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Supreme Court gets involved in anti-homosexuality T-shirt case

WASHINGTON (BP)–A lawsuit involving a California high school student who wore a T-shirt condemning homosexuality received new life March 5 when the U.S. Supreme Court got involved.

The justices vacated a decision from the Ninth Circuit Court of Appeals that had gone against student Chase Harper, who as a sophomore at Poway (Calif.) High School in 2004 protested his school’s involvement in the homosexual-themed “Day of Silence” by wearing a T-shirt that on the front read, “Be Ashamed, Our School Embraced What God Has Condemned,” and on the back read, “Homosexuality Is Shameful, Romans 1:27.” Harper — now in college — was removed from class and prevented from wearing similar T-shirts again. His sister, a student at the school, now is involved in the suit.

Although the Supreme Court didn’t agree to hear the case yet, it might do so in the future after lower courts issue future rulings. Supreme Court Justice Stephen Breyer was the lone justice to dissent from the March 5 vacating order.

“[The case] is significant because it will really determine the extent of student free speech rights on campus,” Tim Chandler, an attorney with the Alliance Defense Fund, which is representing the Harpers, told Baptist Press. “The Supreme Court has said that students do not shed their constitutional rights at the schoolhouse gate. The Ninth Circuit essentially overturned that and said the schools can ban anything that they deem negative or offensive. [The case] is critical, especially for students who may want to speak out on views that the school may disagree with.

“We want to be able to protect students to be able to do that and to protect parents who want to allow their children to speak on important issues like homosexuality or same-sex marriage or abortion.”

The case actually has been on two tracks — one involving a preliminary injunction and the other involving the case itself. The Ninth Circuit decision last July related to the preliminary injunction request and prevented students from wearing similar T-shirts while the case itself was heard at the trial level. But after the Ninth Circuit handed down its decision, the trial court judge issued his decision in January, which also went against Harper.

Chandler said ADF now will either ask the judge to reconsider his January decision or will appeal it to the Ninth Circuit. The judge’s decision, Chandler said, “was based very heavily on this Ninth Circuit decision that’s now vacated.”

“We’re optimistic,” he said. “We’re mostly optimistic that the Ninth Circuit can get it right the second time around.”

Poway school officials allegedly participated in the Day of Silence, a yearly event which involves students nationwide who remain silent throughout the day as a way to protest what they perceive as discrimination against homosexuals. It has sparked a counter day, the Day of Truth, involving Christian students. This year’s Day of Truth will be held April 19 (www.DayOfTruth.org).

Five judges dissented from the Ninth Circuit’s July decision. Dissenting Judge Diarmuid O’Scannlain criticized the majority for “neglect[ing] our duty” and he called the majority’s logic an “unprecedented” and “unsupportable” decision that creates a “right not to be offended.” Four judges signed on to his decision.

“In reality, the panel majority’s decision amounts to approval of blatant viewpoint discrimination,” O’Scannlain wrote. “Harper wore his T-shirt after students involved in the Gay-Straight Alliance organized a ‘Day of Silence’ in support of those of a different sexual orientation. School administrators permitted the ‘Day of Silence’ but prohibited Harper from offering a different view — a decision now upheld by this court.

“… [U]nder the panel majority’s decision, school administrators are now free to give one side of debatable public questions a free pass while muzzling voices raised in opposition.”

Judge Stephen Reinhardt, though, disagreed, and wrote an opinion concurring with the majority vote. He criticized what he called the “dissenters’ blindness.”

“Advising a young high school or grade school student while he is in class that he and other gays and lesbians are shameful, and that God disapproves of him, is not simply ‘unpleasant and offensive,’“ Reinhardt wrote. “It strikes at the very core of the young student’s dignity and self-worth.”

Judge Ronald Gould went one step further, calling the T-shirt “hate speech.”

Reinhardt was nominated by President Carter, O’Scannlain by President Reagan.

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  • Michael Foust