ADF Alliance Alert

by Matt Bowman

Thanks to the U.S. Court of Appeals for the Seventh Circuit, Christian students were able to celebrate the Day of Truth this week on at least a less-unequal playing field. In its expedited decision a few days ago, the court ruled 3-0 that Naperville Illinois high school and ADF client Alex Nuxoll should be allowed to wear his t-shirt that says “Be Happy, Not Gay.” The Seventh Circuit ruled that there is no basis for expelling Nuxoll’s t-shirt message under the guise of banning derogatory speech.

Hopefully, Christian students in the Seventh Circuit will no longer be singled out for censorship when they wish to present their side of the story in a school controversy about homosexual issues–a controversy started not by them, but by those in their schools who publicly relegate traditional Christian beliefs to social intolerability. They call it harassment to respectfully express a Christian viewpoint, which is all the more ironic in schools that give diplomatic immunity to pro-homosexual speech that claims to be all about “tolerance.”

In cases like this, much depends on how the facts are characterized. It is not accurate to say that the Day of Silence (sponsored by the “Gay, Lesbian and Straight Education Network”) advocates mere “tolerance” rather than homosexual behavior itself, and at the same time to label Nuxoll’s speech as anti-homosexual. This is because “tolerance,” as promoted by the homosexual legal agenda, is not neutral. The inherent bias of “tolerance” is plain from our cultural context, where the same political special interest groups advocate homosexual behavior in society and in schools, and support the Day of Silence. More fundamentally, this version of “tolerance” demands that if you don’t believe that homosexual behavior and same-sex attraction are just as legitimate as heterosexuality, you are bigoted and discriminatory, and your view is “derogatory.”

Certainly there is a neutral tolerance under which students will not be subjected to violence no matter what views they have on issues relating to homosexual behavior. Neutral tolerance would likewise give different sides of the debate an equal ability to express their views, including traditional Christian views. As is obvious from the censorship in this case, however, “tolerance” does not stand for equal rights of expression. It requires that students believe—and not contradict—the idea that homosexual behavior and inclination are equally normative in themselves. This attitude chooses sides, because the debate itself is about what is the normative sexual nature of human beings. Requiring Christians to accept homosexual behavior as legitimate is requiring Christians to abandon their view, which is that God’s plan for sexuality is exclusively expressed and fulfilled in marriage between one man and one woman.

A school-wide celebration of the Day of Silence, where students can champion “tolerance” (but Christian students can’t express their view), and teachers can participate in the Day of Silence (but Christian teachers can’t express their view), is itself oppressive and intolerant of Christian parents and their children who are forced to attend such schools. Only a devotee of the biased version of “tolerance” would refuse Christian students in that hostile environment an outlet to speak up and say, “I have a different view on these issues, I think it’s true, and here’s why.” Yet the intolerant kind of “tolerance” is pervading more and more public schools.

Using the loaded dice of “tolerance” in legal analysis can be perilous to free speech. Courts look less favorably on excluding one side of a debate than on preventing the subject altogether. If the Day of Silence is characterized as hovering entirely above the debate, students like Nuxoll are left being caricatured as lone attackers and instigators of a conflict, instead of simply responding to an environment hostile to their values that has been foisted upon them by an approving school regime. The concurring opinion in last week’s decision points out that in the 1969 Tinker case the Supreme Court was not merely criticizing the suppression of one viewpoint—opposition to the Vietnam War—but it vindicated students’ rights to speak for or against the war. Neutrality was violated in Nuxoll’s case because the school allowed some views on homosexual issues and suppressed others. Likewise, in the recent Supreme Court case Morse v Frederick, the concurring (and decisive) decision by Justices Alito and Kennedy rejected the notion that a school could censor unwelcome views. Yet even if the school in Tinker was supporting a pro-war status quo by suppressing anti-war views, Christians wishing to speak during the Day of Truth are protected by Tinker because they are the ones battling the status quo, which involves an educational regime that is pro-homosexual behavior and often sponsors the Day of Silence along with its intolerant “tolerance” regime.

The constitution does not permit a public high school to allow/sponsor expression on this issue in the first place (with teacher participation), and then silence Christian speech in response. Nor is it right to label Nuxoll’s clever phrase “Be Happy Not Gay” as an attack on a group of people. It is simply one way to speak in this debate. “Not gay” doesn’t condemn the fact of having a same-sex attraction, because “gay” is not merely the status of having a same-sex attraction. “Gay” is a socio-political identity that believes that same-sex attraction and actions pursuant to it are normal, healthy, and beyond normative criticism. There are many people with same-sex attraction who do not embrace and flaunt it according to the “gay” identity. Thus, in this case the phrase “not gay” should not be construed as being against people, or against the possession of a particular disposition.

Nuxoll’s free speech rights do not ultimately hinge on whether “Be Happy Not Gay” is “negative.” The point is that politically correct censors shouldn’t be allowed to define disagreeing speech as unacceptably negative, and also be allowed to define the Day of Silence as being purely neutral. Those characterizations leave censorship in the hands of one side of the debate, by which one side determines the rules of the game. To rise above censorship and intolerant “tolerance,” courts should evaluate both sides of this debate equally, without adopting the loaded assumptions of the homosexual legal agenda about the scope of its own speech and of the speech of its Christian opponents.

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