Discrimination Under God

     Secularists scoff when conservative Christians complain that they're oppressed.  So many demands for putative religious rights - like the "right" to conduct official school prayers - are really demands for religious power.   But Christian groups sometimes have good reason to protest denials of their rights, especially in academia.    
   
     On college and university campuses and in high schools, Christian student groups risk being denied official school recognition because their religious beliefs conflict with anti-discrimination policies.  These controversies often involve groups that bar gay students from qualifying for voting membership or leadership positions if they don't acknowledge the alleged sinfulness of their ways.   Liberal advocates of equality applaud the denial of official status to conservative groups deemed hostile to gay people; conservatives and some traditional civil libertarians decry the denial of fundamental associational and religious rights to Christian groups.
    
     This particular clash between liberty and equality dates back about 10 years (according to lawyers who follow it.)  In 2000, for example, the Christian Fellowship at Tufts University was "de-recognized" by the student government because it barred gay students from leadership posts; the controversy attracted the attention of the press and the Foundation for Individual Rights in Education (FIRE), on whose advisory board I serve, and the group regained its official status after an appeal.   Other groups have not been so lucky, and the conflict between anti-discrimination policies and associational rights has ended up in federal court, producing conflicting results from the seventh and 9th circuit courts of appeals, with an appeal to the Supreme Court pending.
  
     In Christian Legal Society v Walker, the 7th circuit granted a preliminary injunction restoring official status to the Christian Legal Society (CLS) at Southern Illinois University School of Law.  CLS had been de-certified by the dean because as the court observed, "CLS welcomes anyone to its meetings, but voting members and officers of the organization must subscribe to the statement of faith, meaning, among other things, that they must not engage in or approve of fornication, adultery, or homosexual conduct, or having done so, must repent of that conduct."  Stressing that the CLS membership rule explicitly addressed sexual conduct, not sexual orientation (which was explicitly protected by school policy), the majority argued that CLS was not in violation of university affirmative action requirements (or any state or federal law.)  The distinction between an exclusion based on sexual conduct and one based on sexual status was a distinction without a difference, the dissent in CLS v Walker argued convincingly; and it helped the majority sidestep the interesting question of whether student groups that do violate formal anti-discrimination policies should be granted official status, which would arguably transform them from purely private to quasi public groups, subject to public rules.  
   
     Rejecting the university's justification for de-certifying CLS obviously strengthens the group's countervailing First Amendment rights to exclude people who don't subscribe to its ideals; the grounding of those ideals in religion only enhances CLS's case.  The Supreme Court has confirmed the fundamental, private associational right to discriminate; in Dale v Boy Scouts of America, (2000), it upheld the BSA's right to exclude openly gay people.  In Hurley v Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995,) the Court upheld the right of a private group sponsoring the Saint Patrick's day parade to exclude gay marchers.  Citing these cases, the majority in CLS v Walker stressed the inextricable connection between membership and message: Requiring CLS to admit members who do not share its views of sexual conduct would clearly "impair its ability" to express those views:  "It would be difficult for CLS to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct."  
   
     If the relationship between screening group members and expressing a group ideal seems obvious (practically tautological,) the 9th circuit court of appeals still managed to finesse it.  In Truth v Kent School District, a three judge panel justified the denial of official status to a high school bible club, Truth, by minimizing the effect of the denial on the club's First Amendment rights and magnifying the effect of the club's exclusionary rules on other students.   (Truth is represented by the Alliance Defense Fund, which is seeking Supreme Court review.  FIRE has filed an amicus brief in support of Truth's appeal.)
   
     The refusal to recognize Truth was not prompted by any particular policy or belief regarding homosexuality but simply by the club's religious conditions for membership.   The court held that club rules, requiring all members to "possess a true desire to ... grow into a relationship with Jesus Christ" and voting members to affirm the Bible as "the only infallible, authoritative word of God," bar non-Christians from joining and violate the District's prohibition on religious discrimination.   The ACLU agreed, arguing that Truth engaged in religious discrimination "by requiring students to take a religious test to become members."  Actually neither the ACLU nor the court was making an argument so much as stating a fact - which was not dispositive.

     Associational rights are contingent on the right to discriminate - to choose the people with whom you wish to associate.  Of course Truth was discriminating on the basis of religion - against Christians with different theologies, as well as non-Christians.  How else might the group retain its integrity?  The court did not explain; but if religious groups can be denied official recognition for practicing religious discrimination against members and leaders, then the Catholic Church could be required to open the priesthood to women and atheists alike - or forfeit its tax exemption. 

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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