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Abstinence until marriage is the only reasonable option. Sex within marriage is uniquely fulfilling. Premarital sex is fraught with insuperable physical and psychological dangers. Contraceptives are apt to fail and carry health risks. Abortion is far from safe medically and is a selfish taking of another’s life. Homosexual sex is abnormal and a sure path to AIDS. So teach the various abstinence-only-until-marriage sex education programs being offered in more and more of the United States’ public schools. In criticizing the abstinence-only approach, proponents of comprehensive sex education do not dispute that teens should be taught the benefits of abstinence but argue that sex education courses must recognize that some students will not abstain. They maintain that abstinence-only programs endanger teens’ physical and psychological well-being by failing to provide full and accurate information about contraception and abortion and by treating homosexuality and many other vital topics as unworthy of serious discussion. TINGES OF RELIGION Abstinence-only sex education may be even worse than these critics maintain. It is not only bad from a policy perspective but probably unconstitutional as well. As interpreted by the U.S. Supreme Court, the First Amendment’s establishment clause prohibits laws having the purpose or effect of endorsing religion. If a court finds either (1) that a law is based virtually entirely on a religious purpose or (2) that a reasonable observer, acquainted with a law’s history and operation, is likely to view the law as sending a message of state support of religion, the court is obliged to strike down the law. Abstinence-only programs may well run afoul of this “endorsement test,” especially its second prong. The case for unconstitutionality rests on the considerable evidence that abstinence-only programs are rooted in the purpose of endorsing the views on sex urged by, and identified with, the Christian Coalition and its allies in the “religious right.” Even if this evidence is insufficient to prove a violation of the first prong, it goes a long way to proving a violation of the second one. A reasonable observer acquainted with this evidence would be hard-pressed not to perceive a message of state support of religion when a public school offers abstinence-only education. This evidence of religious roots comes in several forms. First, the instructional manuals used in abstinence-only courses typically contain various religious references. For example, the widely used “Sex Respect” curriculum includes a manual for parents that lists among things that adolescents need: “A Being greater than themselves to whom they can pray and ask for help and guidance.” That manual also tells parents that in discussing with their children the problems with abortion, “Don’t forget to add your own religious values.” Further evidence of the religious origins of abstinence-only programs is the range of agreement between the lessons of those programs and conservative Christian beliefs. As exemplified by laws against murder, it would be nonsensical to say that a law is religiously based simply because some people might argue for it on religious grounds. The range of agreement between abstinence-only programs and conservative Christian beliefs is so extensive, however, that it is difficult to believe that the conformity is anything but planned. The massive and well-documented campaign mounted by the religious right to influence local school boards is additional evidence that abstinence-only programs are religiously based. With issues like sex education, school prayer and evolution in mind, leaders of the religious right have devoted substantial resources in recent years to electing school boards supportive of their views, and their efforts in these traditionally low-turnout elections often have been quite successful. Lastly, a powerful piece of evidence that religion is behind abstinence-only programs is that the programs are so difficult to defend in nonreligious terms. The programs purport to provide an effective means of preventing teen pregnancy and the spread of sexually transmitted diseases. According to the “Sex Respect” teacher manual, teaching abstinence and avoiding instruction about contraceptives serve this goal well by providing students with a “clear message.” UNCLEAR MESSAGE This clear-message strategy is so deeply flawed, however, that it is hard to believe that the program was designed with that goal in mind. Most obviously, to the extent that some students are undeterred from premarital sex, the strategy leaves to chance whether they use contraceptives effectively, if at all. In fact, by exaggerating the failure rates of contraceptives, programs like “Sex Respect” discourage sexually active teens from using contraceptives. If there were good reason to believe that: (1) the clear-message strategy leaves very few teens undeterred from premarital sex and (2) comparable results could not be achieved with a sex education course that teaches the benefits of abstinence but also provides useful information about contraception, the strategy might make some sense in secular terms. There is very little reason, however, to believe that either of these propositions is true. In a world where teens are exposed to so many influences and pressures to engage in premarital sex, it would be nothing short of miraculous for the clear-message strategy to so impress teens as to leave very few undeterred. In addition, both empirical studies and common sense belie the notion that the abstinence-only approach deters premarital sex significantly better than comprehensive sex education that addresses teens’ full range of concerns. Ultimately, the programs’ approach to premarital sex, like their categorical prohibition on homosexual conduct, is far easier to understand in religious than secular terms. Both prohibitions make perfect sense as a means to give effect to the conservative Christian view that both premarital sex and homosexual conduct are sinful and therefore necessarily to be avoided. In failing to provide contraceptive information that might help nonabstaining teens avoid pregnancy or sexually transmitted diseases, the programs simply allow sinners to suffer the consequences of their sins. That may seem fine from a certain religious perspective, but from the perspective of the First Amendment, these programs should be seen as out of bounds. Gary Simson teaches at Cornell Law School; Erika Sussman is an associate at Washington, D.C.’s Swidler Berlin Shereff Friedman. They recently published on this subject in U.S.C.’s Review of Law and Women’s Studies.

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