Friday, July 26, 2002

SILLY DEM JUDGES: A Louisiana federal district judge ruled yesterday that an abstinence program funded in part by the government violates the Establishment clause because it advances religion. The funding program provides that "[c]ities, states or organizations that receive the federal grants must use the money to teach abstinence as the only reliable way to prevent pregnancy and sexually transmitted diseases." The goal is to help adolescents build character and develop the skills to "say no to sex." The basic Lemon test for determining whether government funding violates the Establishment clause goes something like this: Does the grant have the primary purpose of advancing religion? Does the grant have the actual effect of promoting a religion? Does the grant unnecessarily entangle the government with religion? More recently the courts have moved toward a different test: does the grant show that the government is endorsing religion? Also, is the grant neutral with respect toward religion? (That is, can religious and non religious groups qualify for the grant on an equal basis) I won't go into any in-depth analysis, but I think it's pretty clear that an abstinence program does NOT advance religion. (Unless you worship a sex goddess, perhaps? Well no; I guess that would be "targeting" religion) The real issue here is an argument that I heard for the first time when I was in law school -- basically, sexual responsibility (particularly abstinence outside of marriage) is a Christian tenet -- and since no one besides Christians believe in sexual responsibility anymore, if government funds go to support abstinence programs (or anti-abortion concerns, as the second verse of this same song plays out) then they are necessarily going to advance Christianity, which is prima facie a violation of the Constitution. It's a silly argument, and one that absolutely baffled me the first time I heard it advanced. And frankly, it's bad legal analysis. The major failure of this argument (and there are many) is that the government itself has a very strong interest in promoting abstinence among teenagers. Interestingly, the grant was created as part of a welfare reform bill. The clear purpose of the grants is for the governnment to educate teenage girls so that it can reduce the number of unwanted children growing up on welfare. You can't really get much more secular than that.

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