The Volokh Conspiracy, ThinkProgress and Planned Parenthood have all recently commented on a "new" Bush Administration policy: supposedly, homosexuals should be abstinent for life. A quick look through the statute book, however, leads one to believe that not only is the policy not actually as harsh as suggested, but it's not particularly novel.

The fuss is over a new set of guidelines for Community Based Abstinence Education (CBAE) Programs published by the Administration for Children and Families. (Oh for those glorious small-government days of Republican lore, when our children and families didn't really need to be administered.) The ACF has stepped up to the plate with a new definition of abstinence:

Abstinence curricula must have a clear definition of sexual abstinence which must be consistent with the following: "Abstinence means voluntarily choosing not to engage in sexual activity until marriage. Sexual activity refers to any type of genital contact or sexual stimulation between two persons including, but not limited to, sexual intercourse."

This definition then comes crashing into the definition of "marriage" mandated by the Federal Defense of Marriage Act:

Throughout the entire curriculum, the term "marriage" must be defined as "only a legal union between one man and one woman as a husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." (Consistent with Federal law)

And hence, complains Daniel Carpenter (through a quote from Walter Olson of Overlawyered) at the Volokh Conspiracy, "a classic bait-and-switch has gone on here." Worries Planned Parenthood, "This implies that gay, lesbian, bisexual, transgender, and questioning (LGBTQ) teens have no choice but to embrace a lifetime of abstinence." ThinkProgress sounds off, "In other words, if you’re gay, the Bush administration has decided that you should be taught to never, ever engage in 'any type' of 'sexual stimulation' — ever."

All this seems rather histrionic. Reading through the CBAE materials, they seem a bit silly, but none of them are couched in terms of "teens having no choice but to" or "you should be taught to never, ever." They promote the idea that certain decisions are healthier. I don't really agree as to the health risks and one could argue all day about the evidence given, but the descriptions of the programs are a bit breathless. After all, tobacco and alcohol education programs don't advise that I have "no choice" but to smoke or drink. They recognize that I do have such a choice and explain that my lungs and liver would probably object. Nothing on the ACF's page suggests that these programs are different in type. [1]

More to the point, I'm wondering just what statutory wiggle room these organizations--including the Guttmacher Institute--thought that the ACF actually had. Explicitly defining "abstinence" as meaning "no sex until marriage" may be quite novel as a matter of government policy, but is the definition so much more horrible because it's now explicit instead of implied? The statutory standards required of the CBAE have not changed since 1996, and are found in 42 U.S.C. §710(b)(2):

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.

(emphasis mine) Now, I suppose a too-clever-by-half wordsmith might point out that there's nothing in this definition that explicitly requires CBAE programs to promote abstinence until marriage rather than, say, until one has been dating a few months, until one has exchanged class rings, or even until the age one can legally drink. But any alternate definition seems to stand at loggerheads with clear intent: after all, promoting that a relationship be consummated somewhere outside marriage means promoting a brand of abstinence statutorily considered "likely to have harmful psychological and physical effects." Certainly the ACF's definition of abstinence seems the most plausible reading of Congressional purpose.

Which then leads us back to my confusion as to these accusations of a "new" policy. Certainly one can see the difficulty that ThinkProgress is gnashing it's teeth over, but those teeth should be well worn to nubs by now. After all, the definition of "abstinence education" was signed into law by the same president who signed the Federal Defense of Marriage Act: Bill Clinton. At the very worst, the ACF has made the intent of an objectionable law more clear, but they hardly seem to be breaking new policy ground.

[1]: Sadly, it's rather typical of current discourse to conflate "X is bad for you" with "you have no choice but to abstain from X." One can mark this down to health fetishism, a desire to live forever, some form of neo-puritanism, but whatever the motivation it's still a faulty form of reasoning.