By Lisa Keen
Although the case before the U.S. Supreme Court Monday, March 19, had nothing to do with gays on the surface, it could have a big impact on the ongoing battles between gay students and their enemies.
The case -Morse v. Frederick- seeks to determine whether a high school student watching a parade with other schoolmates on a public sidewalk during school hours engaged in disruptive behavior by hoisting up a large banner that said, "Bong Hits 4 Jesus."
Students, like other citizens, have a First Amendment freedom of expression to say pretty much whatever they want -either verbally, on a t-shirt, or in other ways. But the Supreme Court -in a landmark case from the Vietnam War protest era-ruled that they cannot engage in expression that disrupts the educational mission of a school or constitutes a threat.
The high court refused this month to hear a case in which a high school student in California said he had a First Amendment right to wear a t-shirt to school condemning homosexuality. His school district, in the San Diego area, argued that a history of violence between gays and non-gays at the school rendered his t-shirt disruptive. But that case, Harper v. Poway, was on appeal of a preliminary motion and the Supreme Court rarely takes cases in such an early phase. It could come back up through the system again.
There have been numerous legal battles over the rights of students to wear certain messages on their t-shirts. Many of them have been gay students seeking to wear messages of pride; and many have been anti-gay students seeking to wear messages of condemnation.
The Morse case would well affect those other cases.
As part of the case, the court is wrestling with a question and a reality articulated by the court's newest justices -Chief Justice John Roberts Jr. and Justice Samuel Alito.
Can a school suppress "any speech that is inconsistent with its educational mission as the school defines it?" asked Alito.
The problem, noted Roberts, is that "school boards these days take it upon themselves to broaden their mission well beyond education or protection from illegal substances and…have adopted policies taking on the whole range of political issues."
But Justice Antonin Scalia argued that the core issue of the case is not whether a school can restrict political speech but whether it can restrict speech that advocates breaking a law.
"Surely, it must be the policy of any school to discourage breaking the law," said Scalia. "Suppose this banner said 'Kill somebody' and there was no explicit regulation of the school that said 'You should not foster murder.'" It was not a good example; the court has been clear that schools can regulate speech in order to prevent violence. But Scalia's point was that he feels schools should be able to suppress speech that advocates violation of the law. (Had the high court not overturned laws against sodomy in the 2003 Lawrence v. Texas decision, that argument could have had additional implications for gay students, too.)
Complicating the Morse case is whether the principal's actions should be considered an enforcement of school property given the facts of the case. The students watching the parade were not inside the school, but outside, on a public sidewalk. They were allowed outside during school hours in order to observe the passage of the Olympic torch through the town of Juneau.
Kenneth Starr, former Independent Counsel in several investigations involving the Clinton White House, argued on behalf of the principal, contending that previous supreme court rulings enable school officials to not only prevent disruption but to prevent any "inconsistency" with school policy.
Edwin Kneedler, deputy solicitor general representing the Bush Justice Department, took an even broader approach. He argued that a school should not have to "tolerate a message that is inconsistent with its basic educational mission."
"I find that a very disturbing argument," said Justice Alito. Schools, he said, "can define their educational mission so broadly that they can suppress all sorts of political speech and speech expressing fundamental values of the students under the banner of getting rid of speech that's inconsistent with educational missions."
Another case looms
Another case which gay activist attorneys will be watching closely for in the coming weeks is whether the high court agrees to hear the appeal of a Virginia woman who does not wish to share custody of a child she had with her now former female partner.
Lisa Miller and Janet Jenkins met and lived in Virginia, obtained a civil union license in Vermont in 2000, and, two years later, had a baby together and moved to Vermont. Beyond the civil union, the couple did not seek to establish any legal ties, such as adoption or a parenting agreement, between Jenkins and the child and, 11 months after moving to Vermont with the baby, the couple split up. Miller, the biological mother, moved back to Virginia with the child and filed legal actions, first in Vermont and then in Virginia.
In Vermont, Miller asked the court to dissolve her civil union with Jenkins, grant her custody of the child, order Jenkins to pay child support, and provide for some visitation. But one month later, in July 2004, after Virginia enacted a new law prohibiting any recognition of same-sex relationships, Miller asked the court to grant her sole custody. When a Virginia judge granted that request, in October 2004, Miller then filed a motion back in Vermont, asking the Vermont court to give "full faith and credit" recognition to the Virginia court's ruling. The Vermont court refused. When Miller refused to obey the Vermont court's order to grant Jenkins visitation, the Vermont court declared her to be in contempt, setting the stage for a battle between the state courts. The Vermont Supreme Court upheld its lower court ruling and that is the decision which Miller is appealing to the U.S. Supreme Court.
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