Democrats swallowed a bitter pill in 1991.
The minority party was desperate to pass a law mandating HIV and AIDS education in Arizona schools. Officials feared that federal funding for sexual education would dry up if state officials couldn’t show that state law required those courses.
Mandating HIV and AIDS education meant voting for the bill even with an amendment, offered by House Republicans, barring the promotion of a homosexual lifestyle and safe homosexual sex.
Sen. Lela Alston, a Phoenix Democrat who served in the chamber nearly three decades ago, voted for the bill. Lawmakers believed the underlying intent of the bill was too important not to pass, she said.
Democrats have spent the years since attempting to undo that provision, but have been stymied in the Republican-controlled House and Senate chambers at every turn.
A well-timed lawsuit and the combination of support from an unlikely pair – Superintendent of Public Instruction Kathy Hoffman, a Democrat, and Attorney General Mark Brnovich, a Republican – prompted GOP legislative leaders to react swiftly and meaningfully to repeal what one Democratic lawmaker called a “black mark” in Arizona law.
By the morning of April 11, less than two weeks after a lawsuit challenged the so-called “no promo homo” law as unconstitutional, representatives and senators had approved a bill to repeal it. The House easily approved it by a 55-5 vote, while the measure cleared the Senate by a 19-10 vote.
Gov. Doug Ducey signed it as quickly as he could, thanking lawmakers for a bipartisan and “common sense solution.”
Hoffman touched on a variety of topics in her first State of Education speech as superintendent, an address before the House Education Committee in February.
But it was a line dropped halfway through her speech that would set in motion the desire to finally repeal the law.
“A simple step we can take to help reduce discrimination and bullying for students is to repeal the “no promo homo” law,” Hoffman told the committee.
Rep. T.J. Shope, who was on the dais that day, credited Hoffman’s address for bringing the issue to his attention. The Coolidge Republican said he wasn’t personally aware of the controversial provision until Hoffman mentioned it and he made a point to research the law himself.
That gave Shope a foundation to sponsor an amendment on April 10 to repeal the law.
But it wasn’t until late March that the issue again arose in prominence. That’s when two gay rights organizations, the Lambda Legal Defense and Education Fund and National Center for Lesbian Rights, filed a lawsuit on behalf of Equality Arizona and two gay students in federal court challenging the “no promo homo” law as unconstitutional.
The 1991 law prohibits the promotion of a homosexual lifestyle and safe homosexual sex.
The measure was controversial even as it was being voted on in June 1991, when a “heated floor debate… pitted conservatives against the rest of the House,” according to Arizona Capitol Times archives.
The staunchest conservative Republicans may have opposed the measure, but it was ultimately approved with help from moderate Republicans and Democrats by a 32-22 vote in the House. The Senate then approved the changes as well, a decision Alston attributed to a desire to ensure Arizona was competitive when seeking federal grants for sexual education funding.
“We felt at that time that the overriding issue was the importance of getting the money for the HIV/AIDS education,” Alston said.
The suit challenging the law named Hoffman in her official capacity as superintendent and the state Board of Education. That provided Hoffman an avenue to once again speak out against the law, and she swiftly expressed her opposition to spending state resources to defend a law she opposed.
Richie Taylor, Hoffman’s communications director, said Hoffman’s office was surprised at how quickly all the pieces came together to repeal the law.
“It was one or two lines in her State of Education speech and it got the most press coverage, so we thought anything we could do to help move this along would be a good thing for us to do,” Taylor said.
Hoffman had drawn attention to an effort that historically fizzled at the Legislature, and she’d brought it to their doorstep. Democrats like Sen. Martin Quezada have made a near annual exercise of attempting to repeal the law.
Quezada, a Glendale Democrat, has sponsored such a bill for four consecutive years.
In a speech on the Senate floor April 11, Quezada credited the lawsuit and Brnovich for finally bringing this issue to the full attention of the Senate.
“We would not be here today if it were not a forced issue,” Quezada said.
An April 9 letter from the Solicitor General’s Office, declaring that Brnovich would not intervene and seek to defend the law, put the decision of defending the controversial provision solely in the hands of Republican legislative leaders.
That letter “broke the dam” at the Legislature, Taylor said.
Repealing the law had been an unpopular prospect before. Even in expressing support for its repeal, the Center for Arizona Policy, a powerful Christian lobbying group, argued the law was being misconstrued.
CAP President Cathi Herrod announced her support for repeal, but also criticized the lawsuit as reading more like a “political statement” than a legal argument.
Herrod said the most important part of the law, its primary intent, is that AIDS education is age appropriate and medically accurate.
“It’s noteworthy that the law requires parents be notified about AIDS instruction and also provides information about the curriculum, so a parent will have the opportunity to opt their students out of any AIDS instruction if they so choose,” Herrod said.
Sen. Eddie Farnsworth, R-Gilbert, said that the measure was never intended to be discriminatory, but was simply reflective of “the actual facts of HIV is disproportionately spread” in the gay community.
Taylor said efforts to downplay the significance of the “no promo homo” language in statute miss the point.
“On the ground, in the classroom, and among students and teachers, this law had an effect of silencing and marginalizing LGBTQ students and families because people misunderstood what the law meant,” Taylor said. “Anyone who disagrees with that is not looking at reality.”
WHAT IS JUSTICE?
That’s why it was important for Quezada that the Legislature repeal the law, rather than defend it in a losing battle in court.
“If the lawsuit played itself out, they would’ve found it unconstitutional, but the law would’ve stayed there. It would’ve been a black mark on our statutes,” Quezada said.
Were it not for Brnovich, the law may still be on the books today, he added.
The letter from Solicitor General Oramel H. Skinner made waves at the Capitol declaring that the Attorney General’s Office won’t independently intervene in the “no promo homo” lawsuit.
Brnovich spokesman Ryan Anderson said the letter “speaks for itself in terms of our calculation as to whether or not the state would prevail.” But for Brnovich, the calculus isn’t simply whether or not the state would triumph in court.
“When you’re the attorney general in the state of Arizona, representing the people of Arizona, you don’t necessarily measure success in terms of wins or losses,” Anderson said. “I think there’s a broader question of, what is justice? What is the right thing to do?”
The letter from the solicitor general helped spark an appetite at the Legislature to repeal the law, rather than defend it – following the previous announcement from Hoffman, who has no appetite to defend the law, and a possible vote by the Board of Education to back off as a defendant in the case.
Senate President Karen Fann, a Prescott Republican, said Brnovich must walk a fine line between advising and dictating to ensure that the Legislature’s authority to intervene remains intact. Lawmakers are effectively the attorney general’s clients, after all. “But I also appreciate the fact that he’s coming up close to that line so that we have an indication of where we think he might go, and whether we have a legitimate case,” Fann said.
To Fann, Brnovich’s letter concerning the lawsuit was sending a clear message to lawmakers that they should avoid a losing battle over blatantly unconstitutional laws.
“Everybody can debate what has a chance and what doesn’t,” Fann said. “But if it doesn’t, and we’re not willing to pursue that, why are we wasting everybody’s time?”
House Speaker Rusty Bowers, too, seemed to take the advice in stride, and unilaterally moved to repeal the law.
“It was just a perfect culmination” of opposition, Anderson said.
— Katie Campbell contributed to this report.