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9th Circuit declines review in anti-homosexuality T-shirt case


SAN FRANCISCO (BP)–A student who wore a T-shirt condemning homosexuality to protest his school’s participation in the Day of Silence has lost a lawsuit at the full U.S. Ninth Circuit Court of Appeals, although five dissenting judges criticized the school — and thus the court’s majority — for supporting “blatant viewpoint discrimination.”

The full court declined July 31 to review the case, which eventually could be appealed to the Supreme Court. The case involves a former high school student, Chase Harper, who as a sophomore at Poway (Calif.) High School in 2004 was removed from class for wearing a T-shirt that read on the front, “Be Ashamed, Our School Embraced What God Has Condemned,” and on the back read, “Homosexuality Is Shameful, Romans 1:27.”

Harper, who since has graduated, wore the shirt as a way to protest the homosexual-themed “Day of Silence,” in which school administrations allegedly participated. The Day of Silence involves students nationwide who remain silent throughout the day as a way to protest what they perceive as discrimination against homosexuals.

A lower court judge declined to issue a preliminary injunction allowing Harper to wear the T-shirt, and earlier this year a Ninth Circuit panel, in a 2-1 decision, upheld the judge’s decision. The Alliance Defense Fund, which is representing Harper, then appealed to the full Ninth Circuit.

In a five-page ruling, two of the judges in the majority and five of the dissenters wasted few words in criticizing each other’s positions.

Circuit Judge Diarmuid O`Scannlain wrote a dissent, criticizing the majority for “neglect[ing] our duty” and calling 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.”

Tim Chandler, an attorney with the Alliance Defense Fund, said the decision was disappointing.

“The dissent hit it right on the head when they said that the Ninth Circuit decision was both unprecedented and unsupportable,” Chandler said. “It basically allows school officials to silence one side of debate on school campuses, and that is completely contrary to the First Amendment.”

Technically, the Ninth Circuit’s decision was on the preliminary injunction, and not on the case itself. The lower court judge could issue a final ruling on the constitutionality of the school’s action any week, Chandler said. ADF has several options: It could appeal the Ninth Circuit’s latest ruling to the Supreme Court, he said, or it could simply wait until the judge’s final ruling is handed down and eventually appeal that case to the Supreme Court, if necessary.

Although Harper has graduated, his sister, Kelsie, is still in school and is also part of the lawsuit, Chandler said. ADF “is going to press forward and hopefully get this thing reversed,” he said.

Reinhardt compared Harper’s T-shirt to a hypothetical one that reads, “Hide Your Sisters — The Blacks Are Coming.” Chandler, though, said Reinhardt’s logic if wrong.

“I think that’s a completely false analogy,” Chandler said. “Clearly the issue of homosexuality and same-sex marriage and similar issues are very controversial, and our society is pretty well divided on those issues. California is a great example, where you have 61 percent of the public voting [in 2000] for Proposition 22 and keeping marriage as between one man and one woman. For a student to express that essential viewpoint in quoting the Bible is entirely different than making some sort of racial comparison. For the court to compare it to essentially slavery or racism that has been so universally condemned in our society is a blatant fallacy.

“… It’s clearly an important issue and students should be allowed to express their views. But now, you’re only going to hear one side of it on California campuses, and that’s a very unfortunate result of this case.”

Chandler also was critical of Gould, who wrote that the T-shirt was “misusing biblical text to hold gay students to scorn.”

“Judges are not in a position to be determining the validity of biblical interpretation,” Chandler said. “The school district attorneys have been doing that throughout this case, and it’s been very inappropriate. To have a judge doing it is even more inappropriate. I was very surprised when I read that and disappointed that he took that approach.”

Reinhardt was nominated by President Carter, Gould by President Clinton and O’Scannlain by President Reagan. Of the four other dissenters, two were nominated by President George W. Bush, one by President George H.W. Bush and one by President Clinton. Because judges are not required to sign opinions when considering en banc, or full court reviews, the vote tally is not known.

The case is Harper v. Poway Unified School District (No. 04-57037).
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  • Michael Foust