In defence of the right to discriminate

Here in the US, 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 American 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, Boston, was ‘de-recognised’ 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 (1). 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 ninth circuit courts of appeals. In Christian Legal Society v Walker, the seventh 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 organisation 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) (2). 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) (3), it upheld the BSA’s right to exclude openly gay people. In Hurley v Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995) (4), the court upheld the right of a private group sponsoring the St 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 ninth circuit court of appeals still managed to finesse it. In Truth v Kent School District (5), a three-judge panel justified the denial of official status to a high school bible club, Truth, by minimising 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. (The Supreme Court has declined to review this decision.) The ninth circuit’s refusal to recognise 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 American Civil Liberties Union (ACLU) agreed, arguing that Truth engaged in religious discrimination ‘by requiring students to take a religious test to become members’ (6). 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 practising 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.

In addition to constitutional limits on state power to interfere with religious discrimination by religious groups, federal law offers explicit protections to public school students engaged in religious activities. The federal Equal Access Act prohibits school administrators from denying student groups, like Truth, equal access or opportunity based on religion. Naturally Truth claimed that denying it official status violated the Act. The court countered by narrowly interpreting the Act’s requirements, holding that the school’s refusal to recognise Truth was based on a ‘content neutral’ rule against discriminatory membership requirements and was not directed at the ‘religious content’ of the groups’ speech. (The Supreme Court has now turned down an appeal in Truth v Kent; the decision allowing public school administrators to withhold recognition from student religious groups with religious membership requirements will stand, governing public high schools, colleges and universities within the jurisdiction of the ninth circuit court of appeals.)

Maybe in the abstract the court’s reasoning makes sense, to lawyers batting arguments around. But as a practical matter, it seems difficult, if not impossible, to distinguish between the group’s right to choose members who share its religious beliefs and the group’s right to express and uphold those beliefs. In Truth v Kent, the ninth circuit trivialised what the seventh circuit stressed in CLS v Walker – the central role of membership criteria in forging the group’s message: the membership is the message, at least in part.

The ninth circuit relied on a legal fiction – that ‘the school is not denying Truth access based solely on its religious viewpoint, but rather on its refusal to comply with the district’s non-discrimination policy’. It’s a fiction that ignores Truth’s apparent inability to abide by district policy without violating its religious views.

The harm to a sectarian religious group of conditioning official recognition on a change in its membership rules and message is obvious. How might others be harmed if groups like the Christian Legal Society or Truth were recognised without altering their messages? Students who disagree with Truth that the Bible is the only infallible word of God or who consider CLS’s beliefs about sexual conduct intolerant, anachronistic or utterly unrealistic are free not to seek CLS or Truth membership, which would probably not offer them many like-minded colleagues anyway. But critics of these membership requirements are not content simply to take their business elsewhere; they want to deny the offending clubs official recognition partly because recognition generally entails financial as well as in-kind support and what some consider a symbolic endorsement. As the dissent pointed out in CLS v Walker, ‘CLS is trying to force an affiliation between itself and a state institution’.

Can CLS claim the inviolate rights of a purely private association to discriminate when it seeks to avail itself of public support? The Supreme Court effectively answered that question in the affirmative when it upheld the rights of the Boy Scouts to exclude gay people, despite the public subsidies it enjoyed. But questions about the BSA’s right to public support have lingered: Dale was something of a pyrrhic victory for the Scouts, which lost private and public sponsorship in the controversy over its exclusion of gay people; recently, for example, the BSA has been battling an effort by the City of Philadelphia to evict it from public space it has occupied for years (7).

Questions about public support for exclusionary private groups are even more complicated when they involve sectarian religious activities. In 1995, in Rosenberger v University of Virginia, the Supreme Court required a public university to finance a Christian student newspaper engaged in religious proselytising (8). The university relied on its policy denying support for all sectarian activities, in the apparent belief that funding the newspaper would violate constitutional strictures against establishing religion. The court, however, held that not funding the paper was viewpoint discrimination in violation of the group’s religious freedom. (In Truth v Kent, the ninth circuit distinguished Rosenberger by holding that denying recognition to the student bible club was not analogous to denying funding for a newspaper and did not constitute viewpoint discrimination.)

If you’re confused by these cases and the conflicts between guarantees of private associational or religious rights and prohibitions on publicly supported discrimination or sectarian proselytising, you can appreciate the challenges they present to the federal courts – and the unavoidable, variable judgment calls that metaphoric ‘umpires’ on the bench are required to make. In my view, both Rosenberger and Truth v Kent were wrongly decided, with Rosenberger requiring unconstitutional state support for sectarian religious activities and Truth v Kent disregarding students’ First Amendment religious and associational freedoms. But my view entails value judgments, too: I consider the state interest in avoiding entanglement with sectarian religious activities, like publishing a proselytising newspaper, more compelling than the state interest in imposing its vision of equality on religious groups.

Providing public support to discriminatory groups is legally problematic, of course, but at least in the school club cases, it seems a lesser threat than requiring private associations to abide by popular mandates to diversify, even, or especially, at the expense of their religious beliefs. You don’t have to be a whiny wing-nut to wonder if the denial of official status to Christian student groups reflects some measure of political correctness: Truth was denied official status partly because of objections to its name, which was insufficiently ecumenical, I guess. And both CLS v Walker and Truth v Kent involved credible claims that school non-discrimination policies had been applied discriminately to Christian student groups and not, for example, to single-sex clubs or even other religious groups.

Conservative Christian groups convinced that they tread the one and only path to eternal salvation and liberals insistent that only their notion of diversity advances public welfare on Earth obviously diverge ideologically, but they share a mistrust of dissent. What’s troubling about the liberal mandate for equality reflected in these cases is the ideological conformity it demands. High school and college administrators who deny Christian groups official recognition engage in the discriminatory conduct they condemn – excluding people who will not pledge allegiance to official views. The difference is that private religious groups have essential First Amendment rights to exclude heretics; public officials have an obligation to protect them.

Wendy Kaminer is a lawyer, writer and free speech activist. Her latest book is Worst Instincts: Cowardice, Conformity, and the ACLU. (Buy this book from Amazon(UK).) A version of this article was first published on theatlantic.com on 23 June.

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Letter from America

(1) Victory At Tufts; Evangelical Christian Group Regains Recognition, FIRE press release, 16 May 2000

(2) CLS v Walker, 2006 (PDF)

(3) Dale v Boy Scouts of America, 2000

(4) Hurley v Irish-American Gay, Lesbian, and Bisexual Group of Boston, 1995

(5) Truth v Kent School District, 2008 (PDF)

(6) Truth v. Kent School District, ACLU, 30 March 2009

(7) Boy Scouts of America v The City of Philadelphia, 2008 (PDF)

(8) Rosenberger v University of Virginia, 1995