Noted civil libertarian, lawyer, and FIRE Board of Advisors member Wendy Kaminer discusses the United States Court of Appeals for the Ninth Circuit’s ruling in Truth v. Kent in a recent blog entry for The Atlantic.
In September 2008, the Ninth Circuit held that Washington’s Kentridge High School did not violate the First Amendment rights of Truth, a Christian student group, by repeatedly denying the group’s applications for official recognition. The school cited nondiscrimination policies as grounds for denying the applications, claiming that Truth’s requirement that all voting members and officers sign a "statement of faith" was in violation of the policies.
Kaminer writes that the Ninth Circuit’s opinion "managed to finesse" clear legal precedent, indicating that the school’s denial of recognition was a violation of Truth’s First Amendment right to freedom of association, but relying on a "legal fiction"—namely, that the denial was due to the nondiscrimination policy and not the group’s religious viewpoint. Kaminer writes:
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 9th [C]ircuit trivialized what the 7th [C]ircuit 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.
Indeed, Kaminer argues that "discriminating" according to a certain set of shared values is what the First Amendment freedom of association is all about. She writes:
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.
Interpreting nondiscrimination policies to refuse recognition to religious groups like Truth accomplishes the opposite of the policies’ intended effect, Kaminer concludes:
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.
We thank Wendy for the attention to this important case. As many will remember, in late April, FIRE filed an amicus brief urging the Supreme Court to hear the Truth case on appeal. As Kelly noted earlier this week, Truth’s appeal has been identified as a "petition to watch" by the influential legal blog SCOTUSblog, which provides extensive coverage of the Supreme Court. We’ll keep you posted.