High Court scratches two gay-related appeals

There was no dramatic sit-in demonstration planned by October’s March on Washington for the steps of the U.S. Supreme Court. It was there, during the 1987 March on Washington, that one of the movement’s largest and most intense moments of direct action was staged. Thousands of gay civil rights supporters stood together at the bottom of the court’s entrance and systematically defied police orders to stay off the court’s open gathering plaza. In protest of the high court’s 1986 decision, Bowers v. Hardwick, upholding state laws prohibiting consenting same-sex sexual relations, hundreds of the demonstrators stepped onto the plaza, sat down, and were arrested.

The 2009 March included no such demonstration directed at the U.S. Supreme Court in large part because the high court has since reversed itself on Hardwick. It ruled, in 2003’s Lawrence v. Texas decision, that state “sodomy laws” were unconstitutional. It also ruled, in 1996’s Romer v. Evans, that state laws cannot be based on animus towards gay people.

But the Supreme Court has not become a reliably hospitable place for LGBT people. And while gay legal groups do not –so far– see any cases before the court that they intend to become involved in this session, there are scattered cases involving LGBT issues.

The Supreme Court refused during its official opening day orders October 5 to hear the appeal of a Michigan school district which was seeking to dismiss a lawsuit filed by the parents of a student who was being repeatedly harassed as a “queer” and “faggot.” The 6th Circuit federal appeals court ruled in January that the case, Hudson Area Schools v. Patterson, should proceed to trial.

Court records indicate other students repeatedly harassed the Patterson student, calling “queer,” “gay,” and “faggot,” writing anti-gay slurs and drawings on his books and locker, and urinating on his clothes. Despite the Patterson student seeking help from school officials, the harassment escalated with a student sexually assaulting him in a locker room. The assailant was eventually dismissed but the coach in charge of the locker room later commented to the Patterson son and others in the locker room that they should “not joke around with guys who can’t take a man joke.”

Because the Supreme Court refused to hear the school’s appeal, the parents’ lawsuit will now be heard in a federal district court in Detroit.

Religious crusades

The Supreme Court also refused October 5 to hear an appeal from an Episcopal Church in Los Angeles that sought to break away from the national denomination because the denomination allowed the consecration of a gay bishop, Gene Robinson of New Hampshire.

The St. James parish in the diocese of Los Angeles broke away from the denomination in 2003 and tried to take the church property with them. But the denomination fought the parish’s efforts to take the property, and the California Supreme Court agreed.

By refusing to hear the St. James Parish appeal, the U.S. Supreme Court has left the ruling of the California court intact. But the California decision affects no other states, and, importantly, there are similar cases percolating in other states. For instance, the entire Episcopal Diocese of Fort Worth, Texas, has a lawsuit underway attempting to acquire church property with its separation. And, the Supreme Court’s refusal of St. James v. Episcopal Diocese does not preclude it from taking up a similar case from another state.

There are several cases reaching the high court now that test the government’s power to regulate or support the behavior of people and entities who offer religious or other First Amendment justifications for their actions.

In Choose Life v. Illinois, an anti-abortion group petitioned the state for the right to have its motto “Choose Life” stamped onto a series of automobile license plates. By state law, the group needed two things to make that happen: several thousand signatures from residents willing to buy license plates with the specialized slogan, and approval from the general assembly. Choose Life got 25,000 signatures –a number that “far exceeded” the minimum required, according to court documents. But the plan was shot down in a legislative subcommittee. The anti-abortion group filed a lawsuit, arguing that it violated their First Amendment right to freedom of expression.
The 7th Circuit federal court of appeals ruled that the state had a “reasonable rationale that messages on specialty license plates give the appearance of having the government’s endorsement, and Illinois does not wish to be perceived as endorsing any position on the subject of abortion.” The U.S. Supreme Court this month refused to hear the group’s appeal of that decision.

The court also refused this month to hear an appeal, Frazier v. Smith, from the parents of a Florida public high school student who refused to stand in class during the pledge of allegiance. The school policy said that was OK, but only if the student, Cameron Frazier, brought in a written request from his parents asking that he be excused from participating. The U.S. Supreme Court ruled in the 1940s that a state cannot force students to recite the Pledge. But Cameron refused to even stand and his parents sued, saying the requirement to stand also violated his First Amendment rights. The 11th Circuit split the baby: It said the school could not require students to stand during the pledge but that it could require parental permission for students who chose to exercise their right not to stand.

Cases involving the pledge are springing up all over the country, many testing whether the words “under God” violate the constitutional rights of students who don’t believe in god. A federal judge in New Hampshire last month ruled that federal law does not require anyone to recite the pledge and that a state law requiring school children to recite it was “a civic patriotic affirmation, not a religious exercise, and inclusion of the words ‘under God’ constitutes, at most, a form of ceremonial or benign deism.”

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