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American Constitutional Law
, Volume Two
Gregg Ivers, American University
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| | Case Problems
Chapter Six: Freedom of Religion
Are Religious Exemptions to Generally Applicable Laws Permissible?
| The Case |
In September 2001, the Wholesome State Board of Education, acting upon the recommendation of its Textbook Committee, began using a series of new textbooks for the 2001-2002 public school year. Most of the Textbook Committee's recommendations focused on new and updated editions of standard math, science, history and literature textbooks. For the first time, however, the Board of Education had voted to implement a mandatory sex education and family planning course for grades 9-12, and had charged the Textbook Committee with the responsibility of choosing appropriate books. Throughout the spring and early summer of 2001, the Textbook Committee held public hearings on book and curriculum recommendations for the sex education and family planning program. After a lengthy and often acrimonious debate, the Textbook Committee voted to use the following books:
The Sexual Being: This book emphasizes the sensual and physical pleasures of sex and describes for teenagers different methods of sexual intercourse. The book includes illustrations of different methods of intercourse. A separate chapter on birth control and safe sex is included.
Sarah Has Two Mothers: This book is designed to acquaint students with "alternatives" to the "traditional" mother-father two-parent family structure by describing successful families headed by lesbian partners. The book states that "in our modern world, no familial structure is preferable to another. We should not consider the traditional husband-wife family unit as more desirable than any other, but as one of several equally important family units." The book includes a separate appendix on resources for same-sex couples (including men) seeking to adopt children. Legal resources to assist same-sex couples with finding and using surrogate mothers or fathers are also included.
"Uncle Palermo’s" Child: This book tells the story of a single gay man’s desire to adopt a child. Having been the favorite uncle to his friends' and siblings’ children, Palermo decided to enter single fatherhood, but encountered social and legal difficulties in adopting a child. This book, like Sarah Has Two Mothers, emphasizes the equal standing of all families, regardless of their structure.
A Teen's Guide to Safe Sex: This pamphlet, published in tandem with the United States Department of Health and Human Services, provides information on contraceptives and how to use them. The pamphlet also has a special section tailored to individual communities that lists local providers of sex education and information of reproductive health. The pamphlet includes information on abortion, abortion counseling, and adoption as an alternative to abortion.
After the textbook and curriculum choices became public, a group of parents with children in public schools from around the state formed an organization called Citizens Organized for Better Schools (COBS). COBS objected to the sex education program on religious grounds. COBS claimed that the state violated the First Amendment rights of its students because it forced them to enroll in courses whose subject matter offended them on religious grounds. Rather than ask the state to terminate the program, COBS instead asked the Board of Education to provide either an alternative curriculum for the objecting students or to permit them to "opt out" of classes in which such materials were used. COBS argued specifically that the sex education program violated the Free Exercise Clause of the First Amendment because the public schools were requiring students to affirm teaching that offended their religious beliefs.
The Board of Education refused the request of COBS. It argued that its public hearings offered parents and concerned groups the chance to voice their positions. The Textbook Committee's decision reflected the majority sentiment of the state's public school students and parents (students had also been permitted to testify and submit written opinions on the curriculum and textbook proposals when public hearings on the program were held). The only concession the state made towards the parents’ group was that it would permit, but not require, individual schools the option of letting students "opt" of sex education classes. Thus the decision to implement the sex education program as designed went forward for the 2001-2002 academic year.
Questions
1. Does the Sex Education Program, as implemented, violate the Free Exercise Clause?
2. Does permitting students the right to "opt out" raise an Establishment Clause issue?
3. As a public policy matter, is permitting students the right to "opt out" of a secular education requirement on religious grounds problematic?
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