ADF attorneys plan to appeal “extremely poor” ruling from 9th Circuit in Poway “T-shirt” case

“The majority implied that Brokeback Mountain is in, and the Bible is out," said ADF Senior Legal Counsel Kevin Theriot.

PASADENA, Calif. — Attorneys with the Alliance Defense Fund say they plan to appeal today’s ruling by two judges of the U.S. Court of Appeals for the 9th Circuit who upheld a high school’s decision to prohibit a student from expressing his views regarding homosexual behavior on a T-shirt.

“Students do not give up their First Amendment rights at the schoolhouse door,” said ADF Senior Legal Counsel Kevin Theriot. “This panel has upheld school censorship of student expression if it is the Christian view of homosexual behavior. They have essentially determined that student quotation of Scripture can be prohibited. This case will proceed at the district court level, but we intend to appeal today’s extremely poor ruling to the full 9th Circuit.”

ADF attorneys represent Poway High School student Chase Harper, who was forbidden by school officials from wearing a T-shirt expressing his religious point of view on homosexual behavior. A school administrator told Harper to “leave his faith in the car” when his faith might offend others (www.telladf.org/news/story.aspx?cid=2746).

The decision today by the two-judge majority of a three-judge 9th Circuit panel upholds a lower court’s denial of a motion by ADF attorneys that asked for Poway High School’s policy regarding the T-shirt to be immediately halted while the case moves forward.

The third judge, Circuit Judge Alex Kozinski, vigorously dissented: “I have considerable difficulty with giving school authorities the power to decide that only one side of a controversial topic may be discussed in the school environment because the opposing point of view is too extreme or demeaning.... The fundamental problem with the majority’s approach is that it has no anchor anywhere in the record or in the law. It is entirely a judicial creation, hatched to deal with the situation before us, but likely to cause innumerable problems in the future.”

The two-judge majority criticized Kozinski, suggesting that the majority could rely upon the motion pictures Brokeback Mountain or The Matthew Shepard Story “as evidence of the harmful effects of anti-gay harassment....”

“The majority implied that Brokeback Mountain is in, and the Bible is out. What’s really broken here is the majority’s approach to the First Amendment,” Theriot observed.

“The court has manufactured new law in the area of student speech in saying students cannot say anything that school officials deem ‘demeaning’ to another,” Theriot explained. “This is the same court that ruled that parental rights stop at the schoolhouse gate and that ‘God’ should be removed from the Pledge of Allegiance. This case is not over.”

The opinion issued by the 9th Circuit in the case Harper v. Poway Unified School District can be read at www.telladf.org/UserDocs/HarperOpinion.pdf.

ADF is a legal alliance defending the right to hear and speak the Truth through strategy, training, funding, and litigation.

But it's a Reinhart driven decision. Kozinski dissented. Reinhart just about the most liberal member of the court and husband of Ramona Ripston, Executive Director of The Southern California branch of the ACLU. Judge Sidney R. Thomas is a Clinton appointed judge. I couldn't find out much abut this judge other than the Clinton appointment and his law school.

Kozinski's dissent starts on page 57 is worth reading. He destroys the arguments of the other two judges, but that doesn't matter because he was outvoted by 2 to 1. The other two judges declare the statements on the shirt to be offensive. Kozinski points out that while in the past this might be a close call a recent 9th Circuit case Frederick v Morse changed the law and made it clear that what was on the shirt wasn't offensive under the law. The other two judges ignored that 9th Circuit decision to come up with the conclusion they wanted. In Frederick V. Morse it was determined it had to be the language that was offensive not the idea being expressed. If it was not the language then the offensive idea being expressed was substantially protected.

Thought you'd be interested in this John Leo column that just came out since it mentions this case and Judge Reinhart

Columns Court-endorsed double standards are bound to be overturned
Apr 23, 2006
by John Leo ( bio | archive | contact )

Email to a friend Print this page Text size: A A Last week was a tough one for Stephen Reinhardt, the most liberal judge on the most liberal federal circuit (9th). The Supreme Court agreed to hear the state of California's appeal in the "buttons" murder case.
A San Jose man, Mathew Musladin, was convicted of murdering his estranged wife's fiance in 1994. But last October, Judge Reinhardt ordered him released unless the state promptly grants him a new trial. Writing for the court, Reinhardt ruled -- brace yourselves -- that the trial was unfair because three members of the victim's family had shown up in court wearing buttons displaying the victim's photograph. Reinhardt acknowledged that no Supreme Court precedent was involved, but said the buttons were "an impermissible factor."

On Thursday, the 9th Circuit issued another peculiar ruling, written by Reinhardt, that has just as good a chance of being overturned by the Supreme Court as the "buttons" decision. In a 2-1 split, the court ruled that a California student, Tyler Chase Harper, had no First Amendment right to go to school wearing a T-shirt condemning homosexuality.

In response to a "Day of Silence" sponsored by the Gay-Straight Alliance at Poway High School in Poway, Calif., Harper wore a shirt that said, on the front, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, "Homosexuality Is Shameful 'Romans 1:27.'" The principal ordered Harper to take off the shirt. Harper refused to comply and sued. He argued that the purpose of the "Day of Silence" was to "endorse, promote and encourage homosexual activity" and that he was entitled to use his T-shirt message as a rebuttal. He cited his First Amendment rights to free speech and freedom of religion.

Much T-shirt jurisprudence turns on the question of whether direct threats or the likelihood of severe disruption or violence are involved. In this case Reinhardt and his colleague Judge Sidney R. Thomas argued that T-shirt messages could be excluded from First Amendment protection if they strike at a "core identifying characteristic of students on the basis of their membership is a minority group."

This ruling creates a new and large category of viewpoints excluded from First Amendment protection. It said that "derogatory and injurious remarks directed at students' minority status such as race, religion and sexual orientation" can be banned, but not other controversial messages. Based on the ruling here, criticism of illegal aliens might be banned too, says Eugene Volokh, professor of law at UCLA. Volokh argues that the phrase "such as" in the ruling indicates that other groups might be granted freedom from criticism at schools.

Thus homosexuality, a subject up for political and moral debate, can be argued in the T-shirt wars only on the pro side, not on the con. Presumably no minority religious opinion can be criticized, such as the Islamic argument that cartoons of Muhammad are out of bounds. But pictures of Christ in urine would be allowed, because Christianity is the majority faith in America. Reinhardt and Thomas follow the lead of the politically correct left in carving our special protection based on hostile environment threats to self-esteem and membership in "minority groups that have historically been oppressed."

In dissent, Judge Alexander Kozinski said he has "considerable difficulty understanding the source and sweep of the novel doctrine the majority announces today," meaning that nothing in state law, federal law or common law supports it. The majority clearly says, he argues, that not all statements that demean other students can be banned by schools, only demeaning statements based on minority status. If the pope condemns gay marriage, presumably gays could wear "Catholics are bigots" T-shirts. But Catholics could respond with their own polemical T-shirts only if the school or the courts ruled they are a traditionally oppressed minority within Christianity and not just part of a monolithic Christian majority.

Double standards based on levels of historic oppression eventually all come to grief. If this case goes to the Supreme Court, the eccentric 9th Circuit ruling is very likely to be overturned. It will be one more reversal for the most reversed district court in the nation.

John Leo is a columnist and editor for U.S. News & World Report and a contributing columnist on Townhall.com.

Now you can see why the push to classify homosexuals as a protected class of people within the meaning of the Civil Rights statutes. Without that classification, there would be no more protection in the law for homosexuals than that for heterosexuals.

I did not view the T-shirt issue as purely anti-homosexual. In this case, a governmental institution undertook to deny the demonstrators their First Amendment rights of free speech and religion, and they reacted to the forced surrender of that constitutionally protected right of free speech.

I agree with the traditional prohibition of speech that presents a clear and present danger of violence; however, the devil is in the details, and that test is subjective and depends upon who is sitting in judgment of the case.

In order to protect Christians against speech that is derogatory, it would be necessary to create a Civil Rights classification, but such rights are currently based upon minority status. Curiously, the courts apparently would protect a Muslim when in fact Islam is not a minority religion worldwide.

If the court prohibits anti-homosexual speech because it might incite violence, one must ask from whom the violence might come - Homosexuals and their supporters? What if Christians and their supporters were to threaten, or even carry out, similar violence, would the court prohibit anti-religious speech on such grounds? Probably not.

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