Court-endorsed double standards are bound to be overturned

John Leo

4/23/2006 3:05:00 PM - John Leo
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.