Gay rights battle raging in California

By DAN WALTERS

SACRAMENTO BEE

Current California law makes it illegal for schools to offer instruction or an activity that “reflects adversely upon persons” because of their race, sex, color, creed, handicap, national origin or ancestry.

A new law scheduled to take effect in January would revise the protected list to disability, gender, nationality, race or ethnicity, religion, sexual orientation. It would also change the words “reflects adversely” to “promotes a discriminatory bias.”

Those are fighting words to warriors in California’s never-ending culture wars. When the Legislature passed and Gov. Arnold Schwarzenegger signed the legislation, Senate Bill 777 by Democratic Sen. Sheila Kuehl of Santa Monica, gay rights advocates celebrated and religious conservatives fumed. And now the long-warring factions are likely to take their fight to voters.

A coalition of SB 777 opponents is circulating referendum petitions to place the measure before voters. They claim the response has been strong in early signature gathering. “I think we’re going to make it and then some,” says Karen England of the Capitol Resource Institute. It could be a dual duel if another measure aimed at outlawing same-sex marriage also makes the ballot.

Opponents of SB 777 also have opened another front by filing a federal lawsuit contending that it’s constitutionally vague and violates the privacy of students, teachers and others on school campuses.

Kuehl and other advocates of the measure say it’s needed to protect gays and others with non-heterosexual orientations from being harassed in schools. Opponents say it will force teachers and school officials to silence anyone who is morally opposed to homosexuality and allow anyone to claim privileges based on self-defined sexual orientation.

“What will prevent the 250-pound linebacker from deciding he wants to share the locker room with the cheerleaders?” Robert Tyler, a lawyer for Advocates for Faith and Freedom, which filed the suit, said in a statement.

Moral conflict

A fundamental philosophical, or even moral, conflict lies at the heart of the political clash — the same conflict that fuels the perennial battle over same-sex marriage. One side believes that homosexuality, bisexuality or other non-heterosexual orientations are within the normal range of humanity. The other side believes that they are immoral aberrations.

Such stark differences present a dilemma for the political process, which is based on compromise and accommodation. Schwarzenegger vetoed a previous Kuehl bill that was only slightly different, saying it was too vague and that the Education Code’s prohibitions on discrimination were adequate. He signed SB 777 this year without explaining why it was different. But he has steadfastly rejected legislation that would authorize same-sex marriages, saying the issue should be left to the courts or voters.

Setting aside, for the moment, the underlying philosophical conflict, SB 777 is another troublesome step down the slippery slope of politics dictating what version of history and current events children should be taught.

Moreover, while the law professes merely to protect against instruction that “promotes a discriminatory bias” — which sounds plausible on its face — lawsuit-leery educators may see it as forcing them to censor or repress anything that even indirectly touches on sexual orientation in a way that someone, somewhere, sometime might consider offensive.

The specter of a 250-pound linebacker seeking to shower with cheerleaders is extreme and unlikely, but SB 777 does open a door to vexatious litigation. The protected classes in current law are fairly self-evident, but sexual orientation is a matter of personal identification. Just about anyone — including the most testosterone-soaked heterosexual — could claim injurious discrimination.

Scripps Howard News Service