On May 5th Judge Alexander Williams, Jr., (D-Maryland), a Clinton appointee, released his opinion in Citizens for a Responsible Curriculum v. Montgomery County Public Schools, Case AW-05-1194.
CPR is an organization supported by Jerry Falwell, Tony Perkins and others, which challenged a proposed revised curriculum for sex education in the Montgomery County Public Schools which would have positively addressed the issue of homosexuality.

This is an important Establishment Clause case, and I thought I would address it as a lawyer who has handled constitutional claims.
The ruling has been hailed by the Religious Right and generally condemned by gays. This morning’s Washington Post has a pretty balanced report, here

 Neither side has actually understood it.

The Court’s opinion explains why it is granting a Temporary Restraining Order blocking the proposed revised curriculum in the Montgomery County Public Schools.  The ruling is based primarily upon the Establishment Clause of the First Amendment and affirms separation of Church and State. It cites Everson for the proposition that the Establishment Clause of the First Amendment “was intended to erect a wall of separation between Church and State.”

Unfortunately the proposed curriculum cited several moderate or liberal denominations (i.e., Unitarian Universalists and Quakers) with approval and castigated fundamentalists and Baptists in addressing the question of whether homosexuality is a sin.  Consequently, teaching it as presented in public schools would amount to an Establishment of the preferred sects.

I do not fully agree with the Court’s free speech analysis, but it was not the gravamen of his ruling.  Basically, he said he wanted to hear more on the issue.  I think he was most concerned that in addressing whether homosexuality is a sin the curriculum opened a door but only allowed one viewpoint through.

You can access the opinion here,

It is truly odd to see Falwell and his ilk arguing an Establishment Clause case when they are claiming on other fronts that there is no separation of Church and State.  They had to rely on the “school prayer” line of cases.  Of course they do not mention that in any of the press stories covering the ruling where they are crowing about their victory.  No victory could be more Pyrrhic.

The Court also expressly rejected the Plaintiff’s arguments that allowing the proposed curriculum would lead to increased homosexual sex and that homosexual sexual activity is more dangerous than heterosexual activity, noting that “the harm that Plaintiffs posit is highly speculative and attenuated.”

The curriculum ought to be redrafted to be neutral on religion, and not to favor the denominations cited affirmatively in it.

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