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Court Puts Sexual Orientation in Same Category as Race 8/4/2006 Ninth Circuit refuses to reconsider decision involving student’s right to wear T-shirt with message disapproving of homosexual conduct.
The U.S. Court of Appeals for the Ninth Circuit ruled on July 31 that it will not rehear Harper v. Poway Unified School District, an appeal by a high school student whose school officials ordered him not to wear a T-shirt that expressed a negative opinion of homosexual behavior.
Sophomore Tyler Chase Harper wore a T-shirt to his San Diego County school that read: “Be ashamed, our school has embraced what God has condemned” on the front and, on the back, “Homosexuality is shameful” with a Biblical citation. Harper wore the shirt on the same day and on the day after a campus group staged an event on the school campus called “A Day of Silence.” The event was designed and advertised to promote tolerance of homosexual, bisexual and transgendered students.
After the school ordered Harper to remove the shirt on the second day that he wore it, he sought an injunction in the U.S. district court claiming that the school had infringed on his rights to freedom of speech and religion.
The court denied the injunction and dismissed Harper’s suit. Harper then appealed to a three-judge panel of the 9th Circuit. In a 2-1 decision, the court ruled that Harper did not have a right to wear the shirt because wearing it violated the rights of other students, and requiring Harper to remove the shirt did not interfere with his religious beliefs or practices.
Harper’s attorney, Kevin Theriot of the Alliance Defense Fund (ADF), then asked the 9th Circuit to rehear the case en banc, meaning in front of all 26 circuit judges.
In an opinion concurring in the order that denied rehearing, Judge Stephen Reinhardt compared Harper’s T-shirt to an anti-Semitic shirt saying “Hitler had the Right Idea” or a racist shirt saying “Hide Your Sisters—the Blacks are Coming.” In his concurrence, Judge Ronald Gould called Harper’s shirt “hate speech” that, like cross-burning, is not protected by the First Amendment.
In a dissenting opinion joined by four other judges, Judge Diarmuid O’Scannlain stated that an en banc rehearing was warranted. He called the “right to be left alone” identified by the panel majority as “unprecedented and unsupported.”
Writing for the 2-1 panel majority, Judge Stephen Reinhardt had first stated the question presented by the case: “May a public high school prohibit a student from wearing T-shirts with messages that condemn and denigrate other students on the basis of their sexual orientation?”
This question by itself reveals a major flaw in Judge Reinhardt’s thinking. Like many people, he confuses homosexual behavior with people who engage in that behavior. It is simply not true that Harper’s shirt condemned other students. Rather, it condemned one particular type of behavior.
Judge Reinhardt then noted the appropriate standard by which the case should be judged: “[A] school may regulate student speech that would ‘impinge upon the rights of other students’ or result in ‘substantial disruption of or material interference with school activities.’” He concluded that the school had not violated Harper’s rights because wearing the shirt “impinged” on the rights of other students.
To reach this conclusion, Judge Reinhardt identified sexual orientation as a “core identifying characteristic” along with race and religion. He opined that “[Harper’s] conduct was injurious to gay and lesbian students and interfered with their right to learn.” Reinhardt cited social science data about high dropout rates among gay and lesbian students as a basis for his reasoning.
In his dissent, Judge Alex Kozinski argued that Harper’s case merited a trial. Although agreeing with Judge Reinhardt on the relevant standard for the case, he argued that the school had failed to show any evidence that Harper’s conduct resulted in “substantial disruption or material interference with school activities.”
Judge Kozinski stressed the fact that Harper’s actions were in response to the “Day of Silence” event.
“Tolerance toward homosexuality and homosexual conduct is anathema to those who believe that intimate relations among people of the same sex are immoral or sinful. ... [A] visible and highly publicized political action by those on one side of the issue will provoke those on the other side to express a different point of view, if only to avoid the implication that they agree.”
Because of the strong feelings evoked by discussions of homosexuality, Judge Kozinski observed that it may be reasonable for the school to prohibit any discussion of homosexuality. However, to sanction an event promoting one view and prohibit the expression of an opposing view is unconstitutional viewpoint discrimination.
Quoting from another case, Judge Kozinski wrote, “That Defendants can say with apparent sincerity that they were advancing the goal of promoting ‘acceptance and tolerance for minority points of view’ by the demonstrated intolerance for a viewpoint that was not consistent with their own is hardly worthy of serious comment.”
An attorney with the ADF recently told the San Francisco Chronicle that they are considering an appeal to the Supreme Court. They have also asked a federal judge to review the case under a California state law that provides greater protection to students’ free expression.
“This is blatant viewpoint discrimination which is anathema to the First Amendment,” said Jan LaRue, Concerned Women for America’s Chief Counsel. “Reinhardt has always managed to wrap the First Amendment around every kind of offensive speech imaginable in the name of liberty and tolerance. Now he won’t tolerate what he finds intolerant. It’s no wonder this is the most reversed circuit court of all. Hopefully, the Supremes will deep-six this discriminatory drivel.”
Kristen Morgan is a second-year law student at Catholic University in Washington, D.C., and a summer intern at CWA through the Blackstone Fellowship of Alliance Defense Fund.
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