Beginning in 2006, I had the privilege of representing two brave young women in perhaps the most egregious Establishment Clause case I’d ever seen. The Georgia Institute of Technology (Georgia Tech) had implemented a so-called “safe space” program designed to mandate acceptance of LGBTQ lifestyles. This manual — prepared by state officials, created with state funds, and taught by university employees, including deans — compared religious objectors to homosexual behavior to slave-owners and purported to evaluate various religious denominations.
It should come as no surprise to anyone that Georgia Tech — located in the heart of Atlanta — preferred that its students be Buddhist, not Baptist.
In addition to this absurd “safe space” policy, the university also imposed a blatantly unconstitutional speech code, a restrictive speech-zone policy, and discriminated against religious speech in the distribution of its student activity fees. In other words, it was a full-spectrum constitutional offender.
The young women who challenged these unlawful policies found themselves in the crosshairs of the most vicious on-campus campaign I’d ever seen. Subjected to rape threats, threats to have acid thrown in their faces, and a series of disturbing death threats, one of the plaintiffs finished her Georgia Tech career with a police escort on campus.
The litigation itself was a resounding success. A federal judge enforced a change in the university’s speech code, putting it under five years of supervision. It struck down the “safe space” manual, holding that it violated the Establishment Clause. And the university — during the litigation — changed its other unconstitutional policies to comply with the First Amendment. Ultimately, it had to pay more than $200K in attorneys’ fees for its defiance.
Not only did every university official responsible for the Establishment Clause violation keep their job, so did those responsible for the speech code and other unconstitutional policies. Instead, after the court’s rulings, the university put out a press release so misleading that it earned an unprecedented rebuke directly from the judge in the case.
And how did the media respond? The Los Angeles Times characterized the case as suing for the “right to be intolerant,” and when the speech code was struck down, the Atlanta Journal-Constitution declared “insults allowed at Georgia Tech.”
I thought of this case when I read the New York Times’ absurd editorial “God, Gays, and the Atlanta Fire Department,” endorsing the termination of a Christian fire chief for publishing and distributing a book that — in part — expressed his personal religious beliefs about homosexual behavior. The book was not published with public funds, it purported to represent nothing more than the fire chief’s personal views, and an investigation “found no evidence that [the fire chief] had mistreated gays and lesbians.”
Yet he was fired anyway, with the enthusiastic support of the Times.
That’s the mainstream-media position in a nutshell: Defend unlawful state action when it advances LGBT interests, and attempt to redraft First Amendment jurisprudence to dramatically narrow free speech (I had no idea that the First Amendment failed to protect “problematic” speech that had the potential to offend) when its favored constituencies feel upset. There’s no true constitutional principle here. To them, it’s all just culture war, and their opponents best learn to shut up.