Monday, March 27, 2006

Should Liberty Counsel be through in Viroqua?

Professor McAdams at Marquette Warrior and Peter DiGuadio at Texas Hold 'em have commented extensively on the decision by the Viroqua (Wis.) High School to cancel its planned "Diversity Day." The day would have included speakers who were Hmong, Jewish, Muslim, American Indian, African American, Latino, Buddhist,physically disadvantaged, poor and, most notably for our purposes, gay. The idea was to provide students an opportunity to "come into contact with people of different backgrounds."

When requested to include speakers who would present a traditional Christian perspective on homosexuality (including, apparently, an "ex-gay"), the School initially refused. You ought not get carried away with this diversity stuff. After they were told by a public interest law firm called Liberty Counsel that this would be sort of completely unconstitutional (and confirming that with their own lawyers), they decided to call the whole thing off. Some backgrounds, the school believes, are better left "uncontacted." “Non-positive groups were not what we were going for,” said Ellen Byers, an English teacher on the planning committee.

I'm not going to repeat what others have said about how close-minded this is, but I do want to suggest that cancelling the event does not solve the constitutional problem.

Our Supreme Court has declared that government messages about religion must be neutral. It has insisted that the state refrain from "endorsing" religion or irreligion so as not to make nonadherents feel like outsiders, "disfavored members of the political community."

(Faithful readers of this blog will know that I chase this endorsement test, about which I just finished an article, like Ahab sought the white whale.)

You can violate this indirectly. You can violate neutrality by what you don't teach. In Epperson v. Arkansas, the Court held that an Arkansas law forbidding the teaching of evolution violated the establishment clause because it was motivated by the religious beliefs of creationsist. Prohibition was not religiously neutral.

What was the motivation for the cancellation of the Viroqua event? What message did it send to traditional Christians about how the state views them? Doesn't it say that they are regarded as so odious that an otherwise desireable pedagogical event must be cancelled rather than include them? That their views are "nonpositive?" Won't this - doesn't this - make them feel like outsiders and disfavored members of the political community?

There are all sorts of prudential - and even some legal - reasons for declaring victory and going home. But if rigorous neutrality with respect to religion is required, Viroqua has fallen short.


Jay Bullock said...

I was under the impression that the idea behind "Diversity Day" was that students see pro-Christian messages, speakers, people all the time around them in daily life, from their teachers to their parents to their neighbors. The folk from other religions (and the gay speaker) were not, as I understand it, there to recruit, but rather just to say, "Hey, we exist, and we're not scary."

The "ex-gay" speaker (aside: would gay speakers get more or less traction if they identified as "ex-straight"?) would, instead of saying "Hey, we exist, and we're not scary," have said "Gays shouldn't exist." That is closer to a recruiting message ("Hey, kids, if you think you're gay, you're really not!"), and it is also likely a message the students are familiar with already.

While I know Viroqua's lawyers have already rendered the discussion moot, my understanding has always been that you can teach about anything as long as you don't advocate it. In other words, when I teach John Donne, I teach about Catholicism and Calvinist Protestantism, while advocating neither. The "ex-gay" is the closest speaker on the list to being an advocate of anything.

Rick Esenberg said...

Well, I'm not sure they do see such messages, but that's not the point. The problem is in creating a limited public forum and then closing it on religious grounds. That's clearly unconstitutional and that's why Viroqua caved.

I can't agree that the gay speakers were not "advocating something." "We're not scary" or, more accurately, "what we do is not wrong and ought to be accepted by you" is a statement of advocacy.

It's one that I endorse, but a school district ought not to permit the advocacy of one view and then exclude the promotion of its opposite.