Another Victory for GSA Clubs

In yet another victory for the Equal Access Act, a Federal district judge in Georgia has ruled that a school must allow a Gay Straight Alliance club to meet on school grounds just as it does other groups. The response from the Alliance Defense Fund is stunning in its dishonesty:

But Mike Johnson, senior legal counsel with the Alliance Defense Fund, points out the Equal Access Act cited by the ACLU was intended to ensure that religious clubs in public secondary schools receive the same treatment afforded to secular non-curriculum-related student clubs. Johnson says for the last 20 years, that legislation has bolstered the religious freedom rights of Christian student clubs, but now is being used to force schools to admit organizations they regard as morally objectionable.

And he's right, the Equal Access Act does ensure that religious clubs receive the same treatment as secular student clubs in public secondary schools. But that's not all it does. This is just another example of how conservatives change their mode of judicial interpretation to fit the conclusion they want. For example, the iconic conservative Justice Scalia argues that we should look first at the text and never to the legislative history to determine the meaning of the statute. And what does the text of the Equal Access Act say? This:

(20 U.S.C. §§ 4071-74) DENIAL OF EQUAL ACCESS PROHIBITED Sec. 4071. (a) It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

If the legislature had intended to protect only the rights of religious groups to meet, then why did they list all of the other types of clubs whose speech is protected on grounds other than religion? Certainly it's true that it was discrimination against religious groups that led to the adoption of the law, but the law was worded far more broadly and that was intentional. So what the ADF is demanding is that the text of the law be ignored in this case and we should look only at the legislative history of the bill - the precise opposite of what they would be arguing if it didn't lead to a result they didn't like.

This is a commom mistake made by conservatives when it comes to constitutional interpretation. Many make the same mistake when it comes to the 14th amendment, for example. Time and again I've heard people argue that the 14th amendment was intended only to correct racial imbalances. And that's true, of course, the passage of the 14th amendment was precipitated by the racial problems during reconstruction. But the text of the amendment is not specific to race. The equal protection clause demands equality before the law on all counts, not merely on racial grounds.

There's more to the ADF's response. Here's what they think schools should do:

"If at least one non-curriculum-based organization is allowed, the school probably has to remain open to all such organizations," Johnson says. "But the solution there is what we call 'compliance without complacency.'"

The attorney explains that means school districts like White County ought to enact "very specific and strict regulations" that would prohibit any student program or presentation that is "unlawful or vulgar," would contribute to the delinquency of a minor, or be disruptive to the school.

"The discussion of human sexuality will very often cross the line and even violate existing state statutes," he notes, "and we have had courts uphold those kinds of restrictions."

But there is nothing unlawful or vulgar about a club devoted to building solidarity against anti-gay actions among students. This is more of that religious right obsession with gay sex. They simply cannot conceive of any issue that affects gay people without imagining orgies in bathhouses. But in the real world, gay teenagers have all sorts of issues to deal with that have nothing to do with sex, not the least of which is the hatred they are exposed to from bigots.