It appears that Jonathan Lopez’s case has struck a nerve. Last night I was on The O’Reilly Factor, the L.A. Times has picked up the story, and yesterday it was even Drudged. Unfortunately — but unsurprisingly — some misinformation is already emerging (for a good sample, read the comments section to Eugene Volokh’s excellent post on the case).
First, it is critical to note that Jonathan’s speech was not a “speech against same-sex marriage” (as the L.A. Times described it); it was an informative speech about Jonathan’s faith, and the marriage section was merely a part of his discussion of his overall beliefs.
Second, the Bible verses that Jonathan quoted were not the controversial Old Testament “stoning” passages (as some of Professor Volokh’s commenters seem to assume) but were instead Romans 10:9 and Matthew 22:37-38, verses that don’t pertain to marriage or sexual morality at all. He did refer to Genesis 2:24 (“Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh.”) without quoting it.
We don’t disagree with Professor Volokh when he says, “Professors doubtless have a vast degree of flexibility in grading students, even in viewpoint-based ways.” We would never argue otherwise (indeed, when I taught at Cornell Law School I would often require students to argue one side or the other of contentious cases). Yet this “vast degree of flexibility” does not extend to the professor’s actions in this case. Withholding grades, shutting down speeches, humiliating a student publicly, issuing expulsion threats . . . each of these things is troubling in its own right, and taken together they paint a quite damaging portrait of unlawful retaliation and censorship.
Further, we live in troubling times, when even the mention of marriage as the union of one man and one woman can be called “hateful propaganda” and raise the specter of speech code enforcement actions. The speech-code culture has taught too many students that they not only should be offended when they hear dissenting speech, but that dissenters should be punished. If Jonathan succeeds in his suit, students and professors may still get angry, but their anger will merely be part of the discussion and not a prelude to censorship.