Amicus Curiae Brief — Board of Education v. National Gay Task Force

IN THE

Supreme Court of the United

OCTOBER TERM, 1984

>

THE BOARD OF EDUCATION OF THE CITY OF OKLAHOMA CITY,

STATE OF OKLAHOMA,

Appellant,

—

THE NATIONAL GAY TASK FORCE,

Appellee.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT

AMICUS CURIAE BRIEF ON BEHALF OF THE APPELLEE BY

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC., AND

THE FOLLOWING ORGANIZATIONS: NOW LEGAL DEFENSE AND

EDUCATION FUND; THE LESBIAN RIGHTS PROJECT; GAY AND

LESBIAN ADVOCATES AND DEFENDERS; THE BAR ASSOCIATION

FOR HUMAN RIGHTS OF GREATER NEW YORK; THE COMMIS-

SION ON FREEDOM OF SPEECH OF THE SPEECH COMMUNICA-

TION ASSOCIATION; GAY TEACHERS ASSOCIATION, NEW YORK

CITY; AND GAY AND LESBIAN EDUCATORS OF

SOUTHERN CALIFORNIA, 7

December 17, 1984 Abby R. Rubenfeld*

Managing Attorney

Evan Wolfson

Rosalyn Richter

Kevin Kopelson

Craig Davidson

Cooperating Attorneys

LAMBDA LEGAL DEFENSE

AND EDUCATION FUND, INC.

132 West 43rd Street

New York, New York 10036

*Counsel of Record (212) 944-9488

TABLE OF CONTENTS

PAGE

ee EEE oc cccsccccccccccceecces ill

INTEREST OF AMICUS CURIAE.................. 2

SUMMARY OF ARGUMENT...................... 6

ARGUMENT

POINT |

THE OKLAHOMA STATUTE VIOLATES THE

RIGHTS OF TEACHERS AND OTHER CITIZENS

TO SPEAK ABOUT HOMOSEXUALITY, EXPRES-

SION PROTECTED BY THE FIRST AMENDMENT 7

A) Speech about homosexuality is valuable and im-

portant, and is within the mainstream of public

EE LI ee i)

B) Speech about homosexuality does not fall within

any of the narrow categories of unprotected

C) The Oklahoma statute unconstitutionally deprives

teachers of their protected right to speak about

EE 14

POINT Il

THE SWEEPING PROSCRIPTIONS OF THE

OKLAHOMA STATUTE CHILL PROTECTED

EE EREPPTOTTITTTLETLTLT TELE 16

POINT Ill

NO ASSERTED STATE INTEREST WARRANTS

SUCH A SWEEPING CURTAILMENT OF PRO-

TECTED SPEECH ABOUT HOMOSEXUALITY .. 20

CONCLUSION.............

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Cases PAGE

Acanfora v. Board of Education, 491 F.2d 498 (4th Cir.),

cert. denied, 419 U.S. 836 (1974)... 2... 6... eee 8, 14

Aumiller v. University of Delaware, 434 F. Supp. 1273

ed ee ee ek scceccccccccccs 14

Baggett v. Bullitt, 377 U.S. 360 (1964) ............... 18

Bates v. City of Little Rock, 361 U.S. 516 (1960)...... 18

Brandenburg v. Ohio, 395 U.S. 444 (1969) ........... 13

Burton v. Cascade School District, 353 F. Supp. 255 (D.

Or. 1973), aff'd per curiam, 512 F.2d 850 (9th Cir.),

cert. denied, 423 U.S. 839 (1975)... ... 2.2... .6065. 20

Cohen v. California, 403 U.S. 15 (1971). ............. 7, 12

Community Service Broadcasting v. FCC, 593 F.2d 1102

EEE Lee ec enecccccescecesess 19

Dombrowski v. Pfister, 380 U.S. 479 (1965) .......... 16

Fricke v. Lynch, 491 F. Supp. 381 (D.R.1. 1980) ...... 7

Gay Activists Alliance v. Board of Regents of University

of Oklahoma, 638 P.2d 1116 (Okla. Sup. Ct. 1981) .. 12

Gay Alliance of Students v. Matthews, 544 F.2d 162 (4th

EES re 12

Gay Law Students Association v. Pacific Telephone and

Telegraph, 24 Cal. 3d 458, 595 P.2d 592, 156 Cal.

ee Seen cedeeseowe vice ccccccs 9, 10

Gay Lib v. University of Missouri, 558 F.2d 848 (8th Cir.

1977), cert. denied sub nom., Ratchford v. Gay Lib,

Neen ee es ccc esccececcaces 12

Gay Students Organization v. Bonner, 509 F.2d 652 (ist

a DME se shee éeteseeteccees 9, 12

iV

PAGE

Gay Student Services v. Texas A. & M. University, 737

F.2d 1317 (Sth Cir. 1984), appeal filed, Oct. 31,

Se bs camtinddbs ceewanseasceebabedenasécas soe <es 7, 12

Hess v. Indiana, 414 U.S. 105 (1973) ................ 13

Keyishian v. Board of Regents, 385 U.S. 589

Ss cbdns bhdcdee Vek eeeneeensandadne 13, 16, 18

Morrison v. State Board of Education, | Cal. 3d 214,

461 P.2d 375, 82 Cal. Rptr. 175 (1969) ............. 20

NAACP v. Alabama, 357 U.S. 449 (1958). ........... 9

NAACP v. Button, 371 U.S. 415 (1963). ............. 7, 18

NGTF v. Board of Education, 729 F.2d 1270 (10th Cir.

er ee ee 13, 16

Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969). ...... 20

Papish v. Board of Curators, 410 U.S. 667 (1973) ..... 7

Pickering v. Board of Education, 391 U.S. 563 (1968). . 14

Police Department v. Mosley, 408 U.S. 92 (1972)...... 7

Robinson v. California, 370 U.S. 660 (1962).......... 20

Shelton v. Tucker, 364 U.S. 479 (1960)... ............ 19

Spence v. Washington, 418 U.S. 405 (1974)........... 7

Student Coalition for Gay Rights v. Austin Peay State

University, 477 F. Supp. 1267 (M.D. Tenn. 1979) .... 12

Thornhill v. Alabama, 310 U.S. 88 (1940) ............ 16

Tinker v. Des Moines Independent Community School

es Gee es ns bb deb cdonscnckcnat 14, 15

Whitney v. California, 274 U.S. 357 (1927)........... 12, 20

Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972)... 12

Vv

PAGE

Statutes and Regulations

ee EE Fo cbc edebereeccbccoccdvoues 10

OPM Memorandum, May 12, 1980.................. )

Pub. L. No. 98-377 (Aug. 11, 1984) ................. 17

Wis. Stat. §§ 66.433, 101.22, 111.36..............05. 9

Other

Ballot Pamp. Proposed Amendments to Cal. Const.

with arguments to voters, Gen. Elec. (Nov. 7, 1978),

Di MP aUUn hebben Bhs Sbhwh bAbb0Gs coc cei peceesceces 8

Bell and Weinberg, Homosexualities: A Study of Diver-

sity Among Men and Women (1978) ...........655: 10

Boggan, Haft, Lister, Rupp and Stoddard, The Rights of

Be PS bce heb eebceccscccceccoenceeses 9

Boston re PCC onc... ceeneneans ee sees 22

Boswell, Christianity, Social Tolerance and Homosexu-

Ss RES e eh dotiaed Cavbuedwe céceoscenceees 10

Calderone and Johnson, The Family Book About Sexu-

ee nr a errr r ey Tre rrr re a Te 21

Green, Sexual Identities of 37 Children Raised by Ho-

mosexual or Transsexual Parents, 135 Am. J. Psychia-

PPE Rceccceceecnseseresccncseccenssceces 21

Hotvedt and Mandel, Lesbians as Parents: A Prelimi-

nary Comparison of Heterosexual and Homosexual

Mothers and Their Children (1982) ...... 2.0.6.6 465: 21

Los Angeles Herald-Examiner, Nov. 1, 1978 .......... 22

Marmor, Homosexual Behavior: A Modern Reappraisal

DccdewacenGhheeseehiecenréeceensdessteses 21

Vi

PAGE

National Institute of Mental Health Task Force on

Homosexuality, Final Report and Background Papers

PUN o in00065dh0cbesecd- cotsuscescacnterecencs 10, 21

9 Psychiatric News 1 (1974) .......... 0. ccc eee ee eeee 11

Rivera, Our Straight-Laced Judges: The Legal Position

of Homosexual Persons in the United States, 30 Hast-

PPT TT TT TTT TTT TTT Te 9

Rivera, Recent Developments in Sexual Preference Law,

30 Drake L.Rev. 311 (1981) .............0000 00 eee )

Scholz, Out of the Closet, Out of a Job: Due Process in

Teacher Disqualifications, 6 Hastings Const. L.Q. 663

Pa ee eee er pe er Ty See 18, 22

State of Oregon Department of Human Resources, Final

Report of the Task Force on Sexual Preference (Dec.

Ry CPU ho hk cd cecddbewacbbbissddcdsesoeedesecees 21

Tripp, The Homosexual Matrix (1975) ..........0066: 10

Weinberg, Bell and Hammersmith, Sexual Preference:

Its Development in Men and Women (1983)......... 21

Wilson and Shannon, Homosexual Organizations and

the Right of Association, 30 Hastings L.J. 1029 (1979) = 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 83-2030

-

THE BOARD OF EDUCATION OF THE CITY OF OKLAHOMA CITY,

STATE OF OKLAHOMA,

Appellant,

—

THE NATIONAL GAY TASK FORCE,

Appellee.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS,

TENTH CIRCUIT

\

>

AMICUS CURIAE BRIEF ON BEHALF OF THE APPEL-

LEE BY LAMBDA LEGAL DEFENSE AND EDUCATION

FUND, INC., AND THE FOLLOWING ORGANIZATIONS:

NOW LEGAL DEFENSE AND EDUCATION FUND; THE

LESBIAN RIGHTS PROJECT; GAY AND LESBIAN ADVO-

CATES AND DEFENDERS; THE BAR ASSOCIATION FOR

HUMAN RIGHTS OF GREATER NEW YORK; THE COM-

MISSION ON FREEDOM OF SPEECH OF THE SPEECH

COMMUNICATION ASSOCIATION; GAY TEACHERS AS-

SOCIATION, NEW YORK CITY; AND GAY AND LESBIAN

EDUCATORS OF SOUTHERN CALIFORNIA.

INTEREST OF AMICUS CURIAE

LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.

(“LAMBDA”), appearing as amicus curiae with the written

consent of the parties to the instant case, is a New York

nonprofit corporation, and is the oldest and largest national

gay and lesbian legal organization in the country. LAMBDA

was organized in 1973 “to seek, through the legal process, to

insure equal protection of the laws and the protect on of civil

rights of homosexuals” and in furtherance of that purpose, “to

initiate or join in judicial and administrative proceedings

whenever legal rights and interests of significant numbers of

homosexuals may be affected.” LAMBDA Certificate of In-

corporation 4 2.2(a).

LAMBDA has appeared as counsel of record or as amicus

curiae in numerous cases involving the legal rights of gay men

and lesbians in state and federal courts throughout the country,

including major challenges to statutes which restrict the consti-

tutional rights of lesbians and gay men, and in cases that have

challenged laws, regulations, or private actions which discrimi-

nate against or restrict the basic civil rights of gay men and

lesbians.

In accordance with its purposes, LAMBDA has a strong

interest in this case, and submitted an amicus curiae brief to

the United States Court of Appeals for the Tenth Circuit on

behalf of the appellee, National Gay Task Force. LAMBDA is

particularly concerned about the far-ranging impact of the

challenged statute on the First Amendment rights of teachers

and prospective teachers, gay and non-gay alike.

NOW LEGAL DEFENSE AND EDUCATION FUND (“NOW

LDEF”) is a nonprofit civil rights organization that performs a

broad range of legal and educationa! services nationally in

support of women’s efforts to eliminate sex-based discrimina-

tion and secure equal rights. NOW LDEF was established in

1970 by leaders of the National Organization for Women, a

membership organization of over 200,000 men and women in

3

more than 700 chapters throughout the United States. NOW

LDEF is particularly concerned with the elimination of barriers

that deny gay women, including lesbian teachers, economic

and employment opportunities, and with challenging statutes

that restrict the First Amendment rights of women and men.

THE LESBIAN RIGHTS PROJECT (“PROJECT”) is a San

Francisco-based nonprofit public interes. law firm organized to

protect and defend, through legal action and legal education,

the rights of lesbians and gay men. The PROJECT provides

representation in both individual and impact cases, conducts

community education programs to inform lesbians and gays of

their legal rights, holds lawyer education programs to improve

the quality of advocacy on behalf of lesbians and gay men, and

produces articles, bibliographies and litigation manuals for use

by attorneys throughout the country. The PROJECT’s attor-

neys are litigators experienced in constitutional and civil rights

litigation, including both First Amendment and teacher cases,

in state and federal courts in many areas of the United States.

GAY AND LESBIAN ADVOCATES AND DEFENDERS

(“G.L.A.D.”), incorporated in Massachusetts as Park Square

Advocates, Inc., a nonprofit tax-exempt corporation, was

founded to remedy the legal disabilities suffered by gay men

and lesbians and is dedicated to the abolition of restrictions on

the civil rights of homosexuals in the United States. Through

its written materials and public speaking, G.L.A.D. educates

the lesbian and gay community, the legal community and the

public at large concerning the legal problems suffered by

lesbians and gay men and the remedies available for those

problems. Through its public interest litigation, G.L.A.D.

participates in civil and criminal cases involving lesbians and

gay men who have been discriminated against on the basis of

their sexual orientation and works to vindicate and expand

lesbian and gay civil rights.

THE BAR ASSOCIATION FOR HUMAN RIGHTS OF GREATER

NEw YorK (“ASSOCIATION”) is a professional association

of the legal community concerned with the rights of lesbians

4

and gay men. Among the purposes cited in its certificate of

incorporation are: “to further the science of jurisprudence as it

relates to lesbians and gay men” and “to work with lesbian and

gay irterest groups and individuals to promote the achievement

of equal rights for all people in our society.” The ASSOCIA-

TION pursues its purposes through provision of legal services

on a pro bono basis within the lesbian and gay community,

educationa! programs, a legal newsletter, and cooperation with

community organizations such as Gay Men’s Health Crisis,

Inc., and national legal organizations such as LAMBDA. As

lawyers concerned with the rights of all citizens to speak out on

the legal issues surrounding homosexuality, the members of the

ASSOCIATION have a special concern with the questions

raised by the instant statute.

THE COMMISSION ON FREEDOM OF SPEECH OF THE SPEECH

COMMUNICATION ASSOCIATION (“COMMISSION”) was es-

tablished by the Speech Communicat.>:. Association in 1961 to

promote the study and preservation of freedom of speech in

the American educational system. The Speech Communication

Association itself is a national professional organization of

college and university professors and high school teachers

which seeks to encourage research in and the teaching of

speech communication. The COMMISSION also submitted an

amicus curive brief to the Tenth Circuit on behalf of the

appellee, National Gay Task Force.

The GAY TEACHERS ASSOCIATION, NEW YORK CITY

(“GTA”) and the GAY AND LESBIAN EDUCATORS OF

SOUTHERN CALIFORNIA (“GALE”) are organizations founded

to serve as support systems for and to address the needs of gay

and lesbian teachers. The two organizations work to articulate

the needs and problems of the thousands of gay and lesbian

teachers in Southern California and metropolitan New York

City, to insure the rights of gay teachers within those school

systems, and to integrate gay teachers in the broader struggle

for equal rights for gay men and lesbians. Both organizations

have a strong interest in protecting the First Amendment rights

of teachers and in challenging the serious infringement of

5

fundamental constitutional rights of gay and non-gay teachers

imposed by the Oklahoma statute.

All of the organizations which have joined LAMBDA in this

amicus curiae brief share with LAMBDA a deep concern about

the severe impact, including the serious chilling effect, of the

challenged statute on the exercise of First Amendment righ*s

of all teachers, gay and non-gay, in Oklahoma and around the

country. ;

SUMMARY OF ARGUMENT

Oklahoma’s attempt to silence those who would speak out

on issues relating to homosexuality violates the First Amend-

ment and chills the expression of ideas and identity. Speech

about homosexuality is neither obscenity nor incitement.

Speech about homosexuality includes discussion of politics,

civil rights, history, culture, family, and personal sentiment,

often by people not themselves gay or lesbian. Such important

expression is protected by the same strict constitutional safe-

guards as other speech.

The Oklahoma statute is not only an impermissible restraint

on speech based on its content, but an abrupt departure from

the well-established First Amendment rights of teachers recog-

nized by this Court. The Tenth Circuit correctly found no

legitimate state interest warranting such an invasive interfer-

ence with expression at the core of public debate and at the

heart of personal freedom.

ARGUMENT

POINT I

THE OKLAHOMA STATUTE VIOLATES THE RIGHTS

OF TEACHERS AND OTHER CITIZENS TO SPEAK

ABOUT HOMOSEXUALITY, EXPRESSION PRO-

TECTED BY THE FIRST AMENDMENT.

The Oklahoma statute is on its face a content-based restric-

tion on expression dealing with issues of homosexuality.’ The

statute is defective in its outright attempt to prevent individ-

uals — gay and non-gay, public employees and private citizens

alike — from voicing any but the most negative opinions on

one particular subject. This kind of content-based ban on the

exchange of ideas has been repeatedly rejected as anathema to

democratic self-government and the fulfillment of individual

freedom. See, e.g., Police Department v. Mosley, 408 U.S. 92,

96 (1972); Cohen v. California, 403 U.S. 15, 24 (1971).

The possibility that certain views are not shared by the

majority, or ar controversial, does not take those views

outside the protection of the First Amendment. Spence v.

Washington, 8 U.S. 405 (1974); Papish v. Board of Cura-

tors, 410 U.S. 667, 670 (1973); NAACP v. Button, 371 U.S.

415 (1963); Gay Student Services v. Texas A. & M. University,

737 F.2d 1317 (Sth Cir. 1984), appeal filed, Oct. 31, 1984;

Fricke v. Lynch, 491 F. Supp. 381 (D.R.1. 1980) (First Amend-

ment protects gay high school student's choice of prom date).

In fact, protection of such ideas is one of the classic functions

of the First Amendment.

! This case does not present the issue of the validity of statutes

orohibiting private consensual sexual activity between adults. Regard-

less of the constitutional protection due such intimate choice, however,

individuals clearly have the right to discuss it, and even advocate,

encourage, and promote it.

Moreover, when prejudice about gay people has been sub-

jected to intense public debate and scrutiny in the free market-

place of ideas, the underlying stereotypes and resulting

ee ane tree

California Proposition 6 (“Briggs Initiative”).“ In attempting

to suppress expressions about homosexuality not conforming

to its viewpoint, Oklahoma has violated the most basic First

Amendment rights of all its citizens.’ The Tenth Circuit cor-

rectly struck down this sweeping restriction on protected

speech.

A) Speech about homosexuality is valuable and important,

and is within the mainstream of public debate.

The Oklahoma statute prohibits a wide range of constitu-

tionally protected speech of both public and personal signifi-

cance. Speech about homosexuality punished by this statute

includes expression about politics and civil rights. See, e.g.,

Acanfora v. Board of Education, 491 F.2d 498, 500 (4th Cir.),

cert. denied, 419 US. 836 (1974) (“press, radio, and television

(Nov. 7, 1978), p. 29. The Briggs Initiative was condemned by both

President Jimmy Carter and California Governor Ronald Reagan. The

California vote climaned months of public debate, in part initiated by

3s Appellant asserts that “only ieachers come within [the] ambit” of

the statute’s restriction on speech (Brief at 34). In fact, on its face, the

statute reaches student-teachers and teachers’ aides as well. Addi-

tionally, all those who wish ever to be a teacher or other school

employee suffer directly the statute's impact. Finally, all citizens are

harmed by the stifling of free expression, the mandating of state-en-

forced silence on an important issue, and the heightened stigma to

those who believe in the right of Americans to private choice in

9

about which reasonable people could differ”). Under this

statute, therefore, many Oklahoma residents could not advo-

cate the repeal of criminal sodomy laws, although such reform

is clearly a political issue of great importance.‘

Public speech about homosexuality includes association with

others of similar viewpoint to achieve political and social ends.

See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958); Gay

Students Organization v. Bonner, 509 F.2d 652, 661 (ist Cir.

1974) (“communicative opportunities are even more important

for [gay groups and their members] than political teas, coffees,

and dinners are for political candidates and parties”). In

Bonner, the First Circuit noted that

beyond the specific communications. . . is the basic

“message” .. . that homosexuals exist, that they

feel repressed by existing laws and attitudes, that

they wish to emerge from their isolation, and that

public understanding of their attitudes and problems

is desirable for society.

4 Courts have recognized that

[t}he aims of the struggle for homosexual rights, and the

factors employed, bear a close analogy to the continuing

struggle for civil rights waged by blacks, women, and other

so ta

See, e.2., Gay Law Students Association v. Pacific Telephone and

Telegraph, 24 Cal. 3d 458, 488 (1979). Indeed, civil rights for gay men

law repeal are mainstream political issues.

included sexual orientation in its compre-

is. Stat. §§ 66.433, 101.22, and 111.36.

Without the ability to associate, there is no exchange of

ideas or meaningful opportunity for public debate, yet the

Oklahoma statute chills such assembly and thus prohibits the

encouragement of legal reforms. The fact that the subject is

homosexuality or the exercise of civil rights by gay people does

not alter these hallowed principles of free government. See

generally, Wilson and Shannon, Homosexual Organizations

and the Right of Association, 30 Hastings L.J. 1029 (1979).

In addition to political speech and association, speech about

homosexuality includes discussions of culture, literature, reli-

gion, and history, as well as current events. Just as gay people

are everywhere, in every region, religious and ethnic group,

economic class, educational level, and occupation, so homo-

sexuality includes aspects of life and society beyond the mere

physical intimacy of two human beings who happen to be of

the same sex.®

S This is not to say that teachers could interrupt their classes or digress

from the curriculum to discuss thew personal sexual onentation, gay or

otherwise. Such a step is already prohibited by other Oklahoma

Statutes and curriculum guidelines. See Okla. Stat. tit. 70 § 6-103.

6 “Homosexual adults are a remarkably diverse group.” Bell and

Weinberg, Homosexualities: A Study of Diversity Among Men and

Women 217 (1978). Moreover, as experts have observed,

[hjomosexuality encompasses far more than people's sexual

prochvities. Too often homosexuals have been viewed simply

with reference to thew sexual mmterests and activities. Usually,

the social context and psychological correlates of homosexual

experience are ignored, making for a highly constricted image

of the persons involved.

Id.at 24-25. See also., e.2., Boswell, Christianity Social Tolerance and

Homosexuality (1981), Tripp, The Homosexual Matrix (1975), Na-

tional Institute of Mental Health Task Force on Homosexuality, Fine/

Report and Background Papers (1972).

Under the Oklahoma statute, however, a teacher would have

been unable to take part in, or speak favorably of, develop-

ments such as the reclassification of homosexuality by the

American Psychiatric Association.’ A prospective teacher in

Oklahoma could not attend without fear a local university’s

presentation of the Broadway show Bent with its sympathetic

treatment of gay people and their plight under Nazism. This

statute would prevent teachers from participating in church-

sponsored debates on theology and homosexuality within their

denomination.*® Such examples demonstrate the extent to which

Oklahoma has invaded the rights of its citizens.”

7 Increased understanding of diversity in sexual orientation resulted in

the removal of homosexuality from the list of mental diseases by the

American Psychiatric Association in 1973. 9 Psychiatric News | (1974).

Other professional health organizations soon followed suit, some

calling for legal and social reform to address anti-gay discrimination.

See Resolutions of the American Psychiatric Association (1973, 1974),

the Association for Advancement of Behavioral Therapy (1974), the

American Psychological Association (1975), the American Medical

Association (1975), and the American Public Health Association

(1975).

8 The following churches and religious organizations have debated

and endorsed resolutions calling ‘or civil rights protection against

employment discrimination on the basis of sexual orientation: the

Lutheran Church of America, the Methodist General Conference, the

Presbyterian Church (U.S.A.), the Society of Friends, the Episcopal

Church, the American Baptists, the Unitarian Universalist Church,

and the National Council of Churches. Other religious groups taking a

similar stand include: The National Federation of Priests Councils (the

largest association of Roman Catholic priests in the United States), the

American Catholic Bishops, the Central Conference of American

Rabbis, and the American Jewish Committee.

9 While all individuals are harmed by this kind of governmental

censorship, gay people are hurt twice—first by its skewing of public

debate on an issue of vital importance to them, and, again, by its

invasion of their private lives. Gay people suffer when forbidden to

meet, talk, and share their thoughts and beliefs openly and freely,

consistent with the rights of others. Just as protected speech “conveys

not only ideas capable of relatively precise, detached explication, but

otherwise inexpressible emotions as well,” so speech about homosexu-

12

B) Speech about homosexuality does not fall within any of

the narrow categories of unprotected speech.

Clearly, speech about homosexuality does not necessarily, or

indeed ordinarily, fall within any category of speech held by

this Court to be excluded from the protection of the First

Amendment. When speech about homosexuality constitutes

defamation, obscenity, or “fighting words,” such expression

may be prohibited because these categories of speech fall

outside the protection of the First Amendment. Any fortuitous

content involving homosexuality, however, is irrelevant.

Notwithstanding appellant’s claim, public speech about ho-

mosexuality simply does not constitute incitement to the com-

mission of homosexual acts. This principle has been

recognized, for example, by the numerous courts that have

upheld the right of gay student groups to organize and be

granted formal recognition by their respective universities. Gay

Student Services v. Texas A. & M. University, 737 F.2d 1317

(Sth Cir. 1984), appeal filed, Oct. 31, 1984; Gay Activists

Alliance v. Board of Regents of University of Oklahoma, 638

P.2d 1116 (Okla. Sup. Ct. 1981); Student Coalition for Gay

Rights v. Austin Peay State University, 477 F. Supp. 1267

(M.D. Tenn. 1979); Gay Lib v. University of Missouri, 558

F.2d 848 (8th Cir. 1977), cert. denied sub nom., Ratchford v.

Gay Lib, 434 U.S. 1080 (1978); Gay Alliance of Students v.

Matthews, 544 F.2d 162 (4th Cir. 1976); Bonner, 509 F.2d 652;

Wood v. Davison, 351 F. Supp. 543 (N.D. Ga. 1972). This right

has been upheld even in states where homosexual acts are still

illegal. Gay Lib v. University of Missouri, 558 F.2d 848; Gay

Alliance of Students v. Matthews, 544 F.2d 162; Wood v.

Davison, 351 F. Supp. 543.

ality is essential in order that gay people share in “the premise of

individual dignity and choice upon which our political system rests.”

Cohen, 403 U.S. at 24, 26. The “freedom to think as you will and to

speak as you think” is as vital to gay citizens as it is to all Americans,

not merely for self-government, but for sense of self. Whitney v.

California, 274 U.S. 357, 375 (1927) (Brandeis, J., joined by Holmes,

J., concurring).

IS tT a

13

These courts have acknowledged that such protected speech

and association, often for the purpose of political advocacy or

social exchange, may not be presumed to involve sexual activ-

ity, let alone solicitation.'® Indeed, this kind of speech and

association is precisely what free people are entitled to do, and

what a free society rejoices in their doing.

The Oklahoma statute, however, turns this constitutional

principle on its head, making the subject matter of the speech,

and not, for example, any asserted obscenity or libel, the

grounds for censorship and punishment. The statute seeks to

smother all but the most negative treatment of gay-related

themes, casting an impermissible “pall of orthodoxy” over

discussions of homosexuality by teachers and would-be

teachers in any Oklahoma forum. See, e.g., Keyishian v.

Board of Regents, 385 U.S. 589, 603 (1967).

Appellant seeks to justify this facially evident violation of

the First Amendment by minimizing or dismissing the sweep of

the statute, the number of those affected by it, and the

importance of speech about homosexuality itself. Appellant

thus contends that the statute should be seen as “very narrow,”

reaching nothing but speech directly inciting “criminal homo-

sexual sodomy” in a manner likely to come to the attention of

students (Brief at 33)."'

10 ‘The principle that advocacy of the repeal of a criminal law does not

constitute unprotected incitement to imminent lawless action was

firmly established in Brandenburg v. Ohio, 395 U.S. 444 (1969), and

Hess v. Indiana, 414 U.S. 105 (1973). It was for the purpose of

reaffirming that principle and applying it to advocacy of the repeal of

sodomy laws that the majority opinion below cited these cases. NGTF

v. Board of Education, 729 F.2d 1270, 1274 (10th Cir. 1984). Appellant

and its amici thus err in their contention that the Tenth Circuit relied

exclusively and inappropriately on the Brandenburg test.

11 Appellant relies on the dissent below and its polemic conclusion that

speech on homosexuality automatically “involve[s] advocacy of a

crime malum in se to school children by a school teacher.” 729 F.2d at

1277 (Barnett, J., dissenting). Both the appellant and the dissent thus

play on the fears of a teacher’s potential sexual exploitation of children

as a means of obscuring the real effect and sweep of the statute.

14

In fact, the statute is not confined to in-class speech or a

teacher’s possible solicitation of sex with students, each dealt

with adequately by other Oklahoma statutes. This is not a law

narrowly tailored to prevent inappropriate sexual advances;

rather, this is a regulation of speech outside the school in any

forum, by any teacher or would-be teacher, on matters of

public importance to all and of great personal significance to

many.

C) The Oklahoma statute unconstitutionally deprives

teachers of their protected right to speak about homosex-

uality.

Teachers have a right to voice their opinions on matters of

public concern, including homosexuality, without fear of dis-

missal or other punitive measures. Although the First Amend-

ment permits a state to regulate speech by its public school

teachers somewhat more than speech by its citizenry in general,

restrictions on speech by teachers must nevertheless meet

stringent constitutional standards. Pickering v. Board of Edu-

cation, 391 U.S. 563 (1968). States have a legitimate interest in

restricting only that speech by teachers which causes a substan-

tial and material disruption in the operation of the school.

Tinker v. Des Moines Independent Community School Dis-

trict, 393 U.S. 503, 737-38 (1969); see also, Acanfora, 491 F.2d

at 500-01 (junior high school teacher’s public speech about

homosexuality is protected under the First Amendment);

Aumiller v. University of Delaware, 434 F. Supp. 1273, 1312

(D. Del. 1977) (First Amendment protects teacher’s right to

speak publicly on homosexuality).

Appellant and its amici would have this Court judge this

statute by a standard never before recognized in First Amend-

ment jurisprudence. They urge this Court to create a per se rule

that speech about homosexuality by a teacher — even outside

the school — is automatically disruptive of the school’s opera-

tions and therefore devoid of First Amendment protection.

They thus invert the requirement, laid down by this Court, that

15

a teacher’s expression be regulated not for its content, but for

its actual consequences. '”

That the subject matter of a teacher’s speech implicates

homosexuality does not justify the abandonment of this pro-

tective standard in favor of a state-mandated silence or censor-

ship. Indeed, such a departure from the balance carefully

struck in Pickering and Tinker subverts not only teachers’

rights to speak freely but also the First Amendment values that

their expression signifies for all citizens. The decision of the

Tenth Circuit stands within the shelter erected by this Court to

secure the right of teachers to speak their minds on controver-

sial issues. This Court should affirm that decision and the right

of free speech it protects.

12 As this Court held in Tinker, “(U)ndifferentiated fear or apprehen-

sion of disturbance is not enough to overcome the right to freedom of

expression.” 393 U.S. at 508. “[A] mere desire to avoid . . . discom-

fort and unpleasantness” is also insufficient absent a showing of

material and substantial disruption. /d. at 509.

16

POINT Il

THE SWEEPING PROSCRIPTIONS OF THE

OKLAHOMA STATUTE CHILL PROTECTED SPEECH.

The Oklahoma statute, by allowing punishment of teachers

for “advocating . . . promoting or encouraging public and

private homosexual activity,” takes aim at protected expression

in the broadest terms possible. Although the statute inciden-

tally bans some speech concerning sex acts, it also restricts,

both directly and indirectly, all but the most hostile expression

about homosexuality. Because the statute “does not aim specif-

ically at evils within the allowable area of state control, but, on

the contrary, sweeps within its ambit other activities that in

ordinary circumstances constitute an exercise of freedom of

speech,” Thornhill v. Alabama, 310 U.S. 88, 97 (1940), it chills

protected speech and therefore must fall.

The very existence of such an overbroad statute chills the

exercise of protected rights because individuals limit their

speech to that which is unquestionably safe. Dombrowski v.

Pfister, 380 U.S. 479 (1965); Keyishian v. Board of Regents,

385 U.S. 589. The Oklahoma statute’s proscriptions on speech

are sO vague and so open-ended that a reasonable teacher or

would-be teacher wishing to talk about the sensitive subject of

homosexuality has to nothing is safe.

Appellant disingenuously that the statute was not

designed to affect speech on homosexuality generally, and that

a teacher would not be dismissed for anything but actual

advocacy of imminent sodomy. The Tenth Circuit correctly

rejected this argument, noting that the statute would permit

dismissal of a teacher who testifies before the state legislature

urging repeal of the state sodomy law. 729 F.2d at 1274. In

fact, the statute goes even further than that. It contains no

limiting standards and covers an almost limitless range of

expression, burdening all speech on gay issues and involvement

in gay organizations, whether by gay or non-gay individuals.

17

Any teacher or prospective teacher who, for example, part)-

cipates in a panel discussion on the rights of gay people, wears

a button on the street urging the repeal of the Oklahoma

sodomy statute, or appears in a demonstration for gay civil

rights — all activities outside the classroom — certainly could

be said to be “advocating,” “promoting,” or “encouraging”

homosexual activity. Indeed, even membership in the plaintiff

organization, which, among other things, lobbies for repeal of

State sodomy statutes, could well be seen as encouraging or

promoting homosexual activity.

Under the statute, a teacher who acts as a faculty sponsor

for a gay student organization would have good reason to fear

dismissal for such action, even though the right of gay students

to meet ur school premises is guaranteed by The Equal Access

Act. Pub. L. No. 98-377 (Aug. 11, 1984). Teachers or school

aides who are active members in gay religious organizations’

or denominations sympathetic to homosexuality, such as the

Metropolitan Community Church, might well fear loss of their

jobs as a result of such membership. An individual currently

enrolled in a teacher training program at an Oklahoma univer-

sity might not be willing to join a gay student group there,

although such organizational membership is protected under

the First Amendment. Thus, the statute compels teachers and

many other Oklahoma residents to avoid legitimate, constitu-

tionally protected activities.

13 There are many gay religious groups, often recognized by, and

affiliated with, the parent denominations. A partial listing includes the

following: Affirmation (Mormon), Affirmation (United Methodists),

American Baptists Concerned, Brethren Mennonite Council for Gay

Concerns, Dignity (Catholic), Evangelicals Concerned, Friends Com-

mittee on Gay Concerns (Quaker), Gay People in Christian Science,

Integrity (Episcopal), Lutherans Concerned, Orion Fellowship Ailiance

(Seventh-Day Adventist), Presbyterians for Lesbian and Gay Con-

cerns, Seventh-Day Adventist Kinship, Unitarian Universal Office of

Lesbian Concerns, Unitarian Universalist Gay Concerns, United

Church Coalition for Lesbian and Gay Concerns (United Church of

Christ), United Lesbian and Gay Christian Scientists, Congregation

Beth Simchat Torah (Jewish).

Appellant claims, nevertheless, that a teacher would not

necessarily be dismissed under the statute for sponsoring a gay

[ijt would be a bold teacher who would not stay as

far as possible from utterances or acts which might

jeopardize his living by enmeshing him in this intri-

cate machinery. The uncertainty as to the utterances

and acts proscribed increases that caution in “those

who believe the written law means what it says.”

Keyishian, 385 U.S. at 601 (quoting Baggett v. Bullitt, 377

U.S. 360, 374 (1964)).

Furthermore, even if some teachers would ultimately not be

terminated for their speech about homosexuality, the mere

threat of a hearing, and its attendant stigma, is as great a

deterrent to the exercise of constitutional rights as actual

dismissal." NAACP v. Button, 371 U.S. at 433. “Freedoms

these are protected not only against heavy-handed

frontal attack, but also from being stifled by more subtle

governmental interfeience.” Bates v. City of Little Rock, 361

U.S. 516, 523 (1960).

Appellant insinuates that any claims of a chilling effect are

based on mere speculation. However, it is characteristic of a

14 The statute authorizes a hearing without any showing of actual

disruption. Thus, a hearing could be triggered by the unsubstantiated

allegation of one person who learns of, or suspects, a teacher's

homosexuality or positive attitude toward homosexuality. As a result, a

school board ironically could expose expression or conduct that the

teacher has been : areful not to publicize. Such threatened investigation

and exposure was the very tool used in the purges of gay people and

other “un-American” individuals from government employment in the

1950's. Scholz, Out of the Closet, Out of a Job: Due Process in

Teacher Disqualifications, 6 Hastings Const. L.Q. 663, 686 (1979).

19

chilling effect that those individuals whose speech and expres-

sion have been restricted cannot be identified.

Chilling effect is, by its very nature, difficult to

establish in concrete and quantitative terms; the

absence of any direct actions against individuals

assertedly subject to a chill can be viewed as much as

proof of the success of the chill as of evidence of the

absence of any need for concern.

Community Service Broadcasting v. FCC, 593 F.2d 1102, 1118

(D.C. Cir. 1978). See also, Shelton v. Tucker, 364 U.S. 479, 487

(1960).

The chilling effect of this statute is both real and substantial.

It not only silences those who are already employed in the

20

POINT Ill

NO ASSERTED STATE INTEREST WARRANTS SUCH

A SWEEPING CURTAILMENT OF PROTECTED

SPEECH ABOUT HOMOSEXUALITY.

In its efforts to save Oklahoma’s assault on protected -

speech, appellant fails to make the constitutionally required

showing of disruption, relying instead on a stigmatizing and

false portrayal of homosexuality and its purported dangers to

schoolchildren.’ Unable to show any real harm, appellant

exploits the unfounded and irrational notion, resulting from

myth, ignorance, and prejudice, that homosexuality is trans-

mitted to children by gay teachers.'*

This Court should reject such unsubstantiated pandering to

fear and emotion as a substitute for reason and solicitude for

important constitutional rights. Without more,

[flear of serious injury cannot alone justi‘ y suppres-

sion of free speech and assembly. Men feared witches

and burned women. It is the function of speech to

free men from the bondage of irrational fears.

Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J.,

joined by Holmes, J. concurring).

1S Amicus Washington Legal Foundation suggests that the statute is

justifiable because it prevents the transmission of acquired immune

deficiency syndrome (AIDS) (Brief at 12-13). This is both incorrect and

offensive, and is typical of the reliance of appellant and various amici

on prejudice and fear in order to defend an indefensible restriction on

protected public speech.

16. Indeed, this statute does not per se prohibit the employment of gay

teachers. In fact, such a statute would be unconstitutional as dis-

crimination based on homosexual status. See, ¢.g., Burton v. Cascade

School District, 353 F. Supp. 255 (D. Or. 1973), aff'd per curiam, 512

F.2d 850 (9th Cir.), cert. denied, 423 U.S. 839 (1975); Norton v. Macy,

417 F.2d 1161 (D.C. Cir. 1969); Morrison v. State Board of Education,

1 Cal. 3d 214 (1969). See also, Robinson v. California, 370 U.S. 660

665-67 (1962).

21

Gay teachers do not make children homosexual. The intima-

tion that gay teachers have a deleterious effect on the sexual

development of schoolchildren, let alone proselytize or advo-

cate criminal sodomy, has been consistently refuted.'’ Simply

put, there is no scientific evidence which supports a “conta-

gion” theory of homosexual development.

Whatever the origins of homosexuality — whether biologi-

cal, cultural, psychological, or a combination thereof — the

studies show conclusively that it is not a matter of imitation.

See, e.g., Weinberg, Bell and Hammersmith, Sexual Prefer-

ence: Its Development in Men and Women (1983); Marmor,

Homosexual Behavior: A Modern Reappraisal (1980); Na-

tional Institute of Mental Health Task Force on Homosexual-

ity, Final Report and Background Papers (1972). As one

authority notes: “If it were merely a matter of imitation, then

there would be little or no homosexuality, because for centuries

almost all people who are homosexual have come from hetero-

sexual families.” Calderone and Johnson, The Family Book

About Sexuality 114.'* Moreover, one of the leading scientific

experts on the subject of gay sexuality has expressly rejected

ey a hg mg Final Report of Task Force on

18 Studies conducted of parent-child relationships have demonstrated

Heterosexual and Homosexual Mothers and Their Children (Research

Study funded by the National Institute of Mental Health (1982));

Green, Sexual Identities of 37 Children Raised by Homosexual or

Transsexual Parents, 135 Am. J. Psychiatry 6 (1978).

22

the imitation theory, concluding that gay teachers do not

influence the sexual orientation of their students."

The anti-gay prejudice relied on by appellant has beeen

repudiated by major educational organizations.”” Many

groups, including the American Federation of Teachers, the

United Federation of Teachers, the National Education Asso-

ciation, the National Council of Teachers of English, and the

Washington, D.C. and New York Boards of Education, have

formally disavowed discrimination against gay and lesbian

teachers. These organizations have declared that the relevant

qualification for teachers is their performance on the job, not

their sexual orientation or the expression of their personal

views outside the classroom. This conforms with the law as

expressed in such cases as Tinker and Pickering.

The Oklahoma statute relies on, indeed, promotes, discredi-

ted and harmful myths and ste.eotypes about gay people and

teachers. It chills their speech, burdens their lives and liveli-

hood, and prevents the exchange of ideas and self-expression

which the First Amendment so clearly safeguards. By imposing

on its citizens a taboo of silence and an atmosphere of

accusation when legitimate speech about homosexuality is

attempted, Oklahoma has violated the constitutional protec-

tions for thought and speech which keep this society open and

its people free.

19 “People don't believe that a child is heterosexual because the teacher

is... . Do they believe a child in Catholic school will become

celibate because the nuns are?” Interview of Martin Weinberg, Boston

Globe, Feb. 20, 1982, at 16. In 1978, Ronald Reagan made a similar

observation in opposition to a proposed Cali! ornia measure virtually

identical to the Oklahoma statute. Two /il-Advised California Trends,

Los Angeles Herald-Examiner, Nov. |, 1978, at a-19.

20 Moreover, no state code expressly bars gay and lesbian individuals

from the teaching profession. Scholz, supra, at 692.

23

CONCLUSION

For the foregoing reasons, the decision of the United States

Court of Appeals for the Tenth Circuit should be affirmed.

Respectfully submitted,

LAMBDA LEGAL DEFENSE AND

EDUCATION FUND, INC.

132 West 43rd Street

New York, New York 10036

(212) 944-9488

By: Abby R. Rubenfeld”

December 17, 1984

* Member of the Bar of this Court.

24

Pursuant to Rule 28.5(b) of the Rules of the Supreme Court

of the United States, the undersigned member of the Bar of the

Supreme Court of the United States hereby certifies that three

(3) copies of the preceding Amicus Curiae Brief on Behalf of

the Appellee by Lambda Legal Defense and Education Fund,

Inc., were mailed on December 17, 1984, at the U.S. Post

Office in New York City, with first class postage prepaid, to

counsel of record for the parties at the addresses listed below,

as required by Rule 28.3 of the Rules of the Supreme Court.

Larry Lewis, Esq.

4001 N. Lincoln, Suite 410

Oklahoma City, OK 73105

Attorney for the Appellant

Professor Laurence H. Tribe

Griswold Hall 307

Harvard University Law School

Cambridge, MA 02138

Attorney for the Appellee

Dated this 17th day of December, 1984

(212) 944-9488