|
[CROSS-POSTED TO CONLAWPROF AND
RELIGIONLAW]
My own school district, in Montgomery County,
Maryland, recently instituted a new sex education curriculum for the 8th and
10th grades, which was to begin in six pilot schools yesterday. A
federal judge issued a TRO enjoining the curriculum yesterday:
The judge found that plaintiffs had a likelihood of
success on both Free Speech and Establishment Clause grounds. I think the
free speech claim is frivolous: The court assumed that a school must be
"viewpoint neutral" in its curricular speech.
The Establishment Clause question might be
more interesting. It's based on a few passages from the new curriculum
that the court found troubling. According to the Board's attorney, the
passages in question are "meant for teacher guidance only." And it's not
clear, in any event, why the proper remedy for a constitutional violation would
not be to excise or edit those passages, rather than to enjoin the curriculum
altogether.
But assume arguendo that the passages in question
are conveyed to 8th and 10th graders, and that the only legal question
in the case is whether these particular passages (as opposed to the whol
curriculum) must be eliminated or edited. Many of
us would probably agree that there are better (or more appropriate) ways in
which the school district could convey what it's trying to say about moral and
religious disagreements on the question of homosexuality. But what do
folks think of the Establishment Clause claim? Here's what the
court wrote, with quotes from the curricular documents:
In this case, Plaintiffs allege that the Revised Curriculum discriminates between religious sects in that it prefers those sects that are friendly to the homosexual lifestyle. The Revised Curriculum notes that “Fundamentalists are more likely to have negative attitudes about gay people than those with other religious views." The Revised Curriculum also paints certain Christian sects, notably Baptists [footnote (see below)], which are opposed to homosexuality, as unenlightened and Biblically misguided: "Religion has often been misused to justify hatred and oppression. Less than half a century ago, Baptist churches (among others) in this country defended racial segregation on the basis that it was condoned by the Bible. Early Christians were not hostile to homosexuals. Intolerance became the dominant attitude only after the Twelfth Century." The Revised Curriculum plainly portrays Baptist churches as wrongly expressing the same intolerance attitude towards homosexuals today as they did towards African Americans during segregation. The Revised Curriculum states that this attitude towards homosexuality is based on generalized arguments that most modern day people reject: “Today, many people no longer tolerate generalizations about homosexuality as pathology or sin.”[footnote: The Revised Curriculum also notes that fundamentalists and evangelicals are more likely than other religions to have negative attitudes about gay people. The Revised Curriculum contrasts this view with view of “more tolerant religious backgrounds.”] The Revised Curriculum also implies that the Baptist Church’s position on homosexuality is theologically flawed. The materials state that theologians and Biblical scholars agree that “Jesus said absolutely nothing at all about homosexuality.” The materials also note that many seemingly innocuous activities were deemed abominations by the Bible, such as “wearing clothing made from more than one kind of fiber, and earing [sic] shellfish, like shrimp and lobster,” inviting the reader to draw the conclusion that not all activities that were banned in the Bible are still morally objectionable today. The Court would again note that the strength Defendants’ substantive theological arguments are irrelevant — it is their exclusive nature that the Court finds troubling. Most disturbingly, the Revised Curriculum juxtaposes this portrait of an intolerant and Biblically misguided Baptist Church against other, preferred Churches, which are more friendly towards the homosexual lifestyle. The Revised Curriculum states: "Fortunately, many within organized religions are beginning to address the homophobia of the church. The Nation Council of Churches of Christ, the Union of American Hebrew Congregations, the Unitarian Universalist Association, the Society of Friends (Quakers), and the Universal Fellowship of Metropolitan Community Churches support full civil rights for gay men and lesbians, as they do for everyone else." (emphasis added).The Court is extremely troubled by the willingness of Defendants to venture —or perhaps more correctly bound — into the crossroads of controversy where religion, morality, and homosexuality converge. The Court does not understand why it is necessary, in attempting to achieve the goals of advocating tolerance and providing health-related information, Defendants must offer up their opinion on such controversial topics as whether homosexuality is a sin, whether AIDS is God’s judgment on homosexuals, and whether churches that condemn homosexuality are on theologically solid ground. As such, the Court is highly skeptical that the Revised Curriculum is narrowly tailored to serve a compelling government interest, and finds that Plaintiffs’ Establishment Clause claim certainly merits future and further investigation. |
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
