Arizona lawmakers took action Wednesday to repeal provisions of the controversial “no promo homo” law rather than try to defend them in court.
On a 55-5 margin the House of Representatives voted to strip three provisions from a 1991 law that governs how schools can teach about AIDS and HIV.
One section makes illegal any course that “promotes a homosexual lifestyle.” A second forbids anything that “portrays homosexuality as a positive alternative life-style.”
And the same law also says teachers cannot suggest that “some methods of sex are safe methods of homosexual sex.” But there is no similar bar on teaching “safe” heterosexual sex.
The action comes less than 24 hours after Attorney General Mark Brnovich told lawmakers he did not intend to mount a defense to the lawsuit filed in federal court last month by Lambda Legal and Educational Foundation on behalf of Equality Arizona and two students who are gay.
That lawsuit charged the state statute “facially discriminates against non-heterosexual students on the basis of sexual orientation and places them in an expressly disfavored class.”
Arizona schools chief Kathy Hoffman, who called for repeal of the law earlier this year in her State of Education speech, said she had no interest in trying to defend it. And the state Board of Education, also named as a defendant, is set to meet Monday to choose whether its members want to try to defend the law.
Brnovich, in his letter to legislative leaders Tuesday, told them they are free to take on the legal fight. Instead, the decision was made to repeal it.
Rep. T.J. Shope, R-Coolidge, who sponsored the amendment, said that not only resolves the legal issues but “allows the state to move forward and save taxpayer money that would otherwise go to paying lawyers.”
None of the five lawmakers who voted against SB 1346 explained their decisions during the vote.
But Rep. Mark Finchem, R-Oro Valley, told Capitol Media Services afterwards it was a matter of representative democracy.
“My constituents communicated to me they did not want me voting for this,” he said.
Rep. Bret Roberts, R-Maricopa, who represents the same district, did not respond to a request for an explanation.
Rep. Anthony Kern, R-Glendale, said his vote has less to do with the proposed changes than what already is in the law now about teaching kids about AIDS and HIV.
“Any topic of sexuality amongst kindergartners, first graders, second graders is, to me, inappropriate,” he told Capitol Media Services.
The statute, both before and after Wednesday’s vote, permits schools to offer instruction as early as kindergarten as long as it is “appropriate to the grade level in which it is offered.”
It also has to be “medically accurate,” promote abstinence, discourage drug abuse and “dispel myths” about how HIV can be spread.
Others voting against the measure, all Republicans, were John Fillmore of Apache Junction and Warren Petersen of Gilbert.
But several of the supporters, some of whom are gay, spoke out on the floor and said Wednesday’s vote is nothing short of life-changing.
Rep. Daniel Hernandez, D-Tucson, who was 1 year old when the law took effect, spoke of going through the Sunnyside school system back when a diagnosis of AIDS or HIV was “a death sentence.”
“The struggles and the challenges I went through in our public schools, where I was labeled as ‘alternative,’ labeled as ‘an other,’ will be going away today,” he told colleagues.
“The reality is that for more than 28 years students in our schools have been forced to believe that being LBGT is wrong, that it’s shameful, that they are less than their classmates sitting right next to them just because of who they are and who they love,” said Rep. Andres Cano, D-Tucson. He said he experienced the effects of the law — and its message about gays — “every time I walked into my classroom.”
And Rep. César Chávez, D-Phoenix, spoke of coming out to his Catholic parents when he was 15. He spoke of being pleased, not only because of their acceptance but also that he had the opportunity to tell them.
“Unfortunately, as we’ve seen throughout many years, there have been many individuals who do not have that same opportunity and either hide or take their own life,” Chavez said.
Addressing those who opposed the repeal, Chavez said he hopes “we can sit down as friends, as colleagues, to be able to talk about the realities in our community.”
It wasn’t just Shope — and the legislative leaders who backed the repeal — who concluded that the 1991 statute was probably legally indefensible.
Earlier Wednesday, Cathi Herrod, president of the Center for Arizona Policy, said she agreed with the decision by lawmakers that repeal is probably the way to go.
“There’s no purpose in the state going through years of litigation over these contested provisions,” she told Capitol Media Services.
That is a major departure for Herrod whose organization lobbies on behalf of what it says are “family values” and marriage, and which unsuccessfully fought against allowing same-sex marriage. After the lawsuit was filed last month, Herrod said the challenged provisions were important for “the safety of our children.”
So what changed?
“I had not reviewed the lawsuit,” said Herrod, who is an attorney.
Anyway, Herrod said, it’s not like the legislation will leave those teaching about HIV and AIDS free to tell students whatever they want.
“The intent of the law can be carried out without the contested provisions,” she said. “It still has to be medically accurate, age-appropriate.”
And Herrod said the specifics of the curriculum would still be within the purview of local school districts, with parental input.
Herrod’s statement probably provided political cover for some of the more socially conservative members of the House to vote for repeal. The measure now goes to the Senate.
If the repeal becomes law, that still leaves six other states with similar laws, according to the Gay, Lesbian & Straight Education Network.
In Alabama, for example, sex education classes “must emphasize ... that homosexuality is not a lifestyle acceptable to the general public.” And South Carolina laws on health education bar any discussion of “alternate sexual lifestyles ... except in the context of instruction concerning sexually transmitted diseases.”
