Family Values, Courts, and Culture War: The Case of Abstinence-Only Sex Education

By Taylor, John E. | The William and Mary Bill of Rights Journal, May 2010 | Go to article overview

Family Values, Courts, and Culture War: The Case of Abstinence-Only Sex Education


Taylor, John E., The William and Mary Bill of Rights Journal


In the context of a symposium on "Families, Fundamentalism, & the First Amendment," the topic of abstinence-only sex education is a natural. In teaching that sex should be limited to "mutually faithful monogamous relationship[s] in [the] context of [heterosexual] marriage,"1 abstinence-only sex education promotes a specific normative vision of what families should be. Because this vision is so recognizably part of a religiously conservative worldview, the policy might be described as an expression of "fundamentalism."2 Completing the circle, any government policy born of "fundamentalism" and supported by "fundamentalists" might be thought to implicate, and perhaps to violate, the First Amendment's Establishment Clause. The link to the First Amendment raises the hope - or fear - that courts can declare an end to this particular battle in the culture wars.

Under current law, public schools may not use overtly religious approaches to teaching abstinence and the government may not directly fund overtly religious abstinence education by private social service providers.3 The Supreme Court's decision in Bowen v. Kendrick,4 however, appears to suggest that facially secular abstinenceonly programs raise no Establishment Clause problems.5 The legal status quo, then, seems to be: "Just say no to sex" is OK; "Jesus wants you to say no to sex" is not. Nevertheless, it takes little imagination to see even facially secular abstinence programs as an expression of the values of the Religious Right. Accordingly, a number of commentators have suggested that all abstinence-only sex education violates the Establishment Clause.6 If this is so, the logical implication is that courts can and should bring an end to controversies about sex education by declaring victory for the sexual left.7

A complete assessment of the Establishment Clause issues regarding abstinence education is beyond the scope of this Essay.8 My limited goal here is to shed light on one common argument that plays an important role in debates about sex education. In a nutshell, the argument is that abstinence education is so ineffective that it can only be explained as an effort to promote a religious vision of sexual morality.9 The beauty of the argument is that it invites us to view debates about sex education as contests between pragmatic, scientific promoters of public health and ideologues who privilege (religious) values over science (and, perhaps, over common sense as well). This formulation avoids two alternative framings that would be less advantageous to abstinence critics. The sex education debate is not just about policy effectiveness, where we would expect school boards, departments of education, and legislators to have the last word. Nor is the debate simply a clash between religious and secular visions of sexual morality. Courts might take sides in that debate under the banner of the Establishment Clause, and (if the Establishment Clause means anything) there are instances where courts must say the secular is preferred to the religious as a matter of constitutional principle.10 But school silence about condoms seems a far cry from teaching students that Jesus died for their sins, and courts are and ought to be nervous about declaring that the Constitution systematically prefers secular, postreligious norms of conduct over traditional, religiously identified ones.11 "Science over values" is a more palatable creed than "Modern, secular conduct norms over traditional, religious ones."

My goal in this essay is to cast doubt on the "science versus values" framing of the argument. I make four primary claims. The most basic is that sex education is inescapably "about values" for both the sexual right and the sexual left. A full appreciation of this truth leads, I suggest, to three additional points. First, the federal government should not attempt to dictate how state and local governments approach sex education. Second, courts should be reluctant to use the Establishment Clause to settle sex education controversies. …

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