End of the line for special rights seekers, Part 1

On January 31, Maryland Circuit Court Judge William J. Rowan, III ruled on the last chance for PFOX, Lynn Chapman’s Family Leader Network, and other assorted anti-gay obsessives to derail the progressive human sexuality curriculum in Montgomery County.

Assisted in this round by the Thomas More Law Center (“The Sword and Shield of People of Faith” according to their website), here are the two legal arguments the complainants came up with at the bitter end:

  • 1) It’s a violation of the Maryland code “to present instruction that homosexuality is ‘innate'” on the grounds that this statement is not “factual”
  • 2) Including the term “anal intercourse” in a lesson on the correct use of a condom is a violation of the Maryland code section prohibiting instruction in “erotic techinques”

We’ll dispatch these one at a time.

1) ‘Innate’ == ‘Immutable’

The plaintiff’s argument that it’s factually inaccurate to tell students that homosexuality is “innate” was based on a 2007 ruling in the Maryland Court of Appeals. Here is the spin by Thomas More Law Center, presented to their newsfeed subscribers under the headline Teaching Erotic Sex and that Homosexuality is Inborn to 8th and 10th Graders is OK:

Maryland Circuit Court Judge William J. Rowan, III, ruled last week that it is permissible to teach…that homosexuality is inborn, even though in 2007 Maryland’s highest appellate court ruled there is no scientific basis for such a conclusion…

…Maryland’s highest appellate court issued an opinion in a 2007 civil union case, holding the proposition that homosexuality is innate is not supported by credible evidence.

Well, that certainly sounds convincing, doesn’t it? What they are referring to is Conaway v. Deane. This is the case in which several same sex couples sued the Maryland Clerk of the Court who denied them a marriage license, arguing that such denial constitutes discrimination on the basis of sex, in violation of the Maryland Constitution. The court found that there was not sufficient evidence, for the purpose of determining the appropriate level of constitutional scrutiny, that sexual orientation is an immutable characteristic.

Nowhere in Conaway v. Deane does the term “innate” appear.

Likewise, nowhere in the human sexuality curriculum at issue does the term “immutable” appear.

This argument was really not an argument at all, but rather a tactic in which the Thomas More attorney used the terms “innate” and “immutable” interchangeably, presumably hoping that the judge wouldn’t notice that these are two different words with different meanings. Even in the absence of this creative wordplay the court would have dismissed the argument. As Rowen notes in the ruling:

[T]he lessons did not teach that homosexuality was innate, but that “there is no single reason why some people are homosexual, heterosexual, or bisexual” but that “according to the American Psychological Association, sexual orientation results from an interaction of cognitive, environmental and biological factors,” and that “sexual orientation is innate and a complex part of one’s personality.”

So students are told that there is no single known factor that determines sexual orientation – we just don’t have a definitive answer there. This is the same argument that the plaintiffs themselves make. Next.

2) Heterosexual “copulation” is not erotic

This is the only conclusion that makes sense given the argument the Thomas More attorney made in court. According to their own report on the hearing, her position is that the mention of “sex acts other than copulation” is a violation of Maryland Code 13a.04.18.03: “[M]aterial may not be used at any level that discusses or portrays erotic techniques of sexual intercourse.”

[A]lthough state law does not define the word “erotic,” Bolling argued that a Maryland law which prohibits classroom material that “portrays erotic techniques of sexual intercourse,” makes video demonstrations of the use of condoms in anal and oral sex illegal. Bolling argued that if a sexual act is not done for a procreative purpose, it is an erotic technique.

A couple of things: It ought to be obvious that, despite the carefully crafted phrase “demonstrations of the use of condoms in anal and oral sex,” there are no demonstrations of any kind of sex in the condom video.

Also, aside from the unintelligibility of the entire argument, the plaintiff’s position is completely undercut by the fact that the original plaintiff group (the CRC) has stated numerous times that they supported the previous curriculum and didn’t want it changed. The term “anal sex” was already in that curriculum, notably in a video that included instruction on the proper use of a condom.

Jim Kennedy from Teach The Facts called attention to this a year ago:

So it’s interesting to look at the condom video that’s been in use in Montgomery County schools for ten years, at least — the one that the CRC likes so much. I myself sat in a room at Einstein High School with the CRC’s President a couple of years ago and watched this thing, so I know they know what’s in it.

The video was called called “Hope is Not a Method.” At one point, the narrator tells students:

Condoms not only prevent pregnancies but they are the only method that prevents the spread of sexually transmissible diseases like syphilis, gonorrhea, herpes, condyloma, and of course, HIV, the virus that causes AIDS. Now we’re going to be talking about other methods of birth control as well but remember, whether you’re having vaginal, oral, or anal sex, condoms should be used to protect both you and your partner [emphasis added].

The new video and its accompanying lesson material don’t use the outdated term “condyloma,” and include this information:

(Page 13) “Condoms reduce, but do not eliminate the risk of STI/STD whenever there is oral, anal, or vaginal contact. (CDC, 2006; FDA, 2005)

Elsewhere (page 2), they provide the U.S. Department of Health and Human Services definition of Sexual abstinence: “The avoidance of voluntary intimate sexual contact – oral, anal, genital, or intimate skin-to-skin.”

I don’t know why the plaintiffs in this case appear to be so stupid that they want to tell adolescents that as long as they abstain from vaginal sex they can remain virgins, but that seems to be the case. That kind of misinformation is arbitrary, unreasonable, and should be illegal. There are lives at stake.

“This court finds that there is nothing to demonstrate that the Board of Education’s opinion is arbitrary, unreasonable or illegal,” Rowan wrote. This debacle has been dragged out for six years now. This ought to be the end of it. CRC, PFOX and FLN could appeal the ruling, but why? They don’t have any arguments left to make.

But they want to make some anyway. The Gazette reports that they are all meeting this month with the Thomas More attorneys to decide what to do next. “We’re not leaving,” snarled the CRC president in response to this statement from the Superintendent:

We hope that we can put this litigation behind us now once and for all and move forward with our primary mission – educating our children.

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