Last week, a federal appeals court ordered Southern Illinois University’s (SIU’s) School of Law to grant the campus Christian Legal Society the basic right to exclude students who do not share (or demonstrate that they do not share) the core beliefs of the group. Unfortunately, in too many media outlets this case has been explained as a competition between the rights of religious students and the rights of gay students. As David French explained on Phi Beta Cons last week, this interpretation of the case stems from a misunderstanding of the nature of freedom of association and anti-discrimination laws:
Since when has any person of any race, creed, color, gender, or sexual orientation ever had a “right” to join a private, expressive organization when he or she does not share that organization’s goals, mission, or values? This is not a “right” that exists in American law. Let’s be clear: the case at SIU (as well as the current, similar lawsuits at Hastings, Cal State, and elsewhere) do not involve competing “rights” but instead represents an assault on fundamental and traditional constitutional liberties by identity-group activists who cannot abide the existence of coherent, dissenting views on campus (or, more broadly, in society at large).
Anti-discrimination rules (at their best) are designed to prevent organizations (public and private) from arbitrarily using biased criteria as an illegitimate stand-in for actual merit and accomplishment. For example, a person’s color or gender is irrelevant to whether they can become a good insurance underwriter, a good university admissions officer, or a good state Democratic Party chair. But if a person actively seeks to ignore or defy underwriting guidelines, steers prospective students to a competing school, or campaigns for Republican candidates, they will not be qualified for their respective jobs. It is not merely a matter of common sense for organizations (especially expressive organizations) to screen prospective members for their commitment to the purposes of the group, it is a matter of preserving the fundamental integrity of the group’s message. For political groups, shared political beliefs are vitally important. For faith-based groups, shared faith is critical. In other words, the Pope should be Catholic.
As we explained in great detail in our amicus brief in the case, and as Sam pointed out last week, there is a crucial difference between excluding people on the basis of their status (race, ethnicity, etc.) and excluding them because of their beliefs. Students who oppose the Christian Legal Society’s views on sexuality have the right to form groups around their beliefs and to exclude those who do not share their beliefs on the topic. Such a group, however, would not have the right to exclude someone because of their “status” of being Latino, Jewish, Asian or Catholic, if the students in question actually shared the beliefs of the group.
The interesting test case would arise if a gay student who believed all of the tenets of a group like the Christian Legal Society and who followed its code of conduct (an indication that those beliefs are sincere) were denied membership in the group. In my experience, however, this just doesn’t happen very often. (I would be happy to be corrected on this if I am misinformed.) CLS, for example, is exceedingly clear that such a student, or any other student who had engaged in extramarital sex but had repented, could join the group. As it currently stands, however, those who object the most to the groups like CLS’s stance on sexual morality are those who disagree with it—and those who disagree with the basic tenets of an expressive group have never had a “right” to join it.
What the students who object to group like CLS and its stance on sexual morality usually want is a change in those beliefs. Students have every right to disagree with CLS, to argue, debate, and even protest CLS’s beliefs, but they do not have the right to compel it to change those basic beliefs. This is not a sign of the failure of anti-discrimination law, or of the rights of gay Americans, but an indication of our system’s commitment to tolerance and freedom of association for all.