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Alliance Defense Fund

Free to speak

Law | Court ruling protects students who oppose pro-gay event

Issue: "Tick, tick, tick ...," May 7, 2011

On April 15, the Gay, Lesbian, and Straight Education Network marks a "Day of Silence" to promote "tolerance" of homosexuality and to encourage gay students and teachers to speak up. In 2006, Neuqua Valley High School in Naperville, Ill., permitted students and teachers to participate in the event. Some participants wore T-shirts with slogans "Be Who You Are." The next school day, several Neuqua students participated in a "Day of Truth": Heidi Zamecnik and Alexander Nuxoll wore T-shirts reading "Be Happy, Not Gay." School administrators blotted out the "Not Gay" part of Zamecnik's T-shirt with ink. Both students filed suit against the school for violating their free-speech rights.

In March, the 7th U.S. Circuit Court of Appeals unanimously held that such speech is protected by the First Amendment. The court found that "a school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality." After all, "people in our society do not have the legal right to prevent criticism of their beliefs or even their way of life."

'Serious breach of faith'?

When Souhair Khatib and her husband visited the Orange County Superior Court on a probation issue (she had pleaded guilty to welfare fraud but failed to perform community service), the California court revoked her probation and ordered her taken into custody. A male officer at the booking counter ordered Khatib to remove her headscarf, which some Muslims consider a "serious breach of faith." Reluctantly, Khatib removed the scarf. Detained all day, she attempted to cover her head with the vest she was wearing. At the end of the day the judge heard Khatib's case and reinstated her probation. Khatib promptly filed suit against the county and its officers for violating her religious freedom rights under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), designed to protect the religious freedoms of institutionalized persons. In March, the 9th U.S. Circuit Court of Appeals found the holding facility fell within the definition of both "pretrial detention facility" as well as "jail"-both considered institutions and thus subject to RLUIPA. It sent Khatib's case back to the trial court to argue that her constitutional rights were violated
-Lauren Sneed is a lawyer living in Austin, Texas

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