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USA Today and CLS v. Martinez

April 10, 2010

USA Today took on Christian Legal Society v. Martinez (to be heard by the Supreme Court on April 19) in a recent opinion column by Tom Krattenmaker.  In this case, the Supreme Court will decide whether Hastings College of the Law violated the Constitution by refusing to recognize a Christian Legal Society chapter because it draws its officers and voting members from among those who share its religious commitments (both doctrinal and ethical).

Mr. Krattenmaker’s primary points are (1) this case is hard; and (2) there should be some compromise.

As to the assertion that this case is hard, the unstated underlying assumption seems to be that the law has never considered what to do with religious groups that want to choose their leaders and members based on religious beliefs.  This assumption is demonstrably false.  The law almost always respects the freedom of religious groups to use religious criteria to define themselves.

Examples abound.  Title VII of the Civil Rights Act of 1964 exempts religious employers from its ban on religious discrimination in employment.  More generally, the law respects the freedom of churches and other religious congregations to select their members and their clergy.   The proposed Employment Non-Discrimination Act exempts religious employers from its ban on “sexual orientation” discrimination.  Non-discrimination “strings” attached to federal money do not include “sexual orientation,” most do not include religion, and the Department of Justice has opined that forcing religious groups to give up their religious staffing freedoms as a condition of receiving federal funding violates the Religious Freedom Restoration Act.  The Supreme Court has already held that “expressive associations” have a right to deny leadership to individuals who reject a group’s message through their beliefs, speech, and actions.

Accordingly, it is Hastings — not CLS — that seeks a radical departure from the prevailing way that the law has dealt with religious groups  that consider religious beliefs when choosing their leaders and members.

Mr. Krattenmaker’s second main point is that there ought to be some “middle ground.”  He cites approvingly two specific examples offered by Robert O’Neil, director of The Thomas Jefferson Center for the Protection of Free Expression.  Here is the first:  “The justices could rule, for instance, that the Christian student group might rightly be expected to include gay students as rank-and-file participants, but not as officers.”   There are many problems with this proposed “compromise.”

First, it is misleading (at best) to suggest that this case is all about the ability of “gay students” to serve as leaders and voting members of CLS.  Hastings originally said that CLS could not consider religious belief or same-sex sexual conduct in choosing officers and members.  In other words, it could not deny voting membership to an atheist who rejected CLS’s core religious beliefs.  Hastings later said that CLS was required to admit anyone to leadership or membership.  In other words, it is simply wrong to say that this case is all about “gay students.”

Second, this proposed compromise is, in a very real sense, what CLS is already doingAnyone can be a “rank-and-file participant of CLS,” without regard to their beliefs, sexual “orientation,” or sexual practices.  Hastings deemed this insufficient, declaring that CLS was required also to open up voting membership and leadership to students who reject its core religious commitments.  In my view, Hastings has not persuasively argued why participation is insufficient and why eligibility for voting membership and leadership is also required.

Third, to the extent one modified this “compromise” to require students who reject CLS’s beliefs to be voting members (as opposed to mere rank-and-file participants), it ignores the fact that voting members choose the group’s leaders and thus have a significant role in maintaining the group’s religious character and message.  Moreover, voting members (students who have voluntarily signed the CLS Statement of Faith) lead CLS Bible studies.  Does it make sense to force CLS to allow individuals who reject the Bible to lead a study of it?  Is this a sensible compromise?

The second proposed compromise Mr. Krattenmaker proposes is as follows:

Clearly communicate the anti-discrimination code, and [the] expectation to abide by it, to all student groups. But refrain from action against any of them unless a real-life, excluded individual steps forward with a legitimate grievance.

There is actual a kernel of common sense here.  No actual person who rejected CLS’s religious views sought to be a leader or voting member of CLS at Hastings.  If Hastings simply responded to complaints, this dispute might have never arisen.  The problem, though, is that Hastings required CLS to promise in advance that it would never consider religious belief or immoral conduct in selecting its officers and voting members.  CLS could not secure access to meeting space, funding, and communications mechanisms without making that advance promise.  Hastings essentially said to CLS, “you can’t use your Statement of Faith in choosing your leaders and voting members.”  Understandably, CLS could not make such a promise, and Hastings ejected it from the speech forum it set up for student groups.

The O’Neil/Krattenmaker suggestion points out what is really going on in this case.  Hastings is not really trying to open CLS to students who reject its religious beliefs but nonetheless desire not only to attend and participate (which CLS already allows) but to serve as leaders and voting members.  There is no evidence that such a student ever existed, and it is difficult to imagine what legitimate motive such a student might have.  Instead of protecting actual people from the unjust denial of some valuable benefit on an irrelevant and invidious basis, Hastings is simply trying to “send a message.”  Its message is that CLS’s religious and moral beliefs are wrong.  Hastings is trying to communicate its own view that same-sex sexual conduct is not immoral.  Hastings wants to loudly proclaim that it disagrees with CLS.

Yet, the essence of the First Amendment is that the government cannot use its power to disfavor messages it disagrees with.  Hastings’ treatment of CLS goes to the core of the First Amendment, and CLS should not be expected to compromise away its fundamental liberties so that Hastings can better proclaim its own message.


CLS v. Martinez: A Response to Professor Hamilton

April 7, 2010

There are so many things wrong with Marci Hamilton’s Findlaw column about Christian Legal Society v. Martinez that it’s hard to know where to start.  So I’ll start at the beginning and work my way through, hitting the most serious deficiencies in the column.

The column states that this case will cause the Supreme Court to “wade into the culture wars morass.”  To be sure, this case arises out of a leftwing university’s attack on a theologically orthodox religious group.  However, the legal principles involved transcend the particular positions taken by the contending sides on religious and moral questions.  At stake is the freedom of all student groups to choose leaders who share their respective missions, free from undue government pressure.  For decades, counter-cultural groups have invoked the First Amendment to protect themselves from hostile university administrators.  In the past, groups on the Left resisted officials they perceived to be conservative.  Now the roles are reversed.  Just as the courts vindicated the Constitution in those cases, they should do so now as well.  There is no need for the Court to “choose sides” in the culture war.  It simply needs to uphold the Constitution.

Professor Hamilton declares that “no one who engages in sex that occurs outside of marriage between a man and a woman may be an officer or prayer leader.”  This is simply incorrect.  CLS stated as follows on pages 35-36 in its opening brief filed in the Supreme Court

In accordance with traditional Christian teaching, the CLS chapter does not exclude all those who engage in what they regard as immoral conduct, sexual or otherwise: The CLS membership policy excludes only those who do so “unrepentantly,” which is religion-speak for those who do not regard the conduct as wrong or sinful and resolve to cease acting in that manner.  Thus, far from excluding people on the basis of orientation, the CLS Statement of Faith excludes them on the basis of a conjunction of conduct and the belief that the conduct is not wrong.

Given that the remainder of Professor Hamilton’s column reveals that she read CLS’s opening brief, this misstatement of CLS’s position regarding human sexuality is surprising.  Moreover, this approach to sexuality (i.e., differentiating among the experience of same-sex sexual attraction, the participation in same-sex sexual intimacy, and the persistent and unrepentant participation in such conduct) is not unique to CLS; many religious groups (and social scientists) do likewise.  To suggest that groups like CLS embrace and impose more categorical “rules” is misleading, and in a way that does not put CLS in a good light.  Nuances matter when it comes to people, and they matter when it comes to language and the law.

The very next sentence of Professor Hamilton’s column characterizes CLS’s policies this way:  “In other words, homosexuals need not apply.”  This is, at best, grossly misleading.  Individuals who experience same-sex sexual attraction are eligible for membership and leadership in CLS.  To the extent the word “homosexuals” is understood to include such persons, Professor Hamilton’s assertion that “homosexuals need not apply” is false.  To the extent that the word “homosexuals” includes people who do not engage unrepentantly in extramarital sexual behavior, Professor Hamilton’s characterization of CLS’s policies is also false.

Next Professor Hamilton states that “[b]ecause CLS discriminates against homosexuals, the Law School refused to recognize it as an official student group.”  This statement, ambiguous itself, ignores the other reason Hastings gave for denying CLS the valuable benefits of registered student organization status:  the fact that it draws its leaders and voting members from among those who voluntarily sign its statement of faith, something Hastings deemed “religious discrimination.”  This case is not only about the emotionally and culturally explosive conflict over human sexual behavior, but also about the freedom of religious groups to consider religious belief (e.g., whether the Bible is inspired, whether Jesus is divine) in choosing their leaders.

Professor Hamilton next argues that “this case hardly seems worth the candle.”  I respectfully disagree.  First, the column misstates the identity and value of the benefits Hastings confers on every group but CLS.  It is undisputed that Hastings has denied CLS access to the customary means by which student organizations communicate with the student body, such as the annual Student Organizations Fair, the law school newsletter, bulletin boards, mailboxes, or weekly email announcements of activities.  Although Hastings has offered to allow the CLS chapter to use meeting rooms as a matter of sufferance during the pendency of the litigation, Hastings has reserved the right to charge CLS a fee and to revoke the privilege of meeting at any time.

Professor Hamilton’s suggestion that these benefits are not valuable is hard to square with their existence and their widespread use by registered student organizations.  If these benefits were not valuable, why would Hastings go to the trouble and expense of creating them and conferring them upon student groups?  Why would student groups regularly use them to pursue their diverse missions?  I’ve spoken at a number of law schools this semester, and the leaders of various student groups have unanimously confirmed the importance of the various benefits universities provide to their groups.

The denial of such benefits is constitutionally significant.  Healy v. James, Widmar v. Vincent, Rosenberger v. Rector of the University of Virginia, and numerous lower court decisions unambiguously hold that the denial of such benefits is a constitutionally cognizable injury.  The fact that CLS is not utterly without alternative (but undeniably less effective) means of pursuing its mission and communicating its message is both legally irrelevant and factually unpersuasive.  It is hard to imagine that one would so easily dismiss the harm suffered by a group if a law school withheld benefits from the group on the basis of some reason deemed less defensible, e.g., because the group included primarily African-American students.  The bottom line is that it is simply false to suggest, as Professor Hamilton does, that this case is about CLS’s desire for the Hastings “logo and imprimatur.”

Moreover, Professor Hamilton does not consider the additional way that the courts have assessed the burdens that governments impose upon religious organizations through the application of religion and “sexual orientation” nondiscrimination rules.  In addition to examining the benefits denied, courts assess the effect of complying with the rule in question.  In this case, there can be little doubt that forcing CLS to have an atheist lead its Bible studies would undermine its ability to formulate and communicate its preferred message.  Similarly, CLS would not be able to effectively convey its message regarding sexual morality if it were unable to remove a hypothetical Mark Sanford, Tiger Woods, or Eliot Spitzer from a leadership post.

Next, Professor Hamilton asserts that “this case is simply one more in a growing number of disputes in which religious organizations treat government funds as if they were entitlements.”  Religious groups, like all others, are “entitled” to the treatment that the Constitution mandates.  And it is not wrong for religious groups to take action to vindicate their constitutionally protected rights.  Professor Hamilton contends that such groups seek equal treatment “despite the Establishment Clause, the Constitution’s separation of church and state,” apparently suggesting that Hastings would violate that provision of the First Amendment by giving CLS access to its speech forum.  But the Establishment Clause plainly does not require Hastings to withhold registered student organization status from CLS.  The Court’s decisions in Widmar and Rosenberger settled that question.

Professor Hamilton believes that it is somehow inappropriate – even “irrational” – for religious groups like CLS to seek access to speech forums “from government entities that have staked out positions that are diametrically opposed to their core religious beliefs.”  I don’t see why this is inappropriate.  CLS wants to pursue its mission, and access to meeting space, funding, and communications mechanisms provided by the law school will help it do so.  Its receipt of the benefits of recognition is entirely consistent with Hastings’ stated purpose of encouraging a robust debate on a virtually unlimited set of topics.  CLS’s use of meeting space, funding, and communications mechanisms does not cause it to compromise its integrity in any way.  In any event, it is one thing for a government entity to “stake out a position” with which a religious group disagrees; it is quite another for the government to use its power to pressure a religious group to conform its perspective to that of the government.  That is precisely what Hastings is doing, and this goes to the core of the Free Speech Clause.

Professor Hamilton next contends that CLS’s argument that Hastings violated its Free Speech Clause rights “is a real stretch.”  Again, I disagree.  Professor Hamilton fails to address the significance of the Supreme Court’s decision in Boy Scouts of America v. Dale, in which the Court held that the First Amendment forbids the application of a “sexual orientation” non-discrimination law to an organization that considers homosexual conduct immoral.  In my opinion, her attempts to distinguish Rumsfeld v. FAIR and Rosenberger are unpersuasive.  In Rumsfeld, the law schools lost because military recruiters would not become “members” of the law schools, undermining their claim that hosting the recruiters would substantially undermine their ability to communicate their position in favor of homosexual activism.  The Court indicated that if the government were conditioning the receipt of a benefit upon a group’s acceptance of members who oppose the group’s mission, the Constitution would be violated.  Hastings will not recognize CLS unless it allows those who reject its religious commitments not only to become “members,” but also to become officers.  Accordingly, the Rumsfeld decision supports CLS’s position.

Professor Hamilton gets one thing right:  she observes that Hastings is “openly opposed” to CLS’s beliefs.  To be sure, this observation is the starting point for her somewhat strange assertion that it is “irrational” for CLS to seek access to speech forum at a public law school that is committed to punishing CLS because of its disagreement with the prevailing orthodoxy.  In any event, her observation about Hastings’ opposition to CLS’s beliefs gets to the heart of this case.  It is not about Hastings preventing an invidious discriminator from denying protected minorities some valuable benefit.  Instead, it is about Hastings attempting to use its considerable power to pressure a dissenting group to change its counter-cultural message.  Under Professor Hamilton’s logic, it would be “rational” for theologically orthodox Christian students to simply withdraw from Hastings entirely on the ground that the school opposes their viewpoint.  Is this really the result a public law school subject to the First Amendment should desire?

Professor Hamilton asks whether CLS, in order to be “fully satisfied,” needs the law school to entirely eliminate “sexual orientation” from its non-discrimination policy and wonders whether its civil rights action is just “stage one” in some larger “campaign” at the school.  First, it bears noting that Hastings has declared that it forbids any group from invoking any reason to deny any student a membership or leadership position.  CLS’s lawsuit challenges this severe interference with the right of every group to formulate and communicate its own message.  Second, neither CLS national nor any student chapter has mounted any sort of larger “campaign.”  On numerous campuses, CLS chapters were able to persuade administrators to respect their religious freedom.  Once that happened, they did not take any additional actions regarding non-discrimination policies.  They simply went about the business of pursuing their mission.  Simply put, CLS does not object to law schools’ recognition of Outlaw or any other group for that matter, but Outlaw objects to CLS.

Professor Hamilton claims that CLS “misstated the Law School’s policy:  That policy states that no organization is permitted to put its – or its members’ – discriminatory beliefs into action.”  I am afraid that it is Professor Hamilton who misunderstands the law school’s policy – and the nature of CLS’s argument.  At the outset, it is worth noting that Hastings recognized a religious student group with a statement of faith requirement prior to 2003 as well as a group (La Raza) whose by-laws mandated race and/or national origin discrimination in 2004.  When Hastings withheld recognition from CLS in 2004, it invoked the religion and “sexual orientation” provisions of its written non-discrimination policy.  CLS correctly observed that Hastings allowed other groups to organize around secular ideas – to exclude individuals who rejected their core principles.  For example, it observed that the Hastings Democratic Caucus reserved the right to deny leadership positions to individuals who opposed Democratic Party principles.  CLS correctly argued that this constituted discrimination on the basis of viewpoint – something presumptively unconstitutional.  In an apparent acknowledgement of the power of this claim, Hastings subsequently claimed that no group could exclude any person for any reason. Of course, this shift simply magnified the scope and depth of Hastings’ violation of the right of expressive association.

Professor Hamilton asserts that CLS’s argument “rests heavily on the assumption that no Republican would ever want to join a Democratic student group, and vice-versa, on the apparent assumption that those organizations must always be politically pure.”  This assertion reflects a serious misunderstanding of CLS’s argument.  As noted above, CLS argued that it was viewpoint discriminatory for Hastings to allow political groups the freedom to deny leadership to individuals who rejected the group’s political views while denying religious groups the freedom to deny leadership to individuals who rejected the group’s religious views.  The power of that argument does not rest upon any assertion that a Republican would never want to join a Democratic club, or on the assertion that there would never be a circumstance in which a Democratic club might choose to allow a registered Republican to serve as a leader or member. The argument instead rests upon the undeniable observation that Hastings acknowledged the freedom of political groups while denying the freedom of religious groups.

Professor Hamilton concludes her column by arguing that CLS’s pursuit of equal treatment contradicts what she characterizes as the traditional “Republican Party” view that religious organizations should not accept government benefits.  CLS is not the Republican Party and is not a Republican group.  As such, it is unconcerned with whether its effort to vindicate its constitutional rights is consistent with what Professor Hamilton characterizes as Republican Party principles.  Second, I acknowledge that one could argue whether a public university should extract activities fees from its students in order to support student groups.  However, even if one opposes such a system, it is not inconsistent to argue that if such a system exists, it should be administered fairly.  At Hastings, it has not been administered fairly, and that is what CLS has challenged.

Note:  This column was submitted to FindLaw Writ, but it did not agree to publish it.

First CLS, Then the Klan?

March 2, 2010

Today, Professor Marci Hamilton and I debated Christian Legal Society v. Martinez at Cardozo School of Law in New York City.  Professor Hamilton argued that the Supreme Court should not hold that Hastings College of the Law violated the Constitution by refusing to confer registered student organization status on its CLS chapter because the chapter draws its officers and voting members from among those who share its religious commitments.

Prof. Hamilton asserted that the “bottom line question” in this case is as follows:  if the Court orders Hastings to recognize CLS, will public law schools be required to recognize the Ku Klux Klan?

Although it is not difficult to imagine that a Justice might ask such a question during oral argument, I find it hard to agree that this question is the “bottom line” in the case.  The bottom line is whether Hastings violated the Constitution by pressuring a religious group to subordinate its religious character.

During the “equal access” debates in the 1980s, opponents argued that requiring public schools to give student Bible clubs access to meeting space would lead to the proliferation of Nazi, skinhead, and Klan groups on campus.  Over 25 years after the adoption of the federal Equal Access Act, we can safely say that these fears were utterly unfounded.  The notion that groups of racist law students are poised to seek official recognition from America’s public law schools, just waiting for the Supreme Court to rule in CLS’s favor, is frankly preposterous.

More fundamentally, there is an enormous distinction between an entity engaging in invidious race discrimination and religious organization requiring its leaders and members to share its religious views.  A synagogue that requires its rabbi to be Jewish is not like the Klan.  A mosque that requires its imam to be Muslim is not like the Klan.  And a CLS chapter that requires its Bible study leaders to be a Christian is not like the Klan.  Sometimes, unfortunately, it is necessary to say what ought to be self-evident.

Canadian Christ-Centered Universities Under Attack

February 28, 2010

The Canadian Association of University Teachers (CAUT) has wrongly declared that Trinity Western University (TWU) violates academic freedom because of its Christ-centered character.

CAUT bases its conclusion upon two facts.  First, TWU draws its faculty and staff from among those who voluntarily embrace its Statement of Faith.

Second, TWU “rejects as incompatible with human nature and revelational theism a definition of academic freedom which arbitrarily and exclusively requires pluralism without commitment, denies the existence of any fixed points of reference, maximizes the quest for truth to the extent of assuming it is never knowable, and implies an absolute freedom from moral and religious responsibility to its community.”  Accordingly, TWU “is committed to academic freedom in teaching and investigation from a stated perspective, i.e., within parameters consistent with the confessional basis of the constituency to which the University is responsible, but practised in an environment of free inquiry and discussion and of encouragement to integrity in research.”

CAUT has put TWU on a list of schools it says do not respect academic freedom and is investigating other Christ-centered universities in Canada, including Crandall University and Canadian Mennonite University.

CAUT acknowledges that TWU is a legitimate institution of higher education with qualified scholars.  It nonetheless has essentially deemed Christ-centered higher education to be pedagogically illegitimate.  This is a remarkable departure from precedent.  Many similar institutions have operated in the United States and Canada for many years with their distinctive conception of academic freedom.  The higher education establishment has accommodated and accepted the distinctive nature of such institutions, respecting their legitimate place in the tapesty of North American higher education.

I suspect that simple disagreement with (and probably even animosity towards) TWU’s religious commitments has motivated this unfortunate departure from the respect that the world of higher education has generally afforded Christ-centered higher education.  The notion that God is the source of truth and that He has revealed truth in Scripture is foolish and offensive to most university professors, who believe that the exclusive means for discovering truth is through empirical observation or rational deduction.  A disagreement over epistomology is hardly a reason to deem schools like TWU to be illegitimate. Yet this is precisely what CAUT has done.

Jewish Groups Split on CLS v. Martinez

February 21, 2010

JTA, which describes itself as “The Global News Service of the Jewish People,” has posted an article discussing the divergent choices various Jewish groups have made regarding Christian Legal Society v. Martinez.  As the article explains, some groups have filed “friend of the Court” briefs supporting CLS’s constitutional freedom to draw its officers and voting members from among those who share its religious commitments — both doctrinal and moral.  Others plan to file in support of the government or sit the case out.

The article features several remarkable statements by Deborah Lauter, the National Director of Civil Rights for the Anti-Defamation League.  First, she implicitly characterizes CLS as a group that is “opposed” to non-Christians and those who engage in extramarital sexual conduct.  It is profoundly unfair and misleading to characterize CLS’s statement of faith requirement as “opposition” to those who have different religious commitments.  The statement of faith expresses CLS’s core religious beliefs, positively articulating what brings its members together.  The idea that the founders and leaders of CLS started with some “opposition” to non-Christians and then wrote the statement of faith to express that alleged “opposition” is absurd.

Second, Ms. Lauter suggests that if CLS prevails, public universities will be rendered utterly unable to address actual invidious discrimination.  I continue to find it amusing that opponents of CLS’s position, finding themselves unable to mount a persuasive case against CLS itself, must resort to parades of hypothetical horribles.  Her remark reflects a conflation of real discrimination (invidiously taking irrelevant characteristics into account) and the means by which a bona fide religious group legitimately maintains its religious character over time.

Third, Ms. Lauter said that it is “antithetical to democracy” to allow religious groups that consider religion in their hiring decisions to participate in federally funded social service programs.  “Democracy” produced the 1996 welfare reform law, which acknowledged the right of such religious groups to participate in the provision of services to needy people with public money.  Large numbers of both Democrats and Republicans voted for this legislation, and a Democratic president (Bill Clinton) signed it.  Can one plausibly call their handiwork “antithetical to democracy”?  It appears as though “antithetical to democracy” means “stuff ADL doesn’t like.”

Hastings states that no group can deny voting membership and leadership to any student on any basis (not just on the basis of characteristics listed in Hastings’ Policy on Nondiscrimination, like race and religion).  Under such a policy, a student chapter of ADL would not be able to withhold voting membership or an officer position from an avowed anti-Semite.  Does ADL really believe that Hastings would not violate ADL’s constitutional rights by revoking its registered status under such circumstances?  Perhaps ADL is confident that Hastings would selectively enforce such a policy by, say, withholding registered student organization status from CLS while conferring such status on it.  That might not be an unreasonable assumption:  in 2004, Hastings conferred RSO status upon La Raza (“the race”) even though its bylaws expressly limited membership and leadership to those “of Raza background.”

CLS v. Martinez: A Debate at SMU Law

February 18, 2010

CLS v. Martinez Debate - ADF Attorney Greg Baylor, Professor Maureen Armour , Professor Linda Eads

Earlier this week, I participated in a debate regarding Christian Legal Society v. Martinez at Southern Methodist University’s Dedman School of Law in Dallas.  I argued that the U.S. Supreme Court should rule that Hastings College of the Law violated the Constitution when it refused to recognize its CLS chapter because the chapter draws its officers and voting members from among those who share its religious commitments.  SMU law professor Linda Eads energetically but graciously advocated a contrary result.

In my prepared remarks, I shared my belief that Hastings’ disagreement with CLS’s counter-cultural positions on religious doctrine and sexual morality was at least in part behind the school’s treatment of the CLS chapter.  Professor Eads essentially agreed with me, but then said something that truly surprised me – that Hastings should have the power to punish a counter-cultural group like CLS in order to promote “the culture it wants to foster.”

As I see it, a private educational institution, such a religious one, does have (and should have) the power to foster a certain kind of culture, free from the restraints the Constitution imposes upon government educational institutions.  But the First Amendment forbids the government from using its power to restrain the expressive activity of a group whose views contradict the government’s simply because of that disagreement.

My experience has been that many public university administrators fail to adequately grasp that the Constitution limits their power – something their  private school counterparts do not experience.  A greater understanding of this reality by America’s public colleges and universities would go a long way towards restoring freedom of speech on those campuses.

American Philosophical Association and Christ-Centered Colleges

January 13, 2010

The American Philosophical Association describes itself as “the main professional organization for philosophers in the United States.”  Among other things, it produces “Jobs for Philosophers,” an on-line and print publication through which academic institutions seek applicants for open faculty positions.  The APA conditions use of “Jobs for Philosophers” upon compliance with a rule banning discrimination on the basis of religion and “sexual orientation,” among other things.  The rule essentially exempts religious colleges and universities from the ban on religious discrimination.

Early last year, a group of academic philosophers petitioned the APA to enforce its ban on “sexual orientation” discrimination and to inform “Jobs for Philosophers” readers which institutions they believe violate that ban.  The petition asserts that some schools “require faculty, students, and staff to follow certain ‘ethical’ standards which prohibit engaging in homosexual acts.”  Among such schools, according to the petition, are Azusa Pacific University, Belmont University, Bethel University, Biola University, Calvin College, Malone College, Pepperdine University, Westmont College, and Wheaton College.  As of January 12, 2010, 1471 individuals had electronically signed the petition.

This petition prompted a counter-petition signed by a number of notable philosophers, including Alasdair McIntyre, Alvin Plantinga, Germain Grisez, Robert P. George, John M. Finnis, Roger Scruton, and many others.  The counter-petition urges the APA to continue allowing institutions with policies reflecting traditional sexual morality to advertise in “Jobs for Philosophers.”  Among other things, the counter-petition argued that there is a conceptual distinction between “orientation” and “conduct,” and that institutions should be allowed to consider conduct in their personnel policies.  Many who signed the counter-petition also sent a thoughtful letter to the APA Board of Officers.

A November 23, 2009, Insider Higher Ed article reported that the APA had a adopted a new procedure that will “flag” ads from employers that are deemed discriminatory.  The APA also concluded that institutional policies that disapprove of same-sex sexual conduct violate its rule against “sexual orientation” discrimination.

It is unlikely that the APA has violated the legally protected rights of Christ-centered educational institutions with sexual morality policies.  Nonetheless, the original petition and the APA’s recent action reflect the relentless effort to marginalize and stigmatize faith-based institutions that maintain conduct standards rooted in traditional sexual ethics.  That effort has had and inevitably will have adverse manifestations in statutes, rules, and judicial decisions.  The APA’s action also contradicts a key argument that religious institutions can make when charged with “sexual orientation” discrimination:  that their policies are about conduct rather than orientation.  Of course, just because the APA embraced such an interpretation of the word “orientation” does not necessarily mean that legislatures, administrative agencies, and courts will do likewise.

U.S. Supreme Court agrees to hear lawsuit against UC-Hastings

December 7, 2009

The Supreme Court will decide whether the Constitution allows a public university to use a “non-discrimination” rule to punish a religious student group that draws its leaders and voting members from among those who share its religious commitments.  The Court announced today that it will review a lower court decision in Christian Legal Society v. Martinez, a case involving the University of California’s Hastings College of the Law.

Christian Legal Society (CLS) is an association of Christian lawyers, law students, judges, and law professors.  The foundation of CLS is faith in Jesus Christ.  Like many religious organizations, it adopted a statement of faith setting forth its basic religious beliefs.  In addition, CLS has expressed its adherence to the traditional Christian view of human sexuality, i.e., that sexual intimacy should occur only within the bond of a marriage between one man and one woman.

Hastings encourages the formation of student groups by offering them numerous benefits, including access to meeting space, communications mechanisms, and funding.  A group of CLS law student members at Hastings formed a CLS chapter and sought recognition from law school officials.  CLS indicated that all are welcome to attend CLS meetings but that the chapter’s leaders – as well as those who select them – must be CLS members.  One must sign the statement of faith to be a CLS member.

Hastings concluded that CLS’s religious standards for leadership and voting membership constitute “discrimination” on the basis of religion and “sexual orientation.” In response, CLS pointed out that its leadership and membership policies are not “discrimination,” which is properly defined as the invidious reliance upon irrelevant personal characteristics.  CLS also argued that its sexual morality standards do not constitute “sexual orientation,” given their emphasis on conduct rather than “orientation” and given that all extramarital sexual conduct is considered sinful, whether same-sex or opposite-sex.

Hastings rejected these arguments, and CLS asked the federal courts to vindicate its constitutional rights.  Both the federal district court in San Francisco and the U.S. Court of Appeals for the Ninth Circuit sided with Hastings.  And now the Supreme Court will consider the case.

Much is at stake.  CLS itself has numerous chapters at law schools across the country.  Many of them have fought successfully for their religious freedom, often through litigation.  Many other campus religious groups draw their leaders from among those who share their religious commitments.  If the Court rules against CLS, public universities could force student groups to accept as leaders and voting members individuals who oppose the groups’ beliefs.

More broadly, the freedom of all religious groups – not just campus organizations – to associate around shared religious commitment is under attack.  For example, the ACLU and its allies are working to exclude faith-based social service providers from federally funded programs on the ground that they “discriminate” on the basis of religion and “sexual orientation.”

It is no secret that theologically conservative Christianity is not particularly popular with the elites who control much of America’s higher educational system.  The traditional view of human sexuality is seen as a particularly galling departure from the prevailing campus orthodoxy.  University administrators, moreover, seem to have a lot a trouble complying with the First Amendment.  Let us pray that the Supreme Court will vindicate the foundational principles underlying our first freedom.

Who’s talking about this case?
The Volokh Conspiracy
NRO:Phi Beta Cons
The Chronicle of Higher Education
The Fire