By Deacon Mike
Manno
(The Wanderer) – The Iowa Legislature
during its last session passed Senate File 496 which required schools in the
state to do three things: First, remove from public school libraries books that
contain descriptions or visual depictions of a “sex act”; second it prohibited
school districts or teachers from providing programs, the promotion and
instruction to students through grade six on “gender identity” and “sexual
orientation”, and third it required schools to notify parents if their child
requests an accommodation relating to gender identity.
SF 496 was passed in April and on May
26 Governor Kim Reynolds signed it into law. The aim of the legislation and of
the governor was to protect younger children (grade six and below) from
material that was not age appropriate. It needs to be noted that what was
referred to as a “book ban” neither banned any book – they could still be
purchased in any bookstore – nor kept them from those in seventh grade or
above.
Naturally, the law was challenged in
two lawsuits, one by several groups of the usual suspects, including 10 parents
on behalf of eight of their minor children, and the other by several book
publishers and their authors who marketed their work to students and teachers.
The cases were consolidated for hearing.
On December 29, U.S. District Court
Judge Stephen H. Locher, a Biden appointee to the court, granted the plaintiffs
requests and issued a preliminary injunction prohibiting the state from
enforcing SF 496 except for one inconsequential point which the court denied as
moot since the child-plaintiff parents all knew of his circumstances and he was
not then affected by the law and thus had no standing. In all other respects SF 496 was put on hold
to at least the conclusion of the litigation.
The judge, in his 46-page order
granting the injunction, found the law to be both overbroad and too vague.
As to the law being overbroad, the
judge said: “Senate File 496, on its face, does not permit school officials to
take context into account when determining whether a book is ‘age-appropriate’
or contains a ‘sex act.’ Meaning: the law prohibits such books even if the ‘sex
act’ was, say, an impetus for legislation (e.g., books describing the history
of laws geared toward preventing sexual assault), important for historical reasons
(such as ‘sex acts’ that played a central role in political campaigns or served
as the basis for impeaching a sitting president), or played an important role
in an award-winning work of fiction like explaining a character’s emotional
development (as in the case of books written by some Plaintiffs here).”
He also added something which for me
was a disturbing comment: “The law also prohibits students from being involved
in deciding whether a book should be removed or not.” Remember, this part of
the law only applied to materials available to students up to sixth grade,
pre-teens, six to 12 year olds.
To the issue of vagueness, he pointed
to the terms “sexual orientation” and “gender identity” used in the law.
According to Judge Locher, they are used in a neutral manner. Thus, any
reference to them could also refer to a boy who identifies as a boy. Since
referring to him as a boy would designate his sexual identity it would run
afoul of the law.
“Similarly,” he wrote, “under the plain
language of the statute, it appears that a teacher cannot instruct students to
refer to the teacher as “Mr. _____” or “Miss______,” as this would be an
“instruction” that “relat[es] to” the teacher’s “gender identity,” which is a
verboten topic. It also appears to be impermissible for teachers to identify
historical figures or literary characters as being either male or female or use
masculine or feminine pronouns to refer to them, as any such discussion would,
again, amount to promotion or instruction that relates to the person’s gender
identity.”
Of course, none of that was the intent
of the law and, as the judge recounts the arguments, there appears to be no
legitimate concern (pre-textual perhaps) that the state or any of its
subdivisions would prosecute a teacher or school district over those matters.
Yet calling the law the “don’t say
anything” bill, the judge says, “The Court understands, of course, that this is likely not
what the Iowa Legislature was trying to accomplish when it passed Senate File
496. Indeed, the State Defendants and GLBT Youth Plaintiffs alike characterize
this interpretation of the law as ‘absurd,’ and both argue—for different
reasons—that the law is designed to prohibit discussion of homosexuality and
transgenderism.”
Citing case law, he wrote, “When a
plaintiff has shown a likely violation of his or her First Amendment rights,
the other requirements for obtaining a preliminary injunction are generally
deemed to have been satisfied. … The irreparable harm factor weighs squarely in
favor of imposing a preliminary injunction. It is well-established that ‘[t]he
loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.’”
If the issue is irreparable harm,
should the court have not weighted the harm that the plaintiffs might suffer by
seeking the books and materials elsewhere, against the harm the legislature was
trying to prevent: the indoctrination of innocent children on behalf of a
sexual minority without regard to the rights of the parents. It was mentioned
that parents do have the legal and constitutional right to control the
upbringing of their children, but then dropped. Considering the legislature
enacted SB 496 in defense of parental rights, and that nothing is banned (as
the liberals would have you believe) why was there no extended review of the
balance between parents, who have a superior right to their children than
teachers and book publishers?
If we can extend the logical result of
this opinion, what would the court do if the publisher was Playboy
magazine? Would this judge order pornography in elementary schools?
Of course, I suppose that if
drag-queen story hour is allowed in some schools nothing could really be
banned. Parents, now more than ever, stand up and fight for your kids.
(You can reach Mike at: DeaconMike@q.com and listen to him every weekend on Faith On Trial or podcast at https://iowacatholicradio.com/faith-on-trial/)
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