"Don't Say Gay": Tennessee Schools Could Ban Gay Talk

And yet it is you who try and rewrite history, not I. Though conservatives today have accepted women's/minorities suffrage the such acceptance was not part of conservativism at the time.

Indeed conservaties are on the trailing edge of society... we see that even today with the gay rights issue, where conservatives are steadily falling behind the rest of society.

Don't worry though... I'm sure that in twenty to thirty years, after all but the most extreme fringe agrees that homosexuals should be treated equally, that there will be conservatives to step forward and claim that equal right for homosexuals was a conservative issue.

I think it is pretty clear based on the constitutional decisions that government cannot restrict individual rights that are centered on personal moral decisions, which also means invalidating laws that single out groups for differential treatment. This is neither liberal nor conservative, but more libertarian if anything. The issue for many social conservatives is the perception that treating sexual orientation like any other protected aspect such as gender, religion, race , or ethnicity is perceived as a liberal agenda item. However, these protections also apply to religiously conservative individuals, meaning they have the same protections. SCOTUS through case law is identifying those things which are out of bounds for differential treatment.

Going back to original topic, TN is simply going too far. It would be reasonable to defund specific programs and to direct money in ways that indirectly shaped policy. For example, providing money for abstinence only sex ed is not discriminatory and could survive legal challenge. However, by explicitly singling out sexual orientation as a taboo topic in school, and in effect, requiring a form of discrimination through exclusion, the proposed law won't survive a constitutionality challenge.

Again, the TN law is much worse than even CA's prop 8.

The individual rights in the constitution are specifically intended to prevent the tyranny of the majority. SCOTUS has broadened rather than narrowed individual rights over time. Sexual orientation has become an explicit addition to individual protections with Lawrence v. Texas being the biggest example so far. Prior to Lawrence v. Texas, gay people engaged in private consensual relations were committing felonies according to many state laws, as were many straight people engaged in sex acts outside of typical missionary intercourse. SCOTUS has said that consensual adult sexual relations are a private matter in which government cannot pass judgment regardless of the cultural majority opinion.

The majority of people are not gay, the majority of people do not engage in what used to be criminal sodomy, and the majority of people will at some point get married in a heterosexual relationship at least once. However, the majority doesn't get the right to say to everyone else that they have to be treated differently under the law.

The one way to bypass SCOTUS would be for the majority to actually amend the constitution clarifying or limiting individual rights. However, it is extremely unlikely that a definition of marriage or intentional limits on what are considered gay rights issues would ever survive the constitutional amendment process. It is possible as was proven during prohibition, but it is not likely, Prohibition was an important lesson for the country in showing that baking personal morality into the constitution can have many unintended and negative consequences.

TN is essentially telling teachers that even discussing homosexuality is an offense worthy of termination of employment. This seems to violate the 14th amendment by discriminating through specific and targeted exclusion, and it seems to violate the 1st amendment rights of teachers. TN would have to show that discussing homosexuality in school actually harmed children. The "measure of harm" in this instance would be arbitrary and very individual, meaning it is not legally defensible.

There are some natural cultural conflicts when it comes to homosexuality. Conservative religions teach their children that homosexuality is morally bad, and allowing teachers to discuss homosexuality in school with a focus on tolerance violates those beliefs. However, there are conservative forms of the three abrahamic faiths that teach a limited role for women, that our schools and government actively tells people is morally wrong and illegal. We are currently in a state of cultural transition, where most people accept that any form of gender discrimination is "wrong," but calling gays "bad" is somehow less wrong.

Individual rights expand when a group chooses to complain. Many of the laws (actual and proposed) restricting rights based on sexual orientation are a form of cultural backlash in reaction to an overall national trend toward more tolerance of homosexuality.

States continue to try to pass laws in spite of case law that tells them they won't stand up to legal challenge. The recent group of laws opening the door for creationism in the science classroom are an example. In those states, the cultural majority supports limiting science based on those topics that conflict with some religious beliefs. However, like the TN law, these other laws won't pass constitutional muster.

Our government from its bicameral legislature and republican form of government to its checks and balances across branches is set up to prevent the cultural majority from overwhelming the rights of minorities, whether these minorities are based on race or sexual orientation. State governments don't have the ability to overrule the constitution.