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Posts for February, 2008

Anti-Gay T-Shirt Wars

Timothy Kincaid

February 13th, 2008

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The Alliance Defense Fund is a legal arm of the social conservative movement. They are also the founders and promoters of the Day of Truth, an effort on school campuses to “counter the promotion of the homosexual agenda”. The DOT grew out of efforts to oppose the Day of Silence, a program by gay students and their friends and allies to bring attention to how heterosexism and homophobia silence the voices of the LGBT minority.

The Day of Truth walks a careful line. While they talk about “tolerance for opposing viewpoints” (their anti-gay viewpoints, primarily) and claim that there is “freedom to change”, they stop short of outright attacks on gay students.

But this is not because they want to avoid such attacks. Indeed, the Alliance Defense Fund would like little more than to teach hostility to homosexuality and silence anyone who disagrees. But school boards have restricted the ability of anti-gay students to publicly condemn their fellow students.

ADF is not happy.

They sued.

The best known of these cases is that of Tyler Chase Harper. Young Mr. Harper wore a T-Shirt to his school in the Poway Unified School District in response to the 2004 Day of Silence. His eloquent message was Homosexuality Is Shameful, Romans 1:27″. That didn’t get Harper enough attention, so the next day he ratcheted up his message to “Be Ashamed” and “Our School Embraced What God Has Condemned.”

On the second day, school administrators told him that he could not wear a message that was overtly hostile to other students and asked him to remove the statement – which had been added to his plain black T-Shirt with masking tape. Harper refuse and, with the help of ADF, sued his school. (One can’t help but wonder what Harper would have worn the next day if this message did not get his desired result).

The judge found that Harper did not have a case. ADF appealed.

In 2006, a three judge appeals panel found that “the school is permitted to prohibit Harper’s conduct…if it can demonstrate that the restriction was necessary to prevent either the violation of the rights of other students or substantial disruption of school activities.” But they did not rule on the case itself.

In August 2006, the Ninth Circuit appeals court denied en banc review (review by all of the judges). This time the decision was in more direct language.

“Hate speech, whether in the form of a burning cross, or in the form of a call for genocide, or in the form of a tee shirt misusing biblical text to hold gay students to scorn, need not under Supreme Court decisions be given the full protection of the First Amendment in the context of the school environment, where administrators have a duty to protect students from physical or psychological harms.”

In their quest to equate the statement “treat all students with fairness” to “condemn some students based on one’s own religious beliefs”, ADF continued with their lawsuit to overturn restrictions on hostile messages in an environment in which attendance is compulsory. But by the time that the case made its way to the US Supreme Court, Chase Harper graduated and the decision was moot.

However Chase Harper’s little sister Kelsie discovered that she too had a burning drive to condemn her fellow students and the lawsuit was transferred to her.

ADF asked the judge to reconsider his ruling throwing out the case. U.S. District Judge John Houston issued his ruling today. Not surprisingly, he hadn’t changed his mind.

He wrote that a school “interest in protecting homosexual students from harassment is a legitimate pedagogical concern that allows a school to restrict speech expressing damaging statements about sexual orientation and limiting students to expressing their views in a positive manner.”

Interestingly, the ADL is supported by that organization most hated by social conservatives, the American Civil Liberties Union.

David Blair-Loy, legal director for the ACLU of San Diego & Imperial Counties, said the case is troubling. The ACLU filed a brief in support of Harper’s speech rights – siding with the religious groups that they are often at odds with.

“This theory is a novel and extreme expansion of a school’s rights to limit speech,” Blair-Loy said. Schools potentially could ban any speech they say is “psychologically damaging.”

“And let’s face it: What about high school is not psychologically damaging?” Blair-Loy said. “This student wore a T-shirt that expressed an idea. It’s an idea we don’t agree with at the ACLU, but that is the essence of free speech. It’s not just for ideas you like.”

In the midst of this battle in the Great American Culture War Against Gay People, I think something is being forgotten by both sides. Any ruling that allows social conservatives to attack gay people… also allows other students to attack religion.

If messages are allowed that condemn homosexuality on religious terms, then would not messages that condemn religion on terms of orientation be allowed? Surely they could not disallow “Christianity is a Hateful Religion and those who follow it are Homophobes and Bigots”.

And is it then a far reach from “Homosexuality Is Shameful” to “Catholicism is Idolatry” or “Speaking in Tongues is Satanic”? Would Jews be accused of “killing our Savior”? Would a school with a small Muslim minority be force to subject those students to T-Shirts attacking their faith?

This is not without precedent. In 1984 religious activists pushed the Equal Access Act through Congress so as to allow Bible Clubs on school campuses. It said that if a school allows ANY non-curricular organizations to meet, it has to all ALL non-curricular organizations to meet. This is the piece of legislation that protects Gay-Straight Alliances from being banned by homophobic school administrations – a consequence that Bible Club backers did not intend.

I doubt that ADF or those who support them have thought about the eventual results of their efforts. But, then again, this is a great fund raiser for ADF and I doubt they much care. After all, an anti-Christian T-shirt on some campus would give them another lawsuit for which to request funds and issue press releases.