Author: Othniel

On May 5th Judge Alexander Williams, Jr., (D-Maryland), a Clinton appointee, released his opinion in Citizens for a Responsible Curriculum v. Montgomery County Public Schools, Case AW-05-1194.
CPR is an organization supported by Jerry Falwell, Tony Perkins and others, which challenged a proposed revised curriculum for sex education in the Montgomery County Public Schools which would have positively addressed the issue of homosexuality.

This is an important Establishment Clause case, and I thought I would address it as a lawyer who has handled constitutional claims.
The ruling has been hailed by the Religious Right and generally condemned by gays. This morning’s Washington Post has a pretty balanced report, here

 Neither side has actually understood it.

The Court’s opinion explains why it is granting a Temporary Restraining Order blocking the proposed revised curriculum in the Montgomery County Public Schools.  The ruling is based primarily upon the Establishment Clause of the First Amendment and affirms separation of Church and State. It cites Everson for the proposition that the Establishment Clause of the First Amendment “was intended to erect a wall of separation between Church and State.”

Unfortunately the proposed curriculum cited several moderate or liberal denominations (i.e., Unitarian Universalists and Quakers) with approval and castigated fundamentalists and Baptists in addressing the question of whether homosexuality is a sin.  Consequently, teaching it as presented in public schools would amount to an Establishment of the preferred sects.

I do not fully agree with the Court’s free speech analysis, but it was not the gravamen of his ruling.  Basically, he said he wanted to hear more on the issue.  I think he was most concerned that in addressing whether homosexuality is a sin the curriculum opened a door but only allowed one viewpoint through.

You can access the opinion here,
link

It is truly odd to see Falwell and his ilk arguing an Establishment Clause case when they are claiming on other fronts that there is no separation of Church and State.  They had to rely on the “school prayer” line of cases.  Of course they do not mention that in any of the press stories covering the ruling where they are crowing about their victory.  No victory could be more Pyrrhic.

The Court also expressly rejected the Plaintiff’s arguments that allowing the proposed curriculum would lead to increased homosexual sex and that homosexual sexual activity is more dangerous than heterosexual activity, noting that “the harm that Plaintiffs posit is highly speculative and attenuated.”

The curriculum ought to be redrafted to be neutral on religion, and not to favor the denominations cited affirmatively in it.

On this date in 1970 four students were killed on the campus of Kent State University in Ohio.  I was a high school junior in Memphis at the time, and was profoundly impacted by the Massacre, as were many members of my generation.

Please pause for a moment to remember these students.
At that time Memphis had mandatory Army ROTC for all high school sophomores and juniors.  As an Army ROTC cadet, it was my responsibility to raise the American flag in front of the school each morning.

On May 5th I committed my first act of civil disobedience.  Following proper procedure, I raised the flag to full mast, then lowered it to half mast, in honor of the slain.

The response of the Major who was in charge of the school’s ROTC unit could not have been more appropriate. He respected my view, but had the flag raised.  I was not disciplined, and I remained in charge of the procedure for the rest of the year.  The Major was a good man and also a good teacher.  At a hard time he taught me a lot about having a civil debate and respecting others.

Those of us who were around at that time need to pass on what we learned to our younger peers, along with our prayers that they never face a similar situation.  It was not always only pies which were thrown about campuses.

I just got back form the Texas Capitol.  The bad news is that the GOP dominated Texas House approved sending a constitutional amendment to voters this fall defining marriage as between one man and one woman and banning even civil unions by a vote of 102 to 29.

The good news is that the Democrats who spoke in the debate forcefully and energetically called the amendment bigoted, hateful and discriminatory.  

I was proud of those who spoke out, especially representatives Rafael Anchia of Dallas, Jessica Farrar of Houston and Mark Strama of Austin.  It was clear that the theocrats could pass whatever they wanted, and these folk could have simply gone silent without any political risk, especially Rep. Strama who is from a close district.  But they did not.

If you live in Texas consider writing a note of encouragement to these three as well as to Senfronia Thompson, Elliott Naishtat, Lon Burnam, Garnet Coleman, Mike Villarreal and others who stood against the bigotry and called it what it was on the House floor.

The resolution must still go to the State Senate, which is not as committed to taking up the matter as the House was, and is not, although dominated by the Republicans, as conservative and reactionary as the State House.

I met or spoke privately with Farrar, Anchia and Strama before the vote, and I was impressed by the fervor with which they addressed the problems of the gay community.  These folk are our friends, and they did fight for us, even though it was certain they would lose.  I am proud of them and the work they are doing.

The expressions of solidarity with gay and lesbian Texans by the Democrats so dominated the actual debate that, despite the final vote, I left the Capitol feeling more affirmed and respected by my allies than trashed by my enemies.  Over and over again a Democrat rose to denounce the Amendment as discriminatory, hateful or bigoted, and to affirm the need to equally protect all Texas citizens under the law and Constitution.

There is a good summary of the late night coverage (including Comedy Central and SNL) of DeLay in this morning’s Austin American-Statesman:

link

“Late-night TV comics have discovered the pugnacious ex-exterminator from Sugar Land and are helping to make DeLay into a household name — and not in a good way.”

Drip, drip, drip.
The downside for DeLay is tremendous:

“The potential for damage might be greater for DeLay because he remains relatively unknown outside of Texas and Washington. Forty-two percent of people polled April 1 and 2 had never heard of DeLay or knew so little about him they had no opinion of his performance, a CNN/USA Today/Gallup Poll found.

A significant number of voters, particularly those 18 to 29, rely on late-night comedy routines for much of their political news, according to a 2004 poll by the Pew Center for the People and the Press.

In addition, a study by Dannagal Goldthwaite Young, a doctoral student at the University of Pennsylvania’s Annenberg School for Communication, found that late-night monologues and skits most influence viewers who aren’t particularly knowledgeable about politics.”

Young voters are crucial to us. They listen to Jon Stewart, and they are far less homophobic than their parents.

They may not understand the danger the deficit poses for them, but they do understand the danger of The Church Lady having more control of their lives.  Chastity belts are not popular with this crowd.  And they understand and loathe hypocrisy.

Talk to the youth.  I have found that my 17 year old son and I can communicate around Jon Stewart and SNL very well.

On April 14th, a Texas House committee unanimously approved a bill, HB 254, restructuring sentences for possession of low amounts of marijuana (under two ounces) in Texas.  Fines and drug abuse awareness classes would replace jail sentences under the proposed law for most offenders.  The bill should go to the full house soon.

The Texas legislature is under a lot of pressure to reduce jail and prison overcrowding, and this bill may well pass.  As a Criminal Defense attorney in Austin, I can attest that it is badly needed.  The Fort Worth Star Telegram has a report:

http://www.dfw.com/mld/dfw/news/legislature/11406856.htm
“Texas lawmakers are one step closer to making possession of an ounce or less of marijuana a Class C misdemeanor, the same category as most traffic violations.

The House Criminal Jurisprudence Committee approved House Bill 254 on Thursday, setting the bill up for debate on the House floor.

Current law assigns the same punishment for possession of a few seeds of marijuana as it does for as much as 2 ounces.”

The Bill is being pushed by NORML and the ACLU of Texas.

One effect of the proposed legislation would be to keep a large number of young people out of the probation system.  This would have a dramatic impact on the lives of these kids, and free up badly needed criminal justice resources to deal with more serious problems.

The Texas legislature is also seriously reworking the state’s probation system to reduce the number of probationers sent to prison for minor or technical violations of probation.  Again, the primary motive is money – it is interesting to see the Republican majority scrambling to do almost anything to avoid raising taxes, even if it means treating people in the criminal justice system more fairly.

My 17 year old son and I just got back from hearing Senator Kerry and Congressman Lloyd Doggett speak here in Austin, primarily on children’s access to health care.  It was great.  Kerry did state an agenda on children’s health care and he tied it to stopping further tax cuts for the ultra-rich – on valuing families instead of letting someone dictate a family’s values.

He managed to work the word DELAY into the Republican agenda over and over again, and the importance of insisting on ethical values in congress.  Both he and Doggett addressed DeLay’s redistricting of Texas, which Doggett survived.

Kerry also slammed Frist for presuming to tell people what God thinks, although I cannot recall Kerry’s exact words on this.  It sure felt good to hear him do it and to hear everyone roar in unison when he did.  Kerry spoke about the values he grew up with in his family and his Church requiring him to value children and their health over tax cuts for the wealthy.
It felt great to hear two of our people in Congress talking about how important 2006 is and how we need to be angry and active and energized now on the grass roots level in order to be ready for 2006.  He spoke about Democratic gains on the state levels in Colorado, Montana and New Hampshire, and how these can be replicated all over America, even in Texas – especially in Dallas and Austin.

And he did it while focusing very clearly on the importance of valuing children, and giving every child medical coverage.  A local Emergency Room doctor from the Children’s Medical Center in Austin also spoke about the day to day crises she sees because of children having no health care funding.

Kerry fielded questions from the audience for over an hour – and Doggett also responded to one about the bankruptcy bill.  Kerry and Doggett both emphasized that the meeting was open and all views were welcome – in stark contrast to the Bush Social Security tour.

I hope there are more meetings like this all over the country with more of our leaders.  Kerry kept the focus on 2006 whenever politics came up – not on 2004 or 2008, which was great – and on the need to get ready for 2006 now.

I feel so much better than I did before I went.  It was great to see my son get so energized.  He ran into several college friends and they got a group picture with Kerry.  What a family outing for a Saturday morning here in Austin.