Published Online: September 28, 1983

Anti-Homosexual Law in Oklahoma Is Challenged in U.S. Appeals Court

The constitutionality of an Oklahoma law that allows schools to dismiss employees for engaging in or advocating certain homosexual activities is being tested in a suit brought last year by a national gay-rights group. The law is the only one of its kind in the country.

Gay-rights leaders said they consider the case a major test of whether states can restrict the rights of homosexuals. The Oklahoma City Board of Education was named as the defendant in the suit.

Both sides offered arguments in the U.S. Court of Appeals for the Tenth Circuit this month about the intent and significance of the law, which permits schools to suspend or dismiss teachers who engage in "public homosexual conduct."

The National Gay Task Force charges that the law is "facially unconstitutional" because it violates the rights of teachers, substitute teachers, and teachers' aides to free speech, equal protection, privacy, and the free exercise of religion. The organization also says the law is "vague and overbroad."

The group contends that the law could result in the dismissal of any employee who publicly acknowledges his or her homosexuality, or who defends the rights of homosexuals. The school board counters that the law only prohibits employees from engaging in or advocating public acts of homosexuality.

The U.S. District Court for the Western District of Oklahoma last year rejected all of the arguments of the task force, concluding that the plaintiffs' "fears are unwarranted." The court said the state's case law provides ample protection of individuals' rights.

The appeals court is expected to rule in the case within the next nine months. The task force says it will take the case to the U.S. Supreme Court if it loses in the circuit court. The school board has not indicated whether it would appeal a decision.

Representatives of both sides in the case said last week that they did not know of any teacher in Oklahoma who had been dismissed or disciplined because of homosexual conduct or advocacy.

Lawyers for the school board said they would welcome court revisions of the law. Eric J. Groves, who argued the case in district court, said "one or two phrases" in the statute "probably affront the First Amendment." Lawrence Lewis, who argued the case in the appeals court, said the court's "job" is to make appropriate revisions.

Mr. Groves, who said he was sympathetic to the claims of the task force, had anticipated that the federal district judge would eliminate what the lawyer termed "obnoxious" language in the law. A clause in the law gives the courts the right to rewrite it, he said, but the trial-court judge did not choose to do so.

Timothy J. Sweeney, the executive direcinued on Page X


Oklahoma Anti-Homosexual Law Is Tested

Continued from Page 5


tor of the Lambda Legal Defense Fund in New York, said that 22 states and the District of Columbia have enacted laws that "attach a certain criminal status" to homosexuality, but only Oklahoma has a law that affects education directly.

Mr. Sweeney said there are no data on how many school employees may have been dismissed or disciplined because of suspected homosexual activity. He said he was aware of legal cases involving homosexual teachers' rights in New Jersey, Ohio, and Washington State.

A spokesman for the Gay Rights National Lobby in Washington, D.C., said bills pending in the House of Representatives and the Senate would amend the Civil Rights Act of 1964 to prohibit discrimination based on "sexual orientation."

Spokesmen for the National Education Association and the American Federation of Teachers said the organizations have sometimes defended the rights of homosexual teachers in court.

Neither teachers' union has been involved in the Oklahoma case, however.

Martha L. Ware, a program director for the nea's office of human and civil rights, said the union had been approached about the case by the task force but declined to offer financial assistance because a specific teacher had not been wronged.

The disputed law, enacted overwhelmingly by the state legislature in 1980 after a lobbying appearance by Anita Bryant, says teachers who have "engaged in public homosexual conduct" may be refused employment, dismissed, or suspended if they are "rendered unfit ... because of such conduct or activity."

William B. Rogers, a member of the task force who is also its lawyer, said the Oklahoma law's wording is so vague that it invites reprisals against any person who defends the rights of homosexuals. He said his court argument alone would be a sufficient reason for a school district to discipline him.

Despite the school board's claim that the statute bans only public sexual activity, Mr. Rogers said, the law could have a "chilling" effect on the free speech of all homosexuals.

Mr. Sweeney of the defense fund, which filed a brief in the case, agreed. "There are already laws on the books that prohibit public sex acts" of both heterosexuals and ho-mosexuals, he said. "What this does is single out homosexuals."

Mr. Rogers took issue with Judge Luther B. Eubanks of the federal district court, who, noting that state law permits schools to dismiss or discipline "unfit" employees, said public knowledge of a teacher's homosexuality could cause disruption in the school that would make a teacher unfit to perform his duties.

"I call that judicial leapfrogging," Mr. Rogers said. If homosexuals are held responsible for the disruption that disclosure of their private habits may create, he said, "it tells you that you can't speak freely."

The judge himself offered evidence of the claim that homosexuals' right to free speech is violated by the law, Mr. Rogers maintained. He noted that, in an early hearing on the case, the judge said he was "certain that if a teacher in Oklahoma City announced that he were a homosexual, he would be fired."

Mr. Rogers also said the gay-rights organization challenged the law ''facially"--without challenging the law's effect in a specific situation--because "teachers were scared to death" about the way they would be treated in the community if they took part in the case.

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