Parker v. Hurley, No. 07-1528 (1st Cir. Jan. 31, 2008)
The U.S. Court of Appeals for the First Circuit (ME, MA, NH, RI, P.R.) has ruled that a Massachusetts school district’s refusal to allow parents to opt their elementary school children out of lessons aimed teaching tolerance for same-sex marriage did not violate their own or their children’s rights to free exercise of religion or due process. Tonia and David Parker sued school officials in Lexington after their son brought home a book from kindergarten that depicted a gay family. Joseph and Robin Wirthlin joined the suit after a second-grade teacher read King and King to her class. The fairy tale tells the story of two princes falling in love. Both families claimed school officials violated their due process rights as parents to teach their own morals to their children. They also asserted that their children’s exposure to pro-homosexuality messages violated both the children’s and their own rights to free exercise of religion. Along with declaratory relief and damages, they sought a court order allowing parents to opt their children out of any lessons, classroom presentations, or discussions “the intent of which is to have children accept the validity of, embrace, affirm, or celebrate views of human sexuality, gender identity, and marriage constructs.” The U.S. district court granted the school district’s motion for summary judgment, citing “the state's interest in preventing discrimination, specifically discrimination targeted at students in school... .”
The First Circuit affirmed, but on different grounds. After a lengthy discussion of whether the parents’ claims were “hybrid” claims involving more than one constitutional right and thus subject to stricter judicial scrutiny, the appeals court determined that the claims should be analyzed using the U.S. Supreme Court’s approach in Wisconsin v. Yoder, 406 U.S. 205 (1972), which considered parents’ due process and free exercise interests “interdependently.” The First Circuit concluded that the district’s actions did not impose a “constitutional burden on their rights, or on those of their children.” Unlike the parents in Yoder, the parents in the present case chose to place their children in public schools and do not belong to a sect that involves a “unique and demanding religious way of life that is fundamentally incompatible with any schooling system.” Weighing the parents’ argument that their request was simply a logical extension of their parental rights, reinforced by their free exercise rights, against the school district’s argument that parents have “no constitutional right to ‘direct how a public school teaches their child,’” the court could identify “no federal case under the Due Process Clause which has permitted parents to demand an exemption for their children from exposure to certain books used in public schools.”
Turning to what it characterized as the parents’ claim of “indoctrination,” the court observed that the U.S. Supreme Court has never applied the indoctrination test to the Free Exercise Clause, “much less in the public school context.” The closest the Supreme Court ever has come recognizing the element of coercion was in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), a free speech case implicating free exercise interests that held the “state could not coerce acquiescence through compelled statements of belief, such as the mandatory recital of the pledge of allegiance in public schools.” But even Barnette “did not hold that the state could not attempt to inculcate values by instruction, and in fact carefully distinguished the two approaches.” The court declined to address whether the indoctrination theory was applicable to free exercise claims, but even assuming “extreme indoctrination can be a form of coercion,” the court ruled the parents had failed to present sufficient facts to establish such a case. The mere fact that their children were exposed on occasion to a concept offensive to their religious beliefs did not inhibit them from instructing their children differently. They also had notice, if not prior notice, of the school’s intent to promote tolerance of same-sex marriage.
Lastly, the court found little or no burden on the children’s right to exercise their religious beliefs. As students, they were no more than occasionally exposed to materials endorsing homosexuality but were not required to affirm any ideas, such as gay marriage, that are anathema to their religious convictions. Based on the fact that students were not forced to read the materials under pain of disciplinary sanctions, the court found that “no viable claim of indoctrination" existed. “Public schools often walk a tightrope between the many competing constitutional demands made by parents, students, teachers, and the schools' other constituents,” the court emphasized, concluding that the balance struck by the school district in the present case offended neither the Free Exercise nor the Due Process Clause.
Parker v. Hurley, No. 07-1528 (1st Cir. Jan. 31, 2008)
[Editor’s Note: For background on the filing of the lawsuit, see below. Same sex marriage is recognized under Massachusetts law.]
NSBA School Law pages on Parker v. Hurley