Tim  Chandler

More than that, though, the 9th Circuit seized the occasion of the Harper case to vent at considerable length and volume on what some of its judges considered the intolerance of those who do not embrace homosexual behavior, and the importance of silencing that position … even, if need be, at the expense of students’ free speech.

Because of the 9th Circuit’s aggressive response, and the philosophical issues involved, the case quickly took on a legal significance far beyond the question of whether or not to grant the temporary injunction. School districts all over the country took note, as the clear directives of the Constitution fell beneath the wheels of political correctness.

But with its decision earlier this month, the Supreme Court effectively said “Never mind” to the 9th Circuit’s voluble opinion on the subject.

Raising esoteric procedural arguments that only a lawyer could love, the school district had tried to deny the Harpers their ability to bring an appeal to the Supreme Court. But – in a classic case of “Be careful what you wish for” – the Supreme Court said if the plaintiff cannot appeal the ruling, then the ruling must go. With that, the Court wiped the 9th Circuit’s ruling off the books – meaning it is no longer the law in the nine states under that court’s authority – so the school district lost its most important win in the case.

Obviously, the decision suits the Harper family to a tee. It clears the path for a ruling on the underlying First Amendment issues at the root of the case … kicking that aspect of Harper back into gear, and back into the jurisdiction of the 9th Circuit.

Perhaps the interval between their last ruling and their next consideration of this case will give the 9th Circuit time enough to reconsider its position…and bring it a little more in line with the constitutional free speech protections that are the hallmark of our democracy – and the bedrock of our freedom.

Otherwise, the Supreme Court may have much more to say about this case the second time around.

Tim Chandler

Tim Chandler is Legal Counsel with the Alliance Defense Fund (www.telladf.org), which represents Chase and Kelsie Harper.

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