: I think I might cry.
This is definitely discrimination. Unfortunately, this is an area where the law does not adequately cover the rights of everyone. I worked for a non-profit that would lobby for the LGBT community in our state and there were bills passed every session that excluded their rights. It is an uphill battle and I have to cringe everytime I hear stories like this.
@SarahMC: Oh my God….
Sometimes I just feel like giving up.
The court seems pretty eager to make sure parents get their substantive due process rights in deciding how to educate their children (cf. Wisconsin v. Yoder, in which Amish parents wanted to pull their kids out of school after the eighth grade because it threatened their free exercise of religion. It’s an old case but still on the books and I’m pretty sure the current Court likes it a lot), so as to JDRegent’s point, I think that’s the right that would prevail in this case even though the Lutheran school is assuming a state function (vouchers are constitutional, after all, and those are tax dollars going to parochial schools).
It would make a difference for me whether or not the Lutheran school was accepting public funds (which I imagine it might be), but I doubt it would matter to the Court after Zelman, the school voucher decision.
But yes. It’s really it’s just indicative of a general animosity towards LGBT people. From the article, the girls’ attorney “feared the decision would give a “green light” for private schools to discriminate not just against gay students, but against children in other legally protected classes, such as race, as long as religious beliefs were offered as a justification.”
I seriously doubt it. Free exercise hasn’t prevented racial discrimination (the Bob Jones University case w/r/t interracial dating) in the past, and I imagine that judges feel more revulsion in the face of race discrimination rather than LGBT discrimination. The people in black robes grew up decades before we did– it’s why the Court was so obsessed with “homosexual sodomy” in Bowers v. Hardwick in 1986, even though the statute they wound up upholding criminalized oral sex among straight married people. When the justices heard “sodomy” they thought of gay men engaging in anal sex and ignored the rest of the statute.
The free exercise of religion is important, to be sure, but I fear the Court treads on shaky ground in cases like this allowing religious groups to participate in bigotry, because it’s close to an establishment clause violation in which the law favors (traditional) religion over irreligion, which according to Everson v. Board of Ed. is not allowed (“Neither a state nor the Federal government…can pass laws which aid one religion, aid all religions, or prefer one religion over another”) but frankly happens all the time.
@Kithkin: Wow, thank you so much for that. I really appreciate it. Stuff like this drives me up a wall, and while I can see the legal reasoning behind it (to a point), it doesn’t really quell my frustration.
shades of ‘heavenly creatures’, if you ask me.
Another way to frame this is that it would be illiberal to insist that people act against deeply felt matters of conscience. Religious doctrines opposing female priests and homosexuality may seem absurd and hurtful, but a liberal society must allow people some real space to live according to their own lights, even if misguided; that’s the whole project of political liberalism it emerged from the aftermath of the Wars of Religion.
The farther one gets from ‘pure’ expressive association, true, the more this interest is diluted. (If the Catholic Church buys up all the hospitals in a state, but most of the doctors themselves aren’t Catholic, a freedom-of-conscience exemption from providing abortion rings rather hollow– but insisting that an *individual Catholic doctor* perform one is still wrong!) And schools are particularly tricky because schools are *about* indoctrination.
That was a bit vague, so more specifically: so long as we’re dealing with a diverse ecosystem of instructional institutions, I think it’s positively beneficial for them to be allowed to teach a wide variety of value-systems, even if some are horribly mistaken. To my mind, the much bigger infringement of rights here is that children are not allowed to veto their parents’ choice of schooling. And that right is violated just as starkly by atheist children being forced to attend religious schools *at all* by their parents as it is when Lutheran-but-dissenting-from-anti-gay-line children are expelled from a school whose values they otherwise support.
Hope that’s clearer.
@x. trapnel: Thank you for that. It is still so frustrating to me, because I believe that religiously sanctioned discrimination is still discrimination. On the other hand, yes, I think separation of church and state are important. The line is a difficult one to draw.
Yeah, it’s certainly still discrimination–but religious organizations are one of the few spheres where the liberal principle of free association (and the concomitant right to NOT associate, to exclude) is still supreme; only particular narrow exceptions are made for the sake of equality etc.
The frustration, which I share, is in some sense just a necessary cost of liberalism–having to accept a bigger set of “others’ rights to do wrong” than either communitarian/traditionalists or revolutionaries…
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