BowdoinChapel-feat
‘NY Times’ on Lasting Impact of ‘CLS v. Martinez’

By June 10, 2014

The New York Times’ Michael Paulson reviews the tension between student religious groups and college nondiscrimination policies in an article published today. I’m pleased to see front-page attention being paid to the fact that since the Supreme Court’s 2010 decision in Christian Legal Society v. Martinez, student religious groups are increasingly being forced off campus simply for requiring that group leaders actually share the group’s faith. As Paulson writes, student groups from Maine to California are being forced to either open their leadership ranks to students who don’t believe in the group’s tenets, or leave campus:

After this summer, the Bowdoin Christian Fellowship will no longer be recognized by the college. Already, the college has disabled the electronic key cards of the group’s longtime volunteer advisers.

In a collision between religious freedom and anti-discrimination policies, the student group, and its advisers, have refused to agree to the college’s demand that any student, regardless of his or her religious beliefs, should be able to run for election as a leader of any group, including the Christian association.

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At Cal State, the nation’s largest university system with nearly 450,000 students on 23 campuses, the chancellor is preparing this summer to withdraw official recognition from evangelical groups that are refusing to pledge not to discriminate on the basis of religion in the selection of their leaders. And at Vanderbilt, more than a dozen groups, most of them evangelical but one of them Catholic, have already lost their official standing over the same issue; one Christian group balked after a university official asked the students to cut the words “personal commitment to Jesus Christ” from their list of qualifications for leadership.

In our amicus curiae brief to the Martinez Court, FIRE warned of precisely this result:

[A] decision by this Court to uphold the Ninth Circuit’s ruling will result in public colleges across the country denying recognition to student organizations that reasonably wish to limit voting membership and leadership to only those students who actually agree with the group’s core tenets. Consequently, student organizations will be forced to make the unconstitutional choice between compromising their core beliefs and organizational message in order to gain official recognition, or preserving their associational identity at the cost of being denied the same access to university resources as other groups.

That’s exactly what has happened, as today’s Times article documents. Martinez has proven to be the stinging defeat for freedom of association and our society’s long-standing and unique commitment to religious pluralism that we feared.

But what’s frustrating about Martinez’s predictable aftermath is the failure to recognize how avoidable the tension between anti-discrimination policies and freedom of expressive association should be. When it comes to belief-based groups, anti-discrimination policies should prevent discrimination based on a person’s status, which is unchangeable, not their beliefs, which aren’t. As FIRE argued to the Court, the status-belief distinction is crucial to the First Amendment’s protection of freedom of association:

Freedom of association therefore grants an organization the right to make belief-based membership decisions, including the decision to exclude from the organization those who do not share its core beliefs. Put another way, freedom of association at its core grants a right to “discriminate” on the basis of belief.

Distinguishing “discrimination” on the basis of belief from invidious discrimination based on status is critical. The right to exclude members based on status as opposed to belief does not follow from the right to form expressive organizations, because immutable characteristics such as one’s skin color, gender, or sexual orientation do not define one’s beliefs. However, the right to exclude people who do not share a common belief central to the group’s purpose is fundamental to the right to expressive association.

Preventing student groups from “discriminating” on the basis of belief means preventing the College Democrats from requiring their leaders to actually, you know, be Democrats. That’s a ridiculous result, but that’s exactly what the “accept all comers” policies sanctioned by the Martinez Court make possible.

And as Mother Jones’ Kevin Drum points out, limiting the ability of belief-based student groups to choose leaders based on shared beliefs “is the kind of thing that’s ripe for mischief-making.” As Drum writes: “I can easily imagine a bunch of campus halfwits who think it would be the funniest joke in the world to join a religious group en masse and then elect an atheist president. These are 19-year-olds we’re dealing with, after all.” That’s right. As FIRE pointed out in our amicus brief, preventing belief-based “discrimination” means that “any student groups holding unpopular viewpoints will be vulnerable to takeover and even dissolution by those students who fundamentally disagree with the group’s views.”

So here’s the fix: Allow belief-based student groups to associate around shared beliefs.

As the Times’ Paulson points out, some schools have done just that, exempting religious or belief-based groups from nondiscrimination policies when it comes to choosing leaders on the basis of belief. For example, here’s how the University of Florida handles it (PDF): “A student organization whose primary purpose is religious will not be denied registration as a Registered Student Organization on the ground that it limits membership or leadership positions to students who share the religious beliefs of the organization. The University has determined that this accommodation of religious belief does not violate its nondiscrimination policy.”

In allowing this common-sense exemption, the University of Florida prohibits the type of status-based exclusion that nondiscrimination policies are supposed to effectuate while simultaneously preserving the expressive and associational rights of religious student groups. And why not? Have non-evangelical students really been “discriminated” against when the campus evangelical group expects them to share their faith before leading Bible study?

As Drum concludes, “It’s hard to see the harm.”

Schools: Bowdoin College Cases: University of California Hastings College of the Law: Denial of Recognition to Christian Law School Group