Introduction

Since the Supreme Court’s invalidation of anti-gay marriage laws, scholars and advocates have been debating what issues and strategies the LGBT movement should prioritize next. This Article joins that dialogue by proposing a national campaign to repeal or invalidate anti-gay curriculum laws—statutes that prohibit or restrict the discussion of homosexuality in public schools. Some of these laws require teachers to instruct students that “homosexual conduct is a criminal offense,” that “homosex­uality is not a lifestyle acceptable to the general public,” or that “homosexual activity . . . is . . . primarily responsible for contact with the AIDS virus.” Others prohibit teachers from “promot[ing]” homosexuality or suggesting that “some methods of sex are safe methods of homosexual sex.” Still others require teachers to “teach honor and respect for monogamous heterosexual marriage” or emphasize “the benefits of monogamous heterosexual marriage.” Nearly all of these laws require teachers to emphasize “abstinence from sexual activity before marriage” while excluding same-sex relationships from the definition of “marriage.”

Now that anti-gay sodomy and marriage laws have been declared unconstitutional, anti-gay curriculum laws are anachronistic—remnants of a time in which governmental discrimination against LGBT people was lawful and rampant. Yet these laws are still on the books, some jurisdic­tions are still enforcing them, and no court has had an opportunity to determine whether they are constitutional. This Article develops the framework for a nationwide campaign to eliminate them.

The scope of this campaign will be broader than others have antici­pated. In the recent literature, scholars and advocates have commonly referred to anti-gay curriculum laws as “no promo homo” or “don’t say gay” laws. These labels are catchy, but they are imprecise in this context: They use a single provision that appears in only one state’s curriculum law to describe a wide variety of provisions that exist in the curriculum laws of many states. Because of this imprecision, scholars and advocates have been unable to agree on the most basic facts about anti-gay curricu­lum laws: how many states have them, the reasons they were adopted, and the reasons they should be invalidated.

This Article introduces a new label—“anti-gay curriculum laws”—to clear up the confusion surrounding this subject. This phrase does not rhyme, but it identifies the only two features that are actually shared by the group of statutes commonly referred to as “no promo homo” and “don’t say gay” laws: They are anti-gay and they are curricular. They discriminate against homosexuality, and they govern the health-education, HIV-education, and sex-education curricula in public schools.

As this more precise definition makes clear, anti-gay curriculum laws are more prevalent than previously recognized. While scholars and advo­cates have claimed that “no promo homo” laws exist in seven, eight, or nine states, a comprehensive survey shows that anti-gay curriculum laws actually exist in twenty states. More than 25 million children—nearly half of all school-aged children in the United States—are attending public schools in these twenty states. In nine of these states, teachers are affirmatively required to teach anti-gay curricula in all public schools. In the other eleven, teachers may choose between offering stu­dents an anti-gay curriculum or providing no health, sex, or HIV educa­tion at all.

In particular, this Article identifies two types of anti-gay curriculum laws that scholars and advocates have overlooked: “promo hetero” laws and “abstinence-until-marriage” laws. In three states, curriculum laws require teachers to emphasize the alleged benefits of “monogamous hetero­sexual marriage.” In seventeen states, curriculum laws require emphasis on “abstinence from sexual activity until marriage,” while still defining the term “marriage” in a way that excludes same-sex unions. The most prominent example of an “abstinence-until-marriage” law is Title V of the Social Security Act, a federal law governing the annual distri­bution of up to $75 million for “abstinence education” programs. While this law has not been previously identified as a “no promo homo” or “don’t say gay” law, it is especially significant. In 2016, the Department of Health and Human Services distributed more than $59 million to thirty-five states and two U.S. territories to support abstinence educa­tion programs under Title V. Two-thirds of these funds were received by states currently governed by anti-gay curriculum laws.

This Article proceeds in five parts. Part I introduces a new typology of anti-gay curriculum laws. It identifies five types of anti-gay provisions that commonly appear in curriculum laws and provides the most salient examples of each type. Part II examines the history of anti-gay curriculum laws, drawing on an original survey of state legislative histories and local newspaper archives. Most of these laws were passed in the late 1980s and early 1990s, during a period of national hysteria about the HIV epi­demic and the LGBT movement’s early gains. Yet a surprising number were passed more recently, in the midst of local and national struggles over same-sex marriage. Regardless of when they were passed, these laws were intended to deter minors from developing same-sex attractions, establishing same-sex relationships, or identifying as lesbian, gay, or bisex­ual.

Part III addresses two questions that are commonly asked about the enforcement of anti-gay curriculum laws, in light of the Supreme Court’s invalidation of anti-gay sodomy and marriage laws: (1) whether state and federal agencies still have the legal authority to enforce anti-gay curricu­lum laws, and (2) whether officials still have the political will to do so. For the moment, the answer to both questions is yes. Although the Supreme Court has invalidated anti-gay marriage and sodomy laws, no court has had an opportunity to determine whether anti-gay curriculum laws are constitutional. Unless and until legislatures repeal anti-gay curriculum laws or courts invalidate them, state and federal officials retain the legal authority to continue enforcing them. The available evidence suggests that at least some jurisdictions may still be enforcing these laws, even after the Supreme Court’s invalidation of anti-gay sodomy and marriage laws.

Part IV explains why anti-gay curriculum laws are unconstitutional. These laws violate the Constitution’s equal protection guarantees, regard­less of what level of scrutiny applies to them. In four rulings issued over a period of twenty years, the Supreme Court has invalidated anti-gay laws under the equal protection and due process guarantees of the Fifth and Fourteenth Amendments. Based on the principles articulated in these cases, this Part explains why anti-gay curriculum laws are not rationally related to any legitimate governmental interests. In particular, this Part reviews and rejects four interests that state legislatures have historically invoked to justify anti-gay curriculum laws: (1) promoting moral disap­proval of homosexual conduct, (2) promoting children’s heterosexual development, (3) preventing sexually transmitted infections, and (4) recognizing that states have broad authority to prescribe the curriculum of public schools. The first and second interests do not qualify as legiti­mate, and the third and fourth interests are not rationally related to anti-gay curriculum laws. Although no court has ruled on the issue yet, the Supreme Court’s jurisprudence leaves no doubt that anti-gay curriculum laws violate the Constitution’s equal protection guarantees.

This Article concludes by explaining why LGBT advocates have waited until now to launch a campaign against anti-gay curriculum laws and why they should not wait any longer. As long as anti-gay sodomy and anti-gay marriage laws were enforceable, anti-gay curriculum laws could have been justified by reference to them—as the state’s means of deterring public school students from engaging in criminal conduct or extramarital sex. Now that sodomy and marriage laws have been declared unconstitutional, LGBT advocates can launch a national campaign to repeal or invalidate anti-gay curriculum laws.

Public schools represent a vital institution in our democracy, laying the foundations of citizenship. But across the country, our public schools have been failing LGBT youth, who report alarming levels of bullying, isolation, and suicide. Invalidating anti-gay curriculum laws will not eliminate these risks, but it will reduce them—protecting mil­lions of LGBT students, and students with LGBT parents, from both physi­cal and psychological harms. By eradicating one of the country’s last vestiges of state-sponsored homophobia, advocates can take another step toward the integration of LGBT youth into American society and the equal protection of LGBT people of every age.

I. Typology: Identifying Anti-Gay Curriculum Laws

The phrase “no promo homo” was originally coined by Nan Hunter to describe the Briggs Initiative, a 1978 California ballot proposal allowing the termination of any public school teacher who engaged in the “advocating, soliciting, imposing, encouraging, or promoting of pri­vate or public homosexual activity.” Later, William Eskridge used the phrase “no promo homo” to describe similar laws that emerged during this period that prohibited the “promotion” of “homosexuality” in vari­ous settings: federal taxation and spending, state university funding, FBI hate crime reporting, and public school curricula.

This original usage of “no promo homo” allowed Hunter, Eskridge, and later scholars to identify important shifts that took place in anti-gay rhetoric during the 1970s. Before that era, anti-gay rhetoric had relied primarily on the rhetoric of predation and disgust, invoking the specter of the “homosexual child molester.” During the 1970s, anti-gay rhetoric developed “more abstract,” “less personal” appeals —new claims about the spread of homosexuality through the subtler dynamics of indoctrina­tion, role modeling, and public approval. By dubbing this shift “no promo homo,” scholars revealed the anti-gay premises underlying the opposition’s new rhetoric, establishing continuity between old and new fears.

More recently, however, scholars and advocates have begun to use the phrase “no promo homo” to refer specifically to anti-gay curriculum laws. This new usage is understandable, because anti-gay curriculum laws are among the country’s last remaining “no promo homo” laws. But the new usage is also problematic, because many anti-gay curriculum laws do not fit the “no promo homo” model. As a result, scholars and advocates have been unable to agree on how many states have these laws, why they were adopted, or how they should be analyzed.

Based on a comprehensive survey of federal and state statutes, this Part shows that anti-gay provisions exist in the curriculum laws of twenty states and in one federal law that governs funding for abstinence-education programs. The Part divides these measures into five types, which re­flect the particular ways that they discriminate: (1) Don’t Say Gay, (2) No Promo Homo, (3) Anti-Homo, (4) Promo Hetero, and (5) Abstinence Until “Marriage.”

A. Don’t Say Gay

Strictly speaking, there is no state that actually has a “don’t say gay” law—one that explicitly prohibits teachers from discussing homosexuality at all. But South Carolina comes close. In South Carolina, health educa­tion programs “may not include a discussion of alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosex­ual relationships except in the context of instruction concerning sexually transmitted diseases.”

Louisiana’s law is similar, but the law’s scope is ambiguous. In Louisiana, “[n]o sex education course offered in the public schools of the state shall utilize any sexually explicit materials depicting male or fe­male homosexual activity.” Because of the ambiguity of the term “depicting,” it is not clear whether this limitation applies to verbal descrip­tions, as well as graphic depictions. It is clearly a “don’t show gay” law; it may also be a “don’t say gay” law.

B. No Promo Homo

Despite the popularity of the term “no promo homo,” there is only one state that prohibits teachers from “promoting” homosexuality in health-, sex-, or HIV-education courses. Arizona law prohibits teachers from offering any “instruction which . . . [p]romotes a homosexual life-style,” “[p]ortrays homosexuality as a positive alternative life-style,” or “[s]uggests that some methods of sex are safe methods of homosexual sex.”

C.Anti-Homo

Four states affirmatively require teachers to portray “homosexuality” in a negative manner—as an unacceptable lifestyle, a criminal offense, or a cause of sexually transmitted infections. In both Alabama and Texas, sex-education courses must include “[a]n emphasis . . . that homosexual­ity is not a lifestyle acceptable to the general public.” In addition, both states require sex education to include “[a]n emphasis . . . that homosex­ual conduct is a criminal offense under the laws of this state.”

Although the portrayal of homosexual conduct as a “criminal of­fense” may sound obsolete, both Alabama and Texas still have sodomy laws on the books. In Alabama, it is a crime to engage in any form of “devi­ate sexual intercourse.” In Texas, it is a crime to engage in “deviate sexual intercourse with another individual of the same sex.”

This interplay between curricular and criminal laws is apparent in other states, too. In Mississippi, sex education must include instruction that “[t]eaches the current state law related to sexual conduct, including forcible rape, statutory rape, paternity establishment, child support and homosexual activity.” Mississippi still criminalizes sodomy as “the detesta­ble and abominable crime against nature.”

Rather than portraying same-sex intimacy as immoral or criminal, Ok­lahoma portrays it as inherently dangerous—“primarily responsible for contact with the AIDS virus.” Under Oklahoma’s HIV-education law, all public schools are required to “specifically teach students that”:

engaging in homosexual activity, promiscuous sexual activity, intravenous drug use or contact with contaminated blood prod­ucts is now known to be primarily responsible for contact with the AIDS virus. avoiding the activities specified in paragraph 1 of this subjec­tion is the only method of preventing the spread of the virus.

In one respect, Oklahoma’s law is unique: It is the only law that affirm­atively requires teachers to instruct students that “homosexual activ­ity” is responsible for spreading HIV. But as we have already seen, similar language appears in other states. In Arizona, for example, teach­ers may not suggest “that some methods of sex are safe methods of homo­sexual sex.” While this law is less specific than Oklahoma’s, it pre­sumes and implies that same-sex intimacy is inherently dangerous.

D. Promo Hetero

Three states specifically require the promotion of “heterosexual” rela­tionships. In Florida, health education must “[t]each abstinence from sexual activity outside of marriage as the expected standard for all school-age children, while teaching the benefits of monogamous heterosex­ual marriage.” In Illinois, sex-education classes “shall teach honor and respect for monogamous heterosexual marriage.” In North Carolina, all reproductive health and safety education programs must teach that “a mutually faithful monogamous heterosexual relationship in the context of marriage is the best lifelong means of avoiding sexually transmitted diseases, including HIV/AIDS . . . .”

E. Abstinence Until “Marriage”

The last group of anti-gay curriculum provisions is by far the largest and the most frequently overlooked. Seven­teen states require teachers to emphasize the benefits of abstinence from sexual activity outside of marriage, while defining the term “marriage” to exclude same-sex couples.

The details of abstinence-until-marriage provisions vary, but they typi­cally require teachers to emphasize one of the following themes in sex-education materials: (1) “the social, psychological, and physical health gains to be real­ized by abstaining from sexual activity before and outside of marriage”; (2) “abstinence from sexual activity before marriage [as] the only reli­able way to prevent pregnancy and sexually transmitted diseases, including human immunodeficiency virus and acquired immunodefi­ciency syndrome”; or (3) “abstinence from sexual activity outside of marriage as the ex­pected standard for all school age children.”

Standing alone, none of these provisions is anti-gay. Depending on how these states define the term “marriage,” the provisions could permit or require teachers to emphasize abstinence from sexual activity until any kind of “marriage”—including marriages between two persons of any sex. But these seventeen states still have anti-gay marriage laws on the books. As a result, these “abstinence-until-marriage” laws still facially re­quire teachers to instruct students that same-sex relationships are not officially sanctioned, because they do not fall within the state’s definition of “marriage.”

Many of these abstinence-until-marriage provisions parallel the defini­tion of “abstinence education” in Section 510 of Title V of the Social Security Act, which has governed the distribution of federal block grants for abstinence education programs for twenty years. Section 510(b) provides an eight-point definition of “abstinence education.” Five of the definition’s eight requirements use the term “marriage” or “wed­lock”:

For purposes of this section, the term “abstinence education” means an educational or motivational program which— (A) has as its exclusive purpose, teaching the social, psycho­logical, and health gains to be realized by abstaining from sexual activity; (B) teaches abstinence from sexual activity outside marriage as the expected standard for all school age children; (C) teaches that abstinence from sexual activity is the only cer­tain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other associated health prob­lems; (D) teaches that a mutually faithful monogamous relation­ship in context of marriage is the expected standard of human sexual activity; (E) teaches that sexual activity outside of the context of mar­riage is likely to have harmful psychological and physical effects; (F) teaches that bearing children out-of-wedlock is likely to have harmful consequences for the child, the child’s par­ents, and society; (G) teaches young people how to reject sexual advances and how alcohol and drug use increases vulnerability to sex­ual advances; and (H) teaches the importance of attaining self-sufficiency be­fore engaging in sexual activity.

According to guidance issued by the Department of Health and Human Services, “no funds can be used in ways that contradict the eight A-H com­ponents of Section 510(b)(2).”

One month after Title V was signed into law, it was followed by the Defense of Marriage Act (DOMA). Under Section 3 of DOMA, the term “marriage” was defined to include “only a legal union between one man and one woman as husband and wife” in all federal laws. In United States v. Windsor, the Supreme Court held that Section 3 unconstitutionally dis­criminated against same-sex couples in “lawful marriages.” Yet in the years since Windsor, the Department of Health and Human Services has continued to enforce Title V’s definition of “abstinence education,” with­out offering any guidance about how the definition’s references to “mar­riage” and “wedlock” should be interpreted.

* * *

The following table identifies all of the country’s anti-gay curriculum laws based on the typology outlined above:

Table 1. Typology of Anti-Gay Curriculum Laws

State Don’t Say Gay No Promo Homo Anti-Homo Promo Hetero Abstinence Until “Marriage” Alabama ✓ ✓ Arizona ✓ ✓ Arkansas ✓ Florida ✓ ✓ Illinois ✓ Indiana ✓ Louisiana ✓ ✓ Michigan ✓ Mississippi ✓ ✓ Missouri ✓ North Carolina ✓ ✓ North Dakota ✓ Ohio ✓ Oklahoma ✓ South Carolina ✓ ✓ Tennessee ✓ Texas ✓ ✓ Utah ✓ Virginia ✓ Wisconsin ✓ U.S. (Federal) ✓

F. Alternative Typologies

In the literature on this subject, others have proposed two alterna­tive typologies for understanding anti-gay curriculum laws. The first typol­ogy distinguishes between anti-gay curriculum laws that are “nega­tive” (requiring teachers to discuss homosexuality in a disparaging manner) and those that are “neutral” (prohibiting teachers from discussing homosexuality in a supportive manner). This typology has two drawbacks. First, it is incomplete: In this Article’s terms, the typology includes “anti-homo” and “no promo homo” laws, but it excludes “don’t say gay,” “promo hetero,” and “abstinence-until-marriage” laws. Second, this typology is misleading, because it implies that “no promo homo” laws are “neutral.” Although “no promo homo” laws do not affirmatively require teachers to disparage homosexuality, they still discriminate against lesbian, gay, and bisexual people by facially prohibiting teachers from discussing homosexuality in a supportive manner.

A second typology distinguishes between anti-gay curriculum laws based on whether the discriminatory language is “direct” (discriminating against lesbian, gay, and bisexual people by using terms like “homosexual­ity” or “homosexual”) or “indirect” (using terms that are not inherently discriminatory—e.g., “criminal,” “marriage,” “unmar­ried,” and “wedlock”—but are defined in a discriminatory manner by sodomy and marriage laws). This distinction is accurate, but it is not relevant in construing anti-gay curriculum laws or determining whether they are constitutional. As explained in Part III, only legislatures have the authority to define terms that appear in statutes. Courts can enjoin the enforcement of statutes, but they cannot repeal or amend them. As a result, it does not matter whether a jurisdiction’s anti-gay provisions ap­pear within the jurisdiction’s curriculum law or within the jurisdiction’s other statutes, such as sodomy or marriage laws. Wherever they appear, these provisions govern the meaning of the jurisdiction’s curriculum law, unless and until a court enjoins the jurisdiction from enforcing them.

II. History: Anita, AIDS, and Abstinence Until “Marriage”

Anti-gay curriculum laws have not received specific attention from his­torians. This Part recovers the history of these laws from state legisla­tive and local newspaper archives in the twenty states in which they were adopted. It situates the adoption of these laws in broader context by plac­ing them on a timeline of significant events in the history of sex educa­tion and LGBT rights in the United States. This timeline focuses on devel­opments in the laws governing HIV education and abstinence educa­tion, which played especially significant roles in the adoption of anti-gay curriculum laws.

The narrative is divided into three chronological sections. The first discusses the adoption and invalidation of the country’s first anti-gay curriculum law in the late 1970s, which established the political and legal framework for the legislation that followed. The second details the wave of anti-gay curriculum laws adopted in the late 1980s and early 1990s in response to early demands for HIV education in public schools. The third describes the adoption of abstinence-until-marriage laws and same-sex marriage bans in the late 1990s and early 2000s and struggles over the fate of these laws in recent years.

A. The Country’s First Anti-Gay Curriculum Law, 1978–1986

The country’s first anti-gay curriculum law was adopted by the Oklahoma Legislature on April 6, 1978. In the legislative record, it was known as H.B. 1629, introduced by Mary Helm and John Monks, two of the state’s most prominent conservative legislators. In the popular press, it was recognized as the work of Anita Bryant and John Briggs, two of the country’s leading opponents of gay rights.

1. Anita Bryant. — Anita Bryant was a beauty queen and popular singer from Oklahoma. By the 1970s, she was living in Miami, where she served as a well-known advertiser and spokeswoman for Florida orange juice.

On January 18, 1977, Miami-Dade County adopted a local ordinance prohibiting discrimination based on “sexual preference.” In response, Bryant launched the “Save Our Children” movement, a highly organized and publicized campaign to repeal the ordinance by popular vote.

Although the ordinance banned discrimination in employment, housing, and public accommodations, Bryant’s campaign was especially focused on the employment of “homosexual schoolteachers.” Among other things, she claimed that “homosexual teachers” would “sexually molest children,” serve as “dangerous role models,” and “encourage more homosexuality by inducing pupils into looking upon it as an acceptable life-style.” Protesting that “homosexuals . . . do not have the right to influence our children to choose their way of life,” she promised, “I will lead such a crusade to stop it as this country has not seen be­fore.”

Bryant’s campaign against “homosexual recruitment” was remarkably successful. Only six months after the gay rights ordinance was adopted, it was repealed in a two-to-one landslide. In the meantime, Bryant’s work had attracted national headlines and won support from conservative leaders. On the night of her victory, Bryant promised to “carry our fight against similar laws throughout the nation.”

2. John Briggs. — John Briggs was a California state senator. Shortly af­ter Bryant’s victory, Briggs announced his plan to bring the Save Our Children campaign to California. Within a few months, Briggs submitted a ballot initiative to California’s Attorney General.

Proposition 6, which became known as the Briggs Initiative, allowed school districts to suspend, dismiss, and deny employment to “any person who has engaged in public homosexual activity or public homosexual conduct.” Although the terms “public homosexual activity” and “public homosexual conduct” sound similar, the initiative provided separate defini­tions for the two terms. “Public homosexual activity” was defined to include any act of oral or anal intercourse performed “upon any other person of the same sex, which is not discreet and not practiced in pri­vate.” In contrast, “public homosexual conduct” was defined to include “the advocating, soliciting, imposing, encouraging, or promoting of pri­vate or public homosexual activity directed at, or likely to come to the attention of schoolchildren and/or other employees.”

When a teacher was charged with engaging in “public homosexual ac­tivity or public homosexual conduct,” the initiative required school boards to consider the following factors “in determining unfitness for service”:

(1) the likelihood that the activity or conduct may adversely af­fect students or other employees; (2) the proximity or remote­ness in time or location of the conduct to the employee’s respon­sibilities; (3) the extenuating or aggravating circum­stances . . . ; and (4) whether the conduct included acts, words or deeds, of a continuing or comprehensive nature which would tend to encourage, promote, or dispose schoolchildren toward private or public homosexual activity or private or public homo­sexual conduct.

During his campaign, Briggs closely identified himself with Anita Bryant and justified his initiative in similar terms. He introduced his pro­posal as the “California Save Our Children Initiative,” borrowed heavily from Bryant’s pamphlets and speeches, and circulated photographs of himself and Bryant together. Like Bryant, Briggs defended his initiative as an attempt to protect children from gay teachers: “What I am after is to remove those homosexual teachers who through word, thought or deed want to be a public homosexual, to entice young impressionable children into their lifestyle.”

By its own terms, however, the Briggs Initiative was more ambitious than the senator acknowledged. Because the initiative prohibited “advocating,” “encouraging,” or “promoting” homosexual behavior, it could be applied to heterosexual teachers, as well as gay teachers. And because the initiative prohibited speech that was “likely to come to the attention of schoolchildren and/or other employees,” it could be ap­plied to speech that occurred outside of the classroom, or even outside of school. Seizing on these scenarios, opponents argued that “[y]ou don’t have to be gay to be fired!”; “[y]ou just have to: [e]xpress an unpopu­lar opinion” or “[s]peak out on human rights.” In a prominent op-ed, for­mer California Governor and future President Ronald Reagan argued that the inclusion of the word “advocacy” had “generated heavy biparti­san opposition,” because it was not “confined to prohibiting the advocacy in the classroom of a homosexual lifestyle.” Although early polls indi­cated that the initiative was likely to pass, it was defeated by a margin of 58% to 42% on November 7, 1978.

3. H.B. 1629: Oklahoma’s Teacher-Fitness Law. — Although the Briggs In­itiative failed to pass in California, a remarkably similar proposal was adopted in Anita Bryant’s home state during the same period. On January 16, 1978, while Senator Briggs was still gathering signatures to put his initiative on the ballot, H.B. 1629 was introduced into the Oklahoma House. The bill was sponsored by Senator Mary Helm and Representative John Monks, advocates for the John Birch Society and leading opponents of the Equal Rights Amendment (ERA).

H.B. 1629 sailed through the Oklahoma Legislature with little de­bate. On February 7, it was adopted by the House in an 88-2 vote. To explain the bill’s purpose, Representative Monks argued that H.B. 1629 allowed school boards “to fire those who are afflicted with this degen­er­ate problem—people who are mentally deranged this way.”

After the bill passed the House, Senator Helm invited Anita Bryant—“Oklahoma’s most famous woman”—to address her col­leagues. On February 21, Bryant delivered a brief speech to the Oklahoma Senate, in which she claimed that Americans wanted to return to the moral values “which our forefathers fought and died for.” Although she recognized that “we cannot legislate morality,” she added that Americans wanted to “stop legislating immorality,” to a round of ap­plause. In her view, H.B. 1629 was “not an attempt to legislate morality, but a defense against pro-homosexuality bills.”

On March 15, H.B. 1629 was adopted by the Senate in a 42-0 vote. In presenting the bill, Senator Helm explained that “it would head off a threat to the children of Oklahoma.” In response to a question from one of her colleagues, she acknowledged that teachers could already be dismissed for “moral turpitude.” She warned, however, that there was a “‘strong, powerful, effective, nationwide move’ to remove homosexuality from the definition of moral turpitude” and “to lessen restrictions on homosexual activity” in general. “In four or five years,” she predicted, “you will be able to look around and see what’s happening and be proud of what we did.”

Especially in historical context, the legislative purpose of H.B. 1629 was clear. Like the Briggs Initiative, the bill specifically targeted speech that was likely to come “to the attention of school children” and speech that was “of a repeated or continuing nature which tends to en­courage or dispose school children toward similar conduct.” Like Bryant and Briggs, the Oklahoma Legislature worried that if children learned about homosexuality from teachers, they would be more likely to become gay themselves.

4. National Gay Task Force v. Oklahoma City Board of Education. — In October 1980, the National Gay Task Force (NGTF) filed a class action lawsuit challenging the constitutionality of H.B. 1629. Two years later, a federal judge upheld H.B. 1629 by interpreting it narrowly—to apply only when a teacher’s public homosexual activity or conduct caused a “substan­tial and material disruption of the school.” Although the judge acknowledged that “[t]he Oklahoma Legislature chose to use the lan­guage ‘unfit to teach’ rather than the language ‘materially or substan­tially disrupt,’” he found that the distinction was meaningless: “It is appar­ent to this court that a teacher found unfit because of public homo­sexual activity or conduct would cause a substantial and material disrup­tion of the school.”

Near the end of his ruling, however, the judge issued a warning that proved prescient. Throughout the proceedings, the plaintiff had claimed that the statute was “overbroad” because it applied to a wide range of protected speech activities. Based on his narrow interpretation of the law, the judge found that “many of plaintiff’s fears are unwarranted.” In particular, he reassured the plaintiffs that:

The Act does not . . . allow a school board to discharge, declare unfit or otherwise discipline[:]

a heterosexual or homosexual teacher who merely advocates equality for or tolerance of homosexuality; a teacher who openly discusses homosexuality; a teacher who assigns for class study articles and books written by advocates of gay rights; a teacher who expresses an opinion, publicly or privately on the subject of homosexuality; or a teacher who advocates the enactment of laws establishing civil rights for homosexuals.

The judge warned, however, that if any of these interpretations were incor­rect, then the law would likely be unconstitutional: “If, under the Act, a school board could declare a teacher unfit for doing any of the forego­ing . . . it would likely not meet constitutional muster.”

In 1984, a divided panel of the Tenth Circuit found that H.B. 1629 was unconstitutionally overbroad. Although the court upheld the law’s provision that applied to “public homosexual activity,” it struck down the provision that applied to “public homosexual conduct.” Under the lat­ter, the court reasoned,

A teacher who went before the Oklahoma legislature or ap­peared on television to urge the repeal of the Oklahoma anti-sod­omy statute would be “advocating,” “promoting,” and “encouraging” homosexual sodomy and creating a substantial risk that his or her speech would come to the attention of school children or school employees . . . .

By way of example, the court explained that a teacher could be fired for saying, “I think it is psychologically damaging for people with homosex­ual desires to suppress those desires. They should act on those desires and be legally free to do so.” Although the court acknowledged that the law required a finding that the teacher’s conduct had an “adverse effect” on students, it noted that the law did not require “a material and substantial disruption” or even that “the teacher’s public utterance occur in the classroom.” A dissenting judge argued that because “[s]odomy is malum in se, i.e., immoral and corruptible in its nature,” any teacher who advocates sodomy in a manner that “will come to the attention of school children” is “in fact and in truth inciting school children to participate in the abominable and detestable crime against nature.”

The Tenth Circuit’s ruling was sharply criticized in Oklahoma. The fol­lowing day, The Daily Oklahoman condemned it as a “[f]urther erosion of the nation’s moral environment” that threatened to “driv[e] more fami­lies to enroll their children in private institutions.” In a mocking tone, the paper professed wonder at the court’s conclusion that “it is all right for a teacher to tell the pupils that homosexuality is an acceptable lifestyle, as long as the teacher doesn’t touch one of the children.” A week later, the Oklahoma House of Representatives adopted a resolution urging the Oklahoma Attorney General to “assume control” of the local school board’s appeal on the ground that “homosexuality is ungodly, un­natural and unclean” and an “unfit example for the children in the State of Oklahoma to follow.”

On appeal to the U.S. Supreme Court, six Justices voted to grant certi­orari. At oral argument, the school board’s attorney sought to de­fend H.B. 1629 as a measure intended to teach students “the obligation to obey the law”—in this case, the law against “criminal homosexual sod­omy.” Although many of the Justices focused on procedural issues, Chief Justice Burger seemed keen to defend the law on the mer­its, as a legitimate attempt to prevent the spread of homosexuality from teachers to students. He asked the school board’s attorney whether the state could “prohibit a school teacher from smoking in the classroom” in light of “the role model factor.” The board’s attorney agreed, “in light of the crucial value orientation function which public schools and public school teachers, who obviously act as role models to impressionable youth, are called upon to fulfill.” Quoting an opinion by Justice Frankfurter, the board’s attorney explained: “[I]n the classroom . . . the ‘law of imita­tion operates . . . .’”

Representing National Gay Task Force, law professor Laurence Tribe claimed that H.B. 1629 violated the First Amendment because “this law in effect tells teachers, you had better shut up about this subject, or if you talk about it, you had better be totally hostile to homosexuals.” Again, the Chief Justice asked whether “a legislature is entitled to take into ac­count the reality . . . that teachers in schools, particularly grade school and high school level, are role models for the pupils?” Tribe answered by referring to Ronald Reagan’s critique of the Briggs Initiative:

[W]hen President Reagan editorialized against this very law in California, about six years ago, his answer to the role model point was, first of all, as a matter of common sense, there is no reason to believe that homosexuality is something like a conta­gious disease. He quoted a woman who said that if teachers had all that much power as role models, I would have been a nun many years ago.

Justice Powell had not participated in the oral argument because he was recovering from surgery. When the remaining Justices met to dis­cuss the case, they were evenly divided. The Chief Justice, who was determined to uphold the law, asked his colleagues to have the case reargued after Justice Powell returned. They declined. On March 26, 1985, the Supreme Court announced, in a one-sentence opinion, that the judgment of the Tenth Circuit was “affirmed by an equally divided Court.”

5. A Clash of Two Movements. — The Save Our Children campaigns launched by Bryant and Briggs marked a turning point in the develop­ment of two movements—gay liberation and the religious right. During the late 1960s, both movements experienced political rebirths that sparked significant gains in the decade that followed.

The religious right began to reenter U.S. politics during this period, establishing a sprawling network of grassroots organizations across the United States. Sparked by fears of a “sexual revolution,” organizations like the Christian Crusade, the John Birch Society, and the Eagle Forum began mobilizing local residents to protect what later became known as “family values.” Throughout the nation, these groups attracted mem­bers, media, and resources by launching campaigns on a long list of top­ics related to children, sexuality, and sex—abortion, contraception, femi­nism, homosexuality, pornography, school prayer, and sex education.

Opposition to sex education played a pivotal role in the rise of the re­ligious right by helping organizations develop reliable strategies for mobilizing local communities. As sociologist Janice Irvine has explained, opponents of sex education widely circulated “depravity narra­tives” that relied on “distortion, innuendo, hyperbole, or outright fabrication” to help foster “a climate of sexual suspicion in which sex edu­cators might well be molesters . . . .” In two widely circulated narra­tives, opponents reported that one sex-education teacher had disrobed, and another had engaged in sexual intercourse, in front of students. In addition, opponents often claimed that sex-education teachers had ex­posed children to pornographic material—material that opponents would display, and read aloud, while testifying before local school boards. Although these claims were false, they provoked emotional re­sponses that were difficult to dispel. By the late 1960s, controversies about sex education had divided communities in close to forty states.

The gay liberation movement is often dated to the Stonewall riots of June 29, 1969, when LGBT bar patrons responded to a police raid by resist­ing arrest, sparking a series of public protests. In the wake of these demonstrations, gay students across the county began organizing on college campuses and taking legal action, and the gay liberation movement rapidly mobilized. By the end of 1977, sodomy laws had been repealed in twenty states, and antidiscrimination laws protecting lesbians, gay men, and bisexuals had been adopted in more than forty municipalities.

In response to the rapid gains of the gay liberation movement, reli­gious conservatives began to subtly transform anti-LGBT rhetoric during the 1970s. Before Stonewall, opponents had played to the public’s fears of molestation and seduction—LGBT adults initiating children into homo­sexuality by engaging in sexual relations with them. After Stonewall, opponents sought to appeal to a broader audience by developing claims about gay advocacy, recruitment, and role modeling—claims that played to similar fears without explicitly portraying LGBT people as child molesters.

By the late 1970s, figures like Anita Bryant, John Briggs, and Mary Helm were ideally positioned to draw upon depravity narratives about sex education to popularize this new paradigm in anti-LGBT rhetoric. By launching campaigns to “Save Our Children” from “homosexual teach­ers,” they wove together old fears of sex educators and LGBT people as child molesters with new fears of LGBT people as advocates, recruiters, and role models. By deploying these rubrics, they presented the potent specter of compulsory “homosexual education” in public schools.

B. The HIV Epidemic Triggers a Wave of Anti-Gay Curriculum Laws, 1986–1996

In the early 1980s, two developments undermined the religious right’s traditional opposition to sex education—the rise of abstinence edu­cation and the spread of the HIV epidemic. By the late 1980s, these developments brought about a paradigm shift in sex-education debates, which inspired many states to adopt new sex-education and HIV-education laws. In more than a dozen states, these new laws included anti-gay language. The inclusion of such language reflected a national backlash against the gay liberation movement, as well as a specific back­lash against the adoption of inclusive anti-bullying curricula in urban schools.

1. Abstinence Education. — The religious right burst onto the national political landscape in 1980, claiming an influential role in the election of Ronald Reagan. The following year, President Reagan signed the Adolescent and Family Life Act (AFLA), which sought to promote abstinence among adolescents. Although AFLA was designed as an antiabortion law, it established the first source of federal funding for abstinence-education programs —programs designed “to prevent adolescent sexual rela­tions” by “developing strong family values” rather than providing family-planning services. In a significant departure, AFLA’s sponsors presented abstinence education as an alternative to comprehensive sex education, rather than a rejection of sex education itself. In response to AFLA’s funding, religious conservatives began to develop a new industry of abstinence-education programs. In this period, the debate began to shift from whether sex education should be taught to which curriculum should be offered.

2. HIV Education. — The spread of HIV further consolidated support for abstinence-education programs. During the early 1980s, thousands of people died of HIV in the United States, but the syndrome was widely dismissed as a “homosexual” disease. Throughout this period, President Reagan remained silent about the HIV epidemic and prohibited the Surgeon General, C. Everett Koop, from publicly addressing it. By 1985, however, the death toll was rapidly rising, and pressure was mounting on officials to act.

In February 1986, President Reagan authorized the Surgeon Gen­eral to issue a report to the public on AIDS. Given Koop’s background as an evangelical Christian and antiabortion activist, the President likely expected him to issue a report in line with the Administration’s conservative policies. In October 1986, the Surgeon General shocked his conservative supporters by declaring that “[e]ducation concerning AIDS must start at the lowest grade possi­ble . . . .” In the Surgeon General’s view, the spread of HIV had settled the country’s debates about sex education and the discussion of homosex­uality in public schools: “There is now no doubt that we need sex education in schools and that it include information on heterosexual and homosexual relationships.” In a rebuke to the religious right, he declared that “our reticence in dealing with the subjects of sex, sexual practices, and homosexuality” was preventing “our youth” from receiving “information that is vital to their future health and well-being.” “This silence must end,” he declared: “We can no longer afford to sidestep frank, open discussions about sexual practices—homosexual and hetero­sexual.” Two years later, Congress took the dramatic step of mailing a summary of the Surgeon General’s report to every household in the United States.

Religious conservatives sharply criticized the Surgeon General’s re­port, deriding his HIV-education program as “the teaching of safe sod­omy” and suggesting that his report “looks and reads like it was edited by the Gay Task Force.” Calling for mandatory HIV testing and the mass quarantine of HIV patients, they claimed that HIV was a form of divine punishment for the sin of homosexual behavior. In the end, how­ever, the religious right was not able to resist the widespread adop­tion of HIV- and sex-education laws in the United States. By 1990, all fifty states had adopted HIV-education laws and at least forty states had adopted sex-education laws.

3. Anti-Gay Curriculum Laws. — Although religious conservatives did not prevent the adoption of HIV- and sex-education laws, they had a pro­found impact on how these laws were drafted. In one state after another, they fought for the inclusion of anti-gay provisions within HIV- and sex-education laws, rather than opposing the passage of these laws alto­gether. They were often, though not always, successful.

In 1987 and 1988, nine states adopted anti-gay curriculum laws. Be­tween 1989 and 1996, another seven states adopted them. All told, sixteen states adopted a total of twenty anti-gay sex-education and HIV-education laws in a period of nine years. In many instances, these were the state’s first laws discussing sex education of any kind. In one form or another, they all facially discriminated against homosexuality—as an unac­ceptable “lifestyle,” a cause of HIV, a “criminal offense,” or sexual activity outside of “marriage.” In the last thirty years, only one of these states—California—has repealed all of the anti-gay language contained in its curriculum laws.

Oklahoma was at the forefront of this anti-gay trend, as it had been in the late 1970s. Within months of the Surgeon General’s AIDS report, the Oklahoma Legislature passed H.B. 1476, one of the country’s first HIV-education laws. In contrast to H.B. 1629—Oklahoma’s first anti-gay curriculum lawH.B. 1476 was adopted by narrow margins after an “emotional” debate. One of the bill’s opponents handed out “explicit” materials from San Francisco, which ‘“crudely’” depicted “homosexual and heterosexual practices,” arguing that “lawmakers might be voting to expose students to similar language.” Another objected, “If you really want to stop it, are you going to tell these children that homosexuality is not the way to go?” In response to these objections, newspaper cover­age emphasized that “the disease is spreading among heterosexuals” and that “[t]he core curriculum being proposed for Oklahoma schoolchildren stresses the avoidance of homosexual or promiscuous sexual activity, as well as the shared use of needles for intravenous drug use.” Although these aspects of the bill mollified some opponents, others still worried that “[t]o some children, the information might be titillating and lead them to want to experiment.”

Similar objections were raised in other states. In Louisiana, the spon­sor of a sex-education bill sought to clarify that the legislation “does not mandate sex education,” “has nothing to do with abortions,” and “has nothing to do with homosexuals.” In addition, the sponsor noted that under the bill’s provisions, “you can’t use any material that talks about homosexual conduct.” In response, opponents claimed that the bill would allow schools to teach material that explicitly depicted homosexual­ity, masturbation, and sexual intercourse and portrayed homo­sexual and heterosexual sex in comparable terms. After reading several passages aloud from a teacher’s manual, one opponent declared: “Homosexual love is stated as a way that people can have intercourse and not have babies, so now homosexual love is a contraceptive.”

In several states, local conservative groups lobbied for the inclusion of “anti-homo” provisions—language that affirmatively required teachers to disparage same-sex relationships as immoral, criminal, or dangerous. In Alabama, newspapers consistently identified “the conservative Eagle Forum” as the source of S.B. 72, “a bill that would require sex education courses in public schools to include instruction that homosexual conduct is a crime.” A similar proposal failed in South Carolina, even as other anti-gay provisions were added to the state’s curriculum laws.

Throughout this period, many conservatives continued to resist the adoption of mandatory HIV-education laws. In 1991, Republicans in the Arizona Legislature added several anti-gay provisions to an HIV-education bill, although they remained “vehemently opposed” to it. As the spon­sor of these amendments explained: “Many people today still believe that homosexuality is not a positive, or even an alternative, lifestyle . . . . Medical science has shown that there are no safe methods of homosexual sex.”

Nearly all of these statutes required teachers to emphasize absti­nence from sexual activity until “marriage.” In a few states, legislators chose to modify the term “marriage” with “heterosexual.” In hind­sight, this may seem like a puzzling step, given that same-sex marriage would not become legal in any state for another twenty-five years. But by the late 1980s, the legalization of same-sex marriage was already on the national radar. The first same-sex marriage lawsuits had been filed in the early 1970s, and the issue was litigated periodically throughout the 1980s and 1990s. In the meantime, same-sex couples were performing “marriage” ceremonies, even though the resulting unions were not le­gally valid. By specifying that they were referring to “heterosexual mar­riage,” some legislatures chose to eliminate any potential ambiguity in state curriculum laws.

4. Inclusive Curricula. — Until this period, LGBT organizations had not attempted to advocate for the rights of LGBT students in elementary or secondary schools or the inclusion of LGBT issues in public school curricula. But in 1984, Congress passed the Equal Access Act, a law that required federally funded schools to provide equal access to extracurricu­lar student clubs. Although Senator Orrin Hatch had intro­duced the law to support Bible study groups, it served as a bulwark for LGBT student organizations in the coming years.

Shortly after the passage of the Equal Access Act, a Los Angeles teacher founded Project 10, the country’s first school program devoted to supporting lesbian, gay, and bisexual students. The program was founded in response to an incident involving a gay male student who had dropped out of high school after being repeatedly harassed by classmates and teachers. Named after Alfred Kinsey’s estimate that ten percent of the popula­tion is “exclusively homosexual,” the program was conceived as “an in-school counseling program providing emotional support, infor­mation, resources, and referrals to young people who identified them­selves as lesbian, gay or bisexual” and an attempt “to heighten the school community’s acceptance of and sensitivity to gay, lesbian, and bisexual issues.”

Project 10 drew national media attention and became a popular tar­get of religious conservatives lobbying for the passage of anti-gay curriculum laws. In 1988, the Traditional Values Coalition cited Project 10 as the justifica­tion for S.B. 2807—one of two anti-gay curriculum bills that the Traditional Values Coalition sponsored in California that year. The first bill, S.B. 2394, required that in HIV-education classes, “[c]ourse material and instruction shall teach honor and respect for heterosexual mar­riage.” The second bill, S.B. 2807, prohibited public schools from operat­ing any “program . . . that encourages or supports any sexual life­style that may unduly expose a minor to contracting AIDS, or . . . sug­gest[s] that such a lifestyle is a positive one.” Only the first bill was adopted, after a heated debate about whether it was “an unconstitutional establishment of religious doctrine” and whether it would stigmatize “stu­dents whose families do not conform to the ‘preferred’ lifestyle.”

The following year, a similar attack on Project 10 led the Texas Legislature to adopt one of the country’s most virulently anti-gay curriculum laws. In two legislative committee hearings, David Muralt, the Texas Director of a conservative religious group known as Citizens for Excellence in Education, proposed an amendment to the state’s new HIV-education bill, based on guidelines that had been adopted by a San Antonio school district. Under these guidelines, sex-education pro­grams “shall support sexual abstinence before marriage and fidelity in marriage as the expected standard,” “shall not represent homosexuality as a normal or acceptable lifestyle,” “and shall not explicitly discuss homo­sexual practices.”

To explain the necessity of these guidelines, Muralt began his testi­mony by declaring that “Project 10 is on the way to Texas,” “because the National Education Association last summer voted two-to-one to adopt Project 10 in all schools in this nation.” In Muralt’s account, Project 10 was “pioneered by a lesbian, avowed lesbian teacher,” and “it has spread now to about a third of the schools in Los Angeles.” He argued that by “telling our students in public school that one out of ten of you is a homo­sexual or a lesbian[,] . . . [Project 10] gives the impression that they were born this way rather than learning the lifestyle.” After reading aloud from Project 10 materials, he warned that “homosexual counselors are getting into the public schools . . . and they’re really spreading their lifestyle, and it’s just counterproductive to what we’re trying to do to end AIDS.” Muralt’s guidelines were not only adopted by the bill’s spon­sors but also added to other Texas and Alabama HIV-education and sex-education laws in future years.

In addition to state legislatures, local school boards witnessed a num­ber of controversies over the inclusion of “homosexuality” in public school curricula. In 1989, New York City educators began drafting a curriculum known as Children of the Rainbow, with the primary goal of teach­ing first graders to respect the city’s many racial and ethnic groups. In a section on the diversity of families, the curriculum urged teachers to include references to lesbian and gay people and to teach children that some people are gay and should be respected like everyone else. Although these passages appeared in only three of the curricu­lum’s 443 pages, one district’s school board president called them “dan­gerously misleading lesbian/homosexual propaganda” and accused the New York City Chancellor of perpetrating “as big a lie as any concocted by Hitler or Stalin.” Playing on historical tensions between racial and sexual minorities, she claimed that the Rainbow curriculum would “de­mean our legitimate minorities, such as Blacks, Hispanics, and Asians, by lumping them together with homosexuals.” After a battle between the Board and the Chancellor, the curriculum was shelved and the Chancellor was dismissed, providing a highly publicized, cautionary tale for educators in other districts.

In Merrimack, New Hampshire, a conservative school board chair sought to capitalize on the conflict over Children of the Rainbow, but his effort ultimately backfired. Initially, the chair had persuaded his col­leagues to pass a broad policy that prohibited any instruction or counsel­ing that had “the effect of encouraging or supporting homosexuality as a positive lifestyle alternative.” In response, students threatened to wear black armbands and pink buttons until the policy was repealed, and pro­testers held the city’s first gay rights rally in the school’s parking lot. In the next election, the chair and his allies were defeated, and the policy was repealed by the new school board.

C. The Adoption of Abstinence-Until-“Marriage” Laws, 1996–2016

In 1996, the landscape for federal abstinence education fundamen­tally shifted when President Clinton signed laws that codified definitions of “abstinence education” and “marriage.” At the behest of the reli­gious right, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) established a new stream of $50 million per year in federal funding for abstinence education for a period of five years, which became known as Title V of the Social Security Act. States that chose to accept Title V funds were required to match every four fed­eral dollars with three state-raised dollars and were then responsible for using or distributing the funds. With the exception of California, every state has accepted Title V abstinence-only-until-marriage funds in at least one year since the law was adopted.

During the same period, six states adopted new anti-gay curriculum laws. Each of these laws refers to abstinence until “marriage,” rather than using inherently discriminatory terms, like “homosexual” or “hetero­sexual.” Like most of the anti-gay curriculum laws passed in earlier years, most of these laws have not been repealed or challenged yet.

The legislative debates about abstinence-until-marriage laws were pri­marily focused on broader concerns about teenage pregnancy and out-of-wedlock childbirth, rather than specific concerns about the “promo­tion” of “homosexuality” in schools. But there was no question that the sponsors of PRWORA and DOMA shared a deep commitment to promoting the traditional definition of “marriage.” And in the congres­sional debates over DOMA, the bill’s sponsors emphasized the lessons that they sought to impart to “the children of America.” By pos­ing a series of rhetorical questions, Representative Charles Canady sig­naled that the law was designed to channel children into heterosexual relationships:

Should this Congress tell the children of America that it is a matter of indifference whether they establish families with a partner of the opposite sex or cohabit with someone of the same sex? Should this Congress tell the children of America that we as a soci­ety believe there is no moral difference between homosexual rela­tionships and heterosexual relationships? Should this Congress tell the children of America that in the eyes of the law the parties to a homosexual union are entitled to all the rights and privileges that have always been reserved for a man and woman united in marriage?

In a legislative report supporting the bill, Representative Canady cau­tioned his colleagues “against doing anything which might mislead waver­ing children into perceiving society as indifferent to the sexual orientation they develop,” in order to protect society’s interest “in reproducing it­self.”

In 1999, Congress established yet another funding stream for absti­nence-until-marriage programs. Initially known as Special Projects of Regional and National Significance—Community-Based Abstinence Education (SPRANS), the program bypassed the states, providing federal grants directly to abstinence-education providers. Programs funded under SPRANS were required to conform with the eight-point definition of “abstinence education” in Title V. Unlike other programs, however, SPRANS programs were required to document that they were not only “consistent with” but also “responsive to” each of the definition’s eight elements. Under the George W. Bush Administration, annual funding for SPRANS programs grew from $20 million to $113 million, resulting in annual spending of more than $175 million on abstinence-education pro­grams.

In the Bush Administration’s second term, opponents of abstinence education began to push back. In 2004, a report commissioned by Representative Henry Waxman found that over two-thirds of SPRANS programs were using curricula with “multiple scientific and medical inac­curacies,” including “misinformation about condoms, abortion, and basic scientific facts.” Three years later, a study mandated by Congress found that Title V programs had no significant impact on young people’s sexual behavior, whether measured by the age of first intercourse or the number of sexual partners. By the time that President Bush left office, nearly half of the states had declined to apply for Title V funding, and the program was scheduled to expire.

In his first budget proposal, President Obama sought to eliminate all federal funding for abstinence-education programs and establish new funding for comprehensive sex-education programs. Although Congress agreed to eliminate AFLA and SPRANS funding, it has repeat­edly refused to eliminate Title V funding. In 2010, the Affordable Care Act extended Title V funding for five years. In 2015, the Medicare Access and CHIP Reauthorization Act increased Title V funding from $50 million to $75 million for an additional two years.

D. Recent Challenges

In the last decade, the LGBT movement has begun to chip away at the underpinnings of anti-gay curriculum laws, while lobbying state legisla­tures for the inclusion of LGBT issues in public school curricula. In 2008, a group of Florida high school students won a lawsuit to estab­lish a gay–straight alliance, overcoming the school board’s objection that the group violated the district’s “abstinence-only sex education policy” because same-sex marriage was not legal in Florida. In 2011, California adopted the FAIR Education Act, the country’s first legislation that affirma­tively requires “a study of the role and contributions of . . . les­bian, gay, bisexual, and transgender Americans” to be included in the curricula of the state’s public schools. In 2012, a group of Minnesota students settled a lawsuit alleging that a local school board’s “Sexual Orientation Curriculum Policy”—which explicitly prohibited the discus­sion of “sexual orientation” in classes on any subject—violated Title IX and the Equal Protection Clause. The following year, two students in Utah settled an as-applied challenge to the state’s curriculum law, claim­ing that a local school district had violated the First Amendment by remov­ing In Our Mothers’ House—a children’s book about lesbian parents—from public school libraries.

Most recently, in October 2016, a group of Utah students and Equality Utah, the state’s largest LGBT rights organization, filed a facial challenge to Utah’s anti-gay curriculum laws. In March 2017, the Utah Legislature responded by repealing the state’s statutory prohibition against “the advocacy of homosexuality” in public schools. Shortly there­after, the Utah State Board of Education repealed similar language in the state’s administrative rules and issued a letter clarifying that discrimination based on sexual orientation and gender identity is prohibited in the state’s public schools.

III. Justiciability: Prior Adjudication and Ongoing Enforcement

After the Supreme Court’s invalidation of anti-gay sodomy and mar­riage laws, the prevalence and persistence of anti-gay curriculum laws is anomalous and surprising. This anomaly often prompts two skeptical but instructive questions about the enforcement of anti-gay curriculum laws: (1) whether officials still have the legal authority to enforce these laws, even though they often refer to sodomy and marriage laws that have already been declared unconstitutional; and (2) whether officials still have the political will to enforce these laws, even after the legalization of same-sex intimacy and same-sex marriages. Procedurally, both ques­tions speak to the justiciability of constitutional challenges to anti-gay curriculum laws. If anti-gay curriculum laws were not enforced, then no one would have standing to challenge them, and federal courts would lack jurisdiction to review them.

As this Part explains, however, officials still have the legal authority to enforce anti-gay curriculum laws because no court has yet enjoined them from doing so. By surveying the available evidence from state and federal regulations and guidelines, and from local media coverage and court filings, this Part shows that at least some jurisdictions may still be enforcing these laws, in spite of the Supreme Court’s invalidation of anti-gay sodomy and marriage laws.

A. Prior Adjudication

Many anti-gay curriculum laws include provisions referring to anti-gay sodomy laws and anti-gay marriage laws. In Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges, the Supreme Court ruled that anti-gay sodomy and anti-gay marriage laws are unconstitutional. This raises a question akin to res judicata : Do state and federal officials still have the legal authority to enforce these provisions of anti-gay curricu­lum laws, even though they explicitly refer to other laws that have already been declared unconstitutional?

The laws of Texas pose this question in an especially stark manner. The state’s curriculum law requires teachers to instruct students that “ho­mosexual conduct is a criminal offense under Section 21.06 [of the] Penal Code.” Section 21.06 prohibits “deviate sexual intercourse with another individual of the same sex.” In Lawrence v. Texas, the Supreme Court ruled that Section 21.06 is unconstitutional. After Lawrence, does the state of Texas still have the legal authority to rely on Section 21.06 in the state’s curriculum law, by teaching students that “homosexual con­duct is a criminal offense under Section 21.06”? Or is the state’s en­forcement of this curriculum provision barred by the Court’s ruling in Lawrence?

A similar question arises from the relationship between anti-gay cur­riculum laws and anti-gay marriage laws. For example, Ohio’s curriculum law requires teachers to “[s]tress that students should abstain from sex­ual activity until after marriage” and “[t]each the potential physical, psychological, emotional, and social side effects of participating in sexual activity outside of marriage.” Ohio’s marriage law provides that “[a] marriage may only be entered into by one man and one woman” and “[a]ny marriage between persons of the same sex shall have no legal force or effect in this state.” In Obergefell v. Hodges, the Supreme Court ruled that these provisions of Ohio’s marriage law are unconstitutional. After Obergefell, does the state of Ohio still have the legal authority to rely on these provisions, by teaching students that the state’s definition of “mar­riage” does not include two persons of the same sex? Or is the state’s enforcement of this curriculum provision barred by the Court’s ruling in Obergefell? One could ask a nearly identical question about the meaning of the term “marriage” in Section 510(b) of the Social Security Act and the Defense of Marriage Act, in light of the Court’s ruling in United States v. Windsor.

Before considering the relief granted by the Court in Lawrence, Windsor, and Obergefell, it is helpful to recall a few general principles of civil procedure and constitutional law. First, under the doctrine of res judicata, when par­ties have litigated a claim, and the claim has been adjudicated by a court, it may not be pursued further by the same parties. Second, under the doctrine of separation of powers, courts have the power to declare stat­utes unconstitutional and to enjoin the enforcement of statutes, but they do not have the power to amend or repeal the language of stat­utes. Finally, statutes are generally presumed to be constitutional, until they have been challenged by a party and declared unconstitutional by a court. However logical it may sound, there is no exception to these rules that applies when one statute has been declared unconstitutional and another statute continues to rely upon it. In each case, the question is always whether a court has already granted relief by enjoining the en­forcement of the challenged law.

With these principles in mind, it becomes easy to see that neither the declaratory nor the injunctive relief granted in Lawrence, Windsor, and Obergefell directly prohibits officials from enforcing anti-gay curricu­lum laws. None of the issues are covered by res judicata, because none of the parties in these cases were students or teachers, and the Supreme Court did not adjudicate the definition of “sodomy” or “marriage” in the context of any jurisdiction’s curriculum laws. In each case, the Court de­clared that specific applications of the challenged law were unconstitu­tional, but it could not have amended or repealed the definition of “sod­omy” or “marriage” contained in any jurisdiction’s sodomy or marriage laws.

In all three cases, the Court spoke in terms of the law’s application to the plaintiffs before it and to other same-sex couples who were simi­larly situated. In Lawrence, the Court observed that the case did not in­volve a marriage, or an intimate relationship involving a minor, but ra­ther “two adults who, with full and mutual consent from each other, en­gaged in sexual practices common to a homosexual lifestyle.” In Windsor, the Court noted that the challenged law had targeted “same-sex marriages made lawful by the State” and that “[t]his opinion and its holding are confined to those lawful marriages.” In Obergefell, the Court held that state laws against same-sex marriage were “invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” On remand, the lower courts entered declaratory judgments and injunctions prohibiting offi­cials from applying the laws to the plaintiffs and to all same-sex couples who were similarly situated.

Of course, I do not mean to suggest that Lawrence, Windsor, and Obergefell have no bearing on the constitutionality of anti-gay curriculum laws. To say that the relief granted in Lawrence, Windsor, and Obergefell was limited is not to say that the reasoning was limited. On the contrary, Part IV argues that anti-gay curriculum laws violate the equal protection princi­ples articulated by the Supreme Court in Romer, Lawrence, Windsor, and Obergefell. As Justice Scalia predicted in his dissenting opinions, the reasoning in Lawrence foretold the result in Windsor; and the reasoning in Windsor foretold the result in Obergefell. If federal courts faithfully apply the reasoning of these cases, they will be compelled to strike down anti-gay curriculum laws under the Equal Protection Clause. But it is one thing to say what federal courts will do, and another to say what they have done. For the moment, officials still have the legal authority to enforce anti-gay curriculum laws because no court has enjoined them from doing so.

B. Ongoing Enforcement

Legal authority is not political will. Even if officials still have the au­thority to enforce anti-gay curriculum laws, they may choose not to do so. To provide a preliminary analysis of the ongoing enforcement of anti-gay curriculum laws, this section surveys evidence available from state and federal regulations and guide­lines, as well as anecdotal evidence from local media coverage and court filings.

1. Evidence from the States. — To begin this analysis, this section sur­veys the available evidence from the twenty states that currently have anti-gay curriculum laws to determine whether: (1) the state’s education regula­tions include anti-gay language; (2) the state’s curriculum guide­lines include anti-gay language; and (3) the state’s curriculum guidelines exclude or demean LGBT identities by failing to include any nonderogatory references to sexual orientation, gender identity, or same-sex relationships.

Table 2. Evidence Regarding State Enforcement of Anti-Gay Curriculum Laws

State Education Regulations Contain

Anti-Gay Language Curriculum Guidelines Contain Anti-Gay Language Curriculum Guidelines Exclude or Demean

LGBT

Identities Alabama ✓ ✓ Arizona ✓ ✓ Arkansas ✓ Florida ✓ ✓ Illinois ✓ Indiana ✓ Louisiana ✓ ✓ Michigan ✓ Mississippi ✓ ✓ ✓ Missouri ✓ North Carolina ✓ ✓ North Dakota ✓ Ohio ✓ ✓ Oklahoma ✓ ✓ South Carolina ✓ ✓ Tennessee ✓ Texas ✓ ✓ ✓ Utah ✓ ✓ Virginia Wisconsin

Two findings emerge from this evidence. First, in eleven of twenty states, anti-gay language has been codified in the state’s education regula­tions, in the state’s curriculum guidelines, or in both sources. Second, in eighteen of twenty states, the state’s curriculum guidelines have effec­tively excluded LGBT identities by failing to include any nonderogatory references to sexual orientation, gender identity, or same-sex relation­ships. The first finding indicates that in eleven states, the state’s educa­tion department has taken at least one concrete step toward enforcing the state’s anti-gay curriculum statute. The second finding suggests that even if a state’s guidelines do not contain explicit anti-gay language, they may still have a discriminatory impact on the inclusion of LGBT identities in the curriculum of public schools.

Like the codification of anti-gay language, the exclusion of LGBT iden­tities from state curriculum guidelines likely indicates the enforcement of anti-gay curriculum laws. A survey of the curriculum guidelines in all fifty states reveals a strong correla­tion between the exclusion of LGBT identities and the presence of anti-gay curriculum laws. In sixteen of the thirty states (53%) that do not have anti-gay curriculum laws, the state’s curriculum guidelines include nonderogatory references to sexual orientation, gender identity, or same-sex relationships. By contrast, similar references appear in only two of the twenty states (10%) that have anti-gay curriculum laws.

A survey of local news and court filings yields additional, anecdotal ev­idence of ongoing enforcement from these twenty states. In the last five years, newspapers and courts in these jurisdictions have reported many instances in which public school teachers have been disciplined, suspended, terminated, or pressured to resign for engaging in a wide range of pro-LGBT activities: reading a children’s book about two princes marrying each other, teaching students about LGBT bullying, advocat­ing for policies that protect LGBT students, sponsoring the for­mation of gay–straight alliances, allowing students to publish pro-gay editorials in the student newspaper, allowing students to put up dis­plays honoring LGBT History Month, and simply living a lesbian “life­style.”

The following sections present case studies from Utah and Wisconsin as examples of strong and weak enforcement patterns. These case studies demonstrate a broad range of enforcement patterns within which the remaining states are likely to fall.

a. Utah: Strong Enforcement. — As previously noted, a lawsuit challenging the constitutionality of Utah’s anti-gay curriculum laws was filed in October 2016. Shortly after the lawsuit was filed, I conducted a comprehensive search of the Utah state archives, sought records from each of the state’s forty-one school districts, and interviewed the individ­ual plaintiffs in the lawsuit itself, to assess the extent to which the state of Utah has enforced these laws. This research produced overwhelming evidence of the state’s ongoing enforcement of anti-gay curriculum laws.

As early as 1985, the Utah State Board of Education began warning teachers against the “advocacy of homosexuality” in publications about sex education and HIV education in public schools. For more than thirty years, this prohibition has been included in all of the Board’s core curriculum standards, including training materials for new teachers, parental consent forms, and resource files for teachers and parents that address HIV-education and human-sexuality instruction. In the most recent resource files, published in 2006, the Board included a state­ment in which the Utah Attorney General identified “sodomy” as a form of “immorality” and “unchastity” that teachers may not “teach, promote, or condone.”

In 2000, the State Board issued an administrative rule that estab­lished elaborate procedures for local school districts to comply with the state’s “human sexuality” curriculum law. Under this rule, each district was required to establish a “curriculum materials review committee” that “includes parents, health professionals, school health educators, and ad­ministrators, with at least as many parents as school employees,” in order to review all of the human sexuality instructional materials adopted by the district. These committees could not approve any materials, includ­ing guest speakers, unless they complied with the statute’s prohibitions. The district’s superintendent was required to “report edu­cators who willfully violate” the rule to the State Instructional Materials Commission “for investigation and possible discipline.”

The Board’s rule significantly expanded the scope of the statute’s pro­hibitions. In the curriculum statute, prohibitions against “the advo­cacy of homosexuality” and “the advocacy of sexual activity outside of marriage” appeared in a section titled “Instruction in health,” suggesting that they applied only in health education and related courses. By con­trast, the Board’s rule applied to “any course, unit, class, activity or presen­tation that provides instruction or information to students about sexual abstinence, human reproduction, reproductive anatomy, physiol­ogy, pregnancy, marriage, childbirth, parenthood, contraception, or HIV/AIDS and other sexually transmitted diseases.” Although the rule noted that these topics were typically addressed in health education and related courses, it explicitly applied “to any course or class in which these topics are the focus of discussion.”

Local school districts have adopted policies that provide additional ev­idence of the enforcement of the state’s anti-gay curriculum laws. Nineteen school districts have policies that quote the State Board’s rule against “the advocacy of homosexuality” and “the advocacy of sexual activ­ity outside of marriage.” In three districts, the policies prohibit not only “the advocacy of” but also “the acceptance of . . . homosexuality as a desirable or acceptable sexual adjustment or lifestyle.” Nearly all of the remaining districts have policies that either specifically cite statutes or rules prohibiting “the advocacy of homosexuality” or otherwise indicate that the district’s human-sexuality curriculum complies with all of the state’s statutory and regulatory requirements.

The lawsuit filed against the Utah State Board of Education yielded further examples of how the state’s curriculum statutes and regulations have been enforced. One high school student reported that on the first day of health class, her teacher handed out a document listing topics that could not be discussed, including “homosexuality” and “sexual activ­ity outside of marriage.” When another student asked if same-sex mar­riage would be discussed, the teacher said, “No.” Another high school student reported that his English teacher had discouraged him from writ­ing a family history report about his gay uncle, who was married to another man. The teacher told him that if he insisted on choosing his uncle, he would have to present his family history only to her after class, unlike the rest of his classmates.

The most dramatic example of Utah’s enforcement was described in a newspaper article in the Salt Lake Tribune. In 2014, the Tribune reported that the Canyons School District had “shelved” 315 cop­ies of a custom-edition health textbook, purchased at a cost of $24,000, because the book discussed “gay and lesbian partnerships” and other pro­hibited topics. By conducting anonymous interviews, I was able to obtain a copy of the textbook. The cover reads: “Health: The Basics, Rebecca J. Donatelle, Custom Edition for Canyons School District.” In a chapter on “Building Healthy Relationships and Understanding Sexuality,” a district official had made the following markings to indicate the specific materials that the district’s review committee had rejected, pursuant to the state’s curriculum law :

It is difficult to imagine more compelling evidence of a state’s en­forcement of an anti-gay curriculum law: a public school’s health textbook in which ver­bal and visual depictions of lesbian, gay, and bisexual people and orienta­tions have been literally marked for deletion by school district officials.

b. Wisconsin: Weak Enforcement. — Wisconsin’s pattern of enforce­ment is markedly different from Utah’s. On the books, Wisconsin law still facially discriminates against lesbian and gay students by excluding same-sex couples from “marriage”—the only sexual relationships that the state’s curriculum law officially sanctions. But the state’s education regu­lations and curriculum guidelines provide no evidence that the anti-gay provisions of the state’s curriculum law have ever actually been enforced.

Wisconsin’s curriculum law requires instruction that “[p]resents abstinence from sexual activity as the preferred choice of behavior for unmarried pupils” and “[e]mphasizes that abstinence from sexual activ­ity before marriage is the only reliable way to prevent pregnancy and sex­ually transmitted diseases, including [HIV].” In 2006, the state legislature and Wisconsin voters approved a constitutional amendment declaring that “[o]nly a marriage between one man and one woman shall be valid or recognized as a marriage in this state.”

Paradoxically, the legislature later amended the state’s curriculum law to prohibit the use of instructional materials that discriminate against students based on sexual orientation, among other traits. Although the legislature cau­tioned that this provision should not be construed to prohibit “instruc­tion on abstinence from sexual activity,” it made no attempt to reconcile the curriculum law’s pro-gay antidiscrimination provision with the state’s anti-gay definition of marriage, which remains on the books. In 2013, the Wisconsin Department of Public Instruction issued curricu­lum guidelines that included information about “sexual orientation,” “gender identity,” and same-sex relationships and specifically called for the “[i]nclusion of LGBTQ people or issues in school curricula.”

2. Evidence from the Federal Government. — The most surprising evi­dence of the ongoing enforcement of anti-gay curriculum laws comes from the U.S. Department of Health and Human Services. In the last twenty years, under both Republican and Democratic administrations, the Department has distributed federal block grants for abstinence-educa­tion programs pursuant to Title V of the Social Security Act. As previously noted, Title V provides an eight-point definition of “absti­nence education” with which states must comply in order to qualify for federal grants. The definition requires states to certify that programs funded under Title V “teach[] abstinence from sexual activity outside marriage as the expected standard for all school age children,” “teach[] that a mutually faithful monogamous relationship in context of marriage is the expected standard of human sexual activity,” and “teach[] that sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects.” In Section 3 of the Defense of Marriage Act, the term “marriage” is defined to include “only a legal union between one man and one woman as husband and wife.”

Shortly after the Supreme Court invalidated Section 3 in Windsor, President Obama directed the Department of Justice “to identify every federal law, rule, policy, and practice in which marital status is a relevant consideration, expunge Section 3’s discriminatory effect, and ensure that committed and loving married couples throughout the country would receive equal treatment.” In response, the Department of Health and Human Services issued rules and guidance about Windsor’s impact on the administration of a wide range of federal laws, programs, and organizations. As part of this effort, the Department issued specific guid­ance about Windsor’s impact on a number of federal grant programs, encouraging grantees to recognize same-sex spouses as family members and to provide equal services and support to same-sex marriages.

To date, however, the Department has not issued any guidance about Windsor’s impact on the funding or administration of “abstinence education” programs under Title V. As recently as 2016, the Department’s Title V funding announcement still warned states that “no funds can be used in ways that contradict the eight A-H components of Section 510(b)(2).” To qualify for these funds, abstinence-education providers must provide written assurances that they “understand and agree formally to the requirement of programming to not contradict sec­tion 510 (b)(2) A-H elements” and that they use only materials that “do not contradict section 510(b)(2) A-H elements.”

In fiscal year 2016, the Department distributed more than $59 mil­lion in Title V funds to thirty-five states and two U.S. territories. Two-thirds of these funds were received by states that are still governed by anti-gay curriculum laws. Unless the Department (or a third party) conducts a comprehensive review of the curricula taught by these grantees, it will be impossible to know exactly how many grantees are still excluding same-sex couples from the definition of “marriage,” thereby teaching absti­nence education in a discriminatory manner. In the past, when third par­ties have reviewed the content of abstinence-education programs, they have found that these programs systematically ignore and stigmatize same-sex relationships. Given the history of these programs—especially the religious and political affiliations of the organizations that developed them—there is little reason to presume they have been updated to in­clude nonderogatory references to same-sex relationships in response to the Supreme Court’s rulings in Windsor and Obergefell.

IV. Unconstitutionality: A Denial of Equal Protection of the Laws

The question of constitutionality has hovered over anti-gay curriculum laws since they were first adopted. In National Gay Task Force, the district court suggested that if Oklahoma’s law were used to discipline a “teacher who merely advocates equality . . . openly discusses homosexual­ity . . . [or] assigns for class study articles and books written by advocates of gay rights[,] . . . it would likely not meet constitutional muster.” However, the Tenth Circuit observed that Oklahoma’s “statute does not require that the teacher’s public utterance occur in the class­room”—suggesting that if the law had been limited to the classroom, it might have been constitutional.

More than twenty years later, this question remains unresolved. To date, no court has had an opportunity to address it. Meanwhile, legal schol­ars have published a handful of articles on the constitutionality of anti-gay curriculum laws. This literature relies on a range of conflicting legal theories, some of which are based on sharply contested interpreta­tions of the Equal Protection Clause and the Free Speech Clause. For example, authors disagree about whether anti-gay curriculum laws should be subject to heightened scrutiny, “rational review with a bite,” or traditional rational basis review. One author claims that “the strongest potential challenge to these statutes would be a teacher’s First Amendment claim,” while another concludes that “‘no promo homo’ laws are likely valid under the First Amendment.” In light of these con­flicts, the moment is ripe for a thorough analysis of the relevant case law, focused on specific rulings of the Supreme Court.

This Part focuses on the equal protection challenge to anti-gay curricu­lum laws, rather than the free speech challenge. The equal protec­tion challenge is more relevant to a national campaign against anti-gay curriculum laws for both pragmatic and doctrinal reasons. First, the equal protection challenge targets a single quality shared by all anti-gay curriculum laws: the fact that they facially discriminate against les­bian, gay, and bisexual people. By contrast, the free speech challenge depends on the specific meaning and scope of each state’s anti-gay curricu­lum law—issues that vary significantly from one jurisdiction to another. Second, the equal protection challenge is based on a con­sistent trend in the Court’s analysis of anti-gay laws. In four rulings issued over the last two decades—Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges —the Court has invalidated every anti-gay law that has come before it, without specifying the level of scrutiny that applies to such laws. Although the Court primarily analyzed two of these cases under a due process framework, rather than an equal protection framework, the Court expressly endorsed the equal protec­tion claims brought in all four cases. By relying on the principles articu­lated in these cases, this Part explains why the equal protection chal­lenge is likely to prevail in all jurisdictions, regardless of what level of scrutiny is applied to anti-gay curriculum laws.

A. Standing: Injury and Stigma

Before a court will hear a challenge to an anti-gay curriculum law, it must be persuaded that the plaintiffs have standing to challenge it. To establish standing to challenge a law under the Equal Protection Clause, the Supreme Court has required plaintiffs to show that they have been personally injured or stigmatized by the law’s enforcement.

In Romer, Lawrence, Windsor, and Obergefell, the Court specifically found that anti-gay laws “injure” and “stigmatize” lesbian, gay, and bisex­ual people. In Romer, the Court found that the challenged law “inflicts on [gays and lesbians] immediate, continuing, and real injuries” and “clas­sifies homosexuals . . . to make them unequal to everyone else.” In Lawrence, the Court found that the challenged law “demean[ed] the lives of homosexual persons” and was “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” In Windsor, the Court held that the challenged law had “the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect.” And in Obergefell, the Court held that “laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.” Addition­ally, in both Windsor and Obergefell, the Court found that anti-gay marriage laws “humiliate” the children of same-sex couples by making it “more difficult for the children to understand the integrity and close­ness of their own family and its concord with other families in their com­munity and in their daily lives.”

The same reasoning applies to anti-gay curriculum laws. By restrict­ing classroom instruction about “homosexuality,” these laws instruct les­bian, gay, and bisexual students, and students raised by same-sex couples, that “homosexuality” is too shameful, immoral, or unlawful to be dis­cussed on the same terms that heterosexuality is discussed. In some in­stances, the stigma imposed by anti-gay curriculum laws is explicitly conveyed in the statute itself. In Texas, for example, the law requires teach­ers to instruct students that “homosexuality is not a lifestyle accepta­ble to the general public and that homosexual conduct is a criminal offense.” In Oklahoma, the law requires teachers to instruct students that “homosexual activity” is “primarily responsible” for contact with “the AIDS virus.”

In other instances, the stigma arises from the interplay between a state’s curriculum law and its sodomy or marriage laws. Mississippi, for example, requires instruction in “the current state law related to . . . homo­sexual activity,” while defining sodomy as “the detestable and abominable crime against nature,” punishable by a term of imprison­ment up to ten years. Similarly, Utah prohibits teachers from using “any means or methods that facilitate or encourage the violation of any state or federal criminal law by a minor or an adult,” while defining sodomy as a Class B misdemeanor. To the extent that a state’s curricu­lum laws enforce these unconstitutional provisions, they too “demean the lives of homosexual persons,” like the sodomy laws to which they refer.

The same reasoning applies to the seventeen states that require in­struction on the benefits of “abstinence from sexual activity outside of marriage,” while defining the term “marriage” to exclude same-sex cou­ples. To the extent that the states’ curriculum laws enforce these uncon­stitutional provisions, they impose many of the same stigmas identi­fied in Windsor and Obergefell: “a stigma upon all who enter into same-sex marriages” and a stigma on all children raised in such mar­riages. Moreover, as one lower court explained in another marriage case, these laws impose a related stigma on lesbian and gay children, “who will grow up with the knowledge that the State does not believe they are as capable of creating a family as their heterosexual friends.”

On top of these insults, anti-gay curriculum laws inflict more tangi­ble injuries. As a pedagogical matter, these laws deny lesbian, gay, and bisexual students the opportunity to learn basic information about their own attractions, relationships, and identities, as heterosexual students do. Likewise, these laws deny the children of same-sex couples the chance to learn about their own family members, as the children of differ­ent-sex couples do. Under many of these laws, teachers appear to be facially prohibited from instructing students that same-sex couples may exercise “the fundamental right to marry,” notwithstanding the Court’s ruling in Obergefell.

To make matters worse, anti-gay curriculum laws contribute to the bul­lying and harassment of LGBT students. In recent years, studies have shown that LGBT students are exposed to pervasive bullying in our na­tion’s schools —and that such bullying exposes students to increased risks of school dropout, unemployment, and suicide. To date, no studies have specifically focused on the relationship between bullying and anti-gay curriculum laws, but the circumstantial evidence is substan­tial. Research demonstrates that when LGBT students attend schools that have not adopted LGBT-inclusive curricula, they face higher risks of HIV, pregnancy, bullying, and suicide. In some cases, school officials have specifically cited anti-gay curriculum policies as justification for failing to protect LGBT students from bullying or for denying students the right to form LGBT organizations. By making such claims, schools have effec­tively demonstrated how anti-gay curriculum policies threaten the legal status and well-being of LGBT students.

B. Classification: Conduct and Status

Once plaintiffs establish standing, they must identify the class of persons targeted by anti-gay curriculum laws. Until now, this Article has presumed that anti-gay curriculum laws are properly characterized as “anti-gay” because they facially discriminate against lesbian, gay, and bisex­ual people. By prohibiting teachers from talking about “homosexual­ity,” for example, these laws discriminate on the basis of sex­ual orientation, treating lesbian, gay, and bisexual people as immoral, dangerous, or inferior.

Yet in sodomy and marriage cases, states have attempted to sidestep this analysis by claiming that anti-gay laws target homosexual conduct, not homosexual status. For example, a state might claim that in an anti-gay curriculum law, the term “homosexuality” refers not to lesbian, gay, or bisexual people but to sexual activity between two persons of the same sex. Because anyone can engage in such conduct, anti-gay curriculum laws do not discriminate against any particular class. By targeting conduct, rather than status, these laws treat everyone alike.

There are two flaws in this argument. First, the distinction between sta­tus and conduct is nearly always belied by the text of anti-gay curricu­lum laws. Unlike sodomy laws, most anti-gay curriculum laws refer broadly to the concept of sexual orientation itself, rather than referring specifically to sexual activity between two persons of the same sex. In Arizona, for example, the law refers to “a homosexual life-style” —a term defined to include “the typical way of life of an individual, group, or culture.” In Alabama, the law refers to “homosexuality” —a term de­fined to include “the quality or state of being homosexual,” as well as “sex­ual activity with another of the same sex.” And nearly all anti-gay curricu­lum laws refer to “marriage”—a term that includes “the state of being united as spouses in a consensual and contractual relationship recog­nized by law.” By using terms like “life-style,” “homosexuality,” and “marriage,” these laws target a “way of life” and “state of being,” in addi­tion to a person’s sexual conduct.

In any event, the Supreme Court has specifically rejected the claim that laws can pass constitutional muster by targeting homosexual conduct rather than homosexual status. Justice O’Connor originally developed this principle in her concurring opinion in Lawrence v. Texas, reasoning that because the Texas sodomy law “targeted . . . conduct that is closely correlated with being homosexual,” it was “directed toward gay persons as a class.” A majority of the Court expressly adopted Justice O’Connor’s reasoning in Christian Legal Society v. Martinez, observing that “our deci­sions have declined to distinguish between status and conduct in this con­text.” In Obergefell v. Hodges, the Court reaffirmed that laws against same-sex sodomy and same-sex marriage were targeted at “gays and lesbi­ans,” even though they prohibited everyone (that is, people of all sex­ual orientations) from engaging in intimacy with and marrying persons of the same sex.

C. The Level of Scrutiny

Next, plaintiffs will have to address which level of scrutiny applies to anti-gay curriculum laws, given that they discriminate against lesbian, gay, and bisexual people. The Supreme Court has traditionally considered four factors in determining whether discrimination against a class trig­gers heightened scrutiny under the Eq