A FEDERAL DISTRICT JUDGE IN Maryland has jolted the local liberal establishment in Montgomery County by blocking a pilot program in sex education. The program was designed to sweep away the "myths"--the lingering moral inhibitions and retrograde theological teachings--that apparently feed reservations, still widely held, about homosexuality and same-sex marriage. Judge Alexander Williams Jr. put the kibosh on this plan, and the jolt has had a deeper resonance, not least because Williams happens to be a Clinton appointee. But the lasting tremors come from the fact that the decisive strands in his May 5 judgment are lines of argument that have been used most often by the left: The judge invoked the concern for an establishment of religion, and beyond that, he raised the charge, under the First Amendment, that people with discordant views were being blocked from the public square.
The action in this case came in one of the most liberal counties in Maryland, encompassing the suburbs of Washington, D.C. An advisory committee was put together in November 2002 to recommend a new program of "health education" dealing with "sexual variation." The program, when it was finally written, reflected the liberal orthodoxy of the education establishment. With the claim to teach in an authoritative way about health and sex, the program put forth a series of "myths" to be corrected with "facts." But the myths were not all mythical, nor the facts all factual. And the authors could not restrain themselves from pronouncing on the moral dimness of people holding opposing views, including the theological backwardness of those religions that continue to honor the tradition of Jewish and Christian teaching on these matters.
The committee "informed" students, then, that "approximately 1 in 10" people are gay, lesbian, or bisexual. (That figure has long been discredited; more sober estimates put the figure closer to 2 percent). By any realistic measure, the epidemic of HIV infection is attributable overwhelmingly to the sexual practices of gay men. But the report, offering instruction in health, glides past the issue of fatal diseases by noting merely that "other groups are catching up"--e.g., intravenous drug users and "heterosexual women (17-30 years old)."
The committee assured students that homosexuality is no more abnormal than left-handedness. In contrast, "homophobia rather than homosexuality should be cured." What critics offer as moral reservations are reduced then to a psychological disorder; they do not elicit reasons to deal with their arguments, but therapy. Morality itself, the committee told students, is a "subjective issue . . . based on beliefs and values," which differ among communities according to their histories and conventions.
As for biblical teaching, the committee noted that the Bible contains numerous passages condemning the practices of heterosexuals. Among the things condemned have been "adultery, incest, wearing clothing made from more than one kind of fiber, and eating shellfish, like shrimp and lobster." The implication, of course, is that the Jewish rules on kashrut in eating and clothing are just so many conventions that most thoughtful people would regard as quaint, without moral force. "Fortunately," said the committee, "many within organized religions are beginning to address the homophobia of the church," by which they mean, of course, the Catholic church. By way of contrast they laud, among others, the Union of American Hebrew Congregations, the Unitarian Universalist Association, and the Society of Friends (Quakers), for supporting "full civil rights for gay men and lesbians." Catholics, Evangelicals, Mormons, Orthodox Jews--these are apparently the retrograde religions, for in holding to their traditional teaching, even as they minister to gays and lesbians, they deny the civil rights of these Americans.
With no sense that there was anything the least problematic in this approach, the Montgomery County Board of Education voted to install this new regimen for eighth and tenth-graders in six schools, beginning in May 2005. But the move drew a lawsuit by parents and citizens, organized into the Citizens for a Responsible Curriculum, along with Parents and Friends of Ex-Gays and Gays (PFOX).
Even a judge well seasoned in Democratic politics in Maryland could find something unsettling in this new curriculum; and indeed, it might have been his own liberal sensitivities that set off the alarms for Judge Williams. He professed himself to be "extremely troubled" by the willingness of the board "to venture--or perhaps more correctly bound--into the crossroads of controversy where religion, morality, and homosexuality converge." Williams himself had taken a master's degree in divinity and, without revealing anything of his own theological leanings, he remarked on the willingness of the curriculum to suggest that "the Baptist Church's position on homosexuality is theologically flawed."
As Williams noted, the curriculum "juxtaposes this portrait of an intolerant and Biblically misguided Baptist Church against other, preferred Churches, which are more friendly towards the homosexual lifestyle." In particular, the curriculum "plainly portrays Baptist churches as wrongly expressing the same intolerant attitude towards homosexuals today as they did towards African Americans during segregation." Williams observed that Baptists were presented here as "unenlightened" and "misguided" and wanting in the "tolerance" that marked the enlightened religions. In the name of secularism, or detachment from religion, the board was doing nothing less than establishing one segment of the religious in the country as less legitimate, less in accord with the liberality of the laws, and yes, less to be tolerated. So much for the Establishment Clause.
But then there was the other part of the First Amendment, dealing with speech and expression. Here the judge complained that the new curriculum "open[ed] up the classroom to the subject of . . . the moral rightness of the homosexual lifestyle"--and then presented "only one view on the subject--that homosexuality is a natural and morally correct lifestyle--to the exclusion of other perspectives." With these objections, Williams issued a temporary restraining order. No lasting harm, he thought, would be inflicted by withholding this pilot program until it could be more fully considered. But the faults in the program threatened an immediate violation of the Constitution and a lasting wrong.
Judge Williams professed finally that he did not understand why the provision of "health-related information" required the defendants to "offer up their opinion on such controversial topics as whether homosexuality is a sin, . . . and whether churches that condemn homosexuality are on theologically solid ground." In that way, he dropped some hints to the members of the school board as to how they might get themselves out of this fix. They might purge from the curriculum any attempts to pronounce on the legitimacy of the homosexual life or to render judgment on which religions are progressive or retrograde.
Judge Williams also gave some fine hints to Republicans in Congress if they would only be alert to them--and to their own legislative powers. After all, if the courts can articulate new rights under the Constitution, the legislative branch must be able to vindicate those same rights. And in vindicating them, the legislators may give them more proportion, more precision--and more bite. Do liberals want public schools purged entirely of religion? Then there should be no move by school boards, principals, or teachers to stamp some religions as favored and others as backward. No underhanded attempts to "establish" the religion of secularism. Do liberals want to break through conventions with "sex education"? Then education it should be: The life-shortening hazards of homosexual behavior should be conveyed, along with information about the other hazards of incautious sex; the record of conversions from the homosexual life should be put in texts along with the inconclusive arguments over the "gay gene."
If education is to be supported through federal aid, then the terms should be stringently set forth and instruction provided in an exacting, even-handed way. Faced with these requirements, the board in Montgomery County might prefer to revert to the curriculum as it used to be, and preserve a decorous silence: No endorsement of homosexual life, and, of course, no wounding words about gays and lesbians.
All of this could be done readily by a Republican Congress, taking up the liberal themes that Judge Williams brought down on the head of a liberal school board. Once again, conservatives may do their most telling work simply by asking liberals to live by their own slogans, and by the laws they hand down for others.
Hadley Arkes is the Ney Professor of American Institutions at Amherst College and a senior fellow at the Ethics and Public Policy Center.