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Federal Court Backs Students' 'Be Happy, Not Gay' Shirts

A federal appeals court has upheld $25 damages awards to two Illinois students who were barred by school officials from wearing T-shirts that said "Be Happy, Not Gay" to protest a day meant to promote gay tolerance.

Tuesday's unanimous ruling by a panel of the U.S. Court of Appeals for the 7th Circuit, in Chicago, is a follow-up to a 2008 decision by the same panel granting students Heidi Zamecnik and Alexander Nuxoll an injunction allowing them to wear the T-shirts at Neuqua Valley High School in Naperville, Ill.

In the earlier decision, which I blogged about here, Judge Richard A. Posner said that the phrase "Be Happy, Not Gay" on a student's T-shirt was not derogatory or demeaning to other students.

The students sought to wear the shirt on the "Day of Truth," a conservative response to the "Day of Silence," which supports gay tolerance and is backed by the Gay, Lesbian and Straight Education Network.

The new 7th Circuit decision comes after a federal district court conducted further proceedings and ruled for the students. The district court expanded its injunction to cover any student at the high school, and it awarded to two plaintiffs $25 each in damages.

Judge Posner wrote the new opinion as well.

"[A] school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality," the judge wrote in Zamecnik v. Indian Prairie School District No. 204. "The school argued (and still argues) that banning 'Be Happy, Not Gay' was just a matter of protecting the 'rights' of the students against whom derogatory comments are directed. But people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life."

There was no separate statement in the new opinion from Judge Ilana Rovner, who in the earlier decision agreed with the preliminary injunction but took issue with Judge Posner's characterization of youths as making only a "modest" contribution to the marketplace of ideas.

Judge Rovner said in her 2008 concurrence that youths "are leading a broad, societal change in attitude towards homosexuals," and for Judge Posner to "blithely dismiss their views as less valuable than those of adults is contrary to the values of the First Amendment."

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