FIRE Letter to Rutgers University President Richard L. McCormick, December 27, 2002

December 27, 2002

December 27, 2002

President Richard L. McCormick
Rutgers, the State University of New Jersey
Old Queen’s College Avenue Campus
83 Somerset Street
New Brunswick, NJ 08901

Sent via Certified Mail and Facsimile (732-932-8060)

Dear President McCormick:

As you can see from our Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, due process, legal equality and—in the matter of the wrongful imposition of nondiscrimination requirements on a student religious organization—voluntary association, freedom of speech, and religious liberty on America’s college campuses.

We consider this matter to be of the utmost urgency, with the most essential American constitutional and moral values at stake. Here is our understanding. Please correct any factual misunderstandings, if such exist. We believe that a student organization, the Rutgers InterVarsity Multi-Ethnic Christian Fellowship, recently has been de-recognized for refusing to incorporate into the “Leadership” section of its constitution the full language of the University’s Nondiscrimination Policy. In particular, Rutgers de-recognized the organization because, the Christian Fellowship, in determining its own leadership, employs a criterion, the “Basis of Faith,” that, in the view of Rutgers University, conflicts with the University’s Nondiscrimination Policy. As a result, the religious organization is no longer permitted to receive University funding or to use campus facilities.

This particular application of Rutgers’ Nondiscrimination Policy to a voluntary student religious association denies its members the rights of freedom of association, freedom of expression, and the free exercise of religion—all of which are constitutional rights that Rutgers, as a state institution, is legally obligated to uphold. To insist that a religious student organization not discriminate on issues of faith and on matters of voluntary association that flow from its practice of its faith to insist, in short, that a Christian organization not be Christian—not only deprives the individual members of that organization of their rights under the free exercise clause of the First Amendment, but also imposes upon them an ideology alien to their conscience, in violation of the First Amendment.

In fact, this issue was settled more than fifty years ago by the United States Supreme Court’s decision in the case of West Virginia Board of Education v. Barnette (1943). In that ruling, decided in the darkest days of World War II, the Supreme Court was faced with a challenge to a daily flag salute requirement imposed on school children as part of a statute requiring schools to teach, foster, and perpetuate “the ideals, principles and spirit of Americanism.” Jehovah’s Witnesses refused to salute the flag, believing it an act of idolatry forbidden by Scripture. Writing for the majority, Justice Robert Jackson condemned the flag salute requirement because it compelled a student “to declare a belief…to utter what is not in his mind.” He linked the freedom of unorthodox dissent to the very cause at stake in World War II. The Nondiscrimination Policy imposed on the InterVarsity Multi-Ethnic Christian Fellowship at Rutgers is a mandated ideological orthodoxy that conflicts with the core religious doctrine of these students, in the same way that the pledge to the flag rejected by the Supreme Court in Barnette was a mandated ideological orthodoxy that conflicted with the core religious doctrine of Jehovah’s Witnesses.

Explaining why even men of good intentions should not possess the awesome power to compel belief and to compel practice that expresses belief, Justice Jackson noted that nothing would rend society more than “finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing.” Justice Jackson concluded that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what will be orthodox, in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The officials of Rutgers University, the state university of New Jersey, are indeed such officials, and the voice of Justice Jackson for the majority is indeed the voice of American liberty and constitutional jurisprudence.

Rutgers simply may not use its Nondiscrimination Policy to dictate how religious student organizations order their own affairs. If Rutgers allows expressive organizations to exist at all, then it must allow religious organizations to exist, to select their own leaders, and to establish policies and practices in pursuit of their goals. The U.S. Supreme Court recently reaffirmed its commitment to this principle in Boy Scouts of America v. Dale (2000). In its decision, the U.S. Supreme Court stated that “implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” This right, the Court proclaimed, is “crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.” Consequently, the Court held that “forced inclusion of an unwanted person infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”

Rutgers cannot and must not forbid a religious student organization from making discriminations based on issues of faith. A Muslim organization has a right to be Muslim. A Jewish organization has a right to be Jewish. A Christian organization has a right to be Christian. It is tyranny and intolerance—not tolerance—to forbid such voluntary associations. At public universities, it is a denial of core constitutional rights to forbid such voluntary associations when you permit other voluntary associations. Accordingly, we ask your administration to correct this problem immediately and directly, and to recognize that the forced adoption of the current nondiscrimination requirements by student religious organizations is an assault upon religious liberty, freedom of association, and freedom of speech, in violation of the United States Constitution.

FIRE is resolutely committed to an academic world in which universities honor both the letter and spirit of ordered liberty. Surely you immediately would see the absurdity of forcing the Rutgers Bisexual, Gay, and Lesbian Association to accept as president an evangelical Christian who believed homosexuality to be an abomination unto the Lord. Note well that you already accept such rights of voluntary association, of course, by recognizing a Bahá’í Club of Rutgers University whose constitution requires not only that “officers must be members of the Bahá’í Faith,” but also that they must be “recognized as such by the National Spiritual Assembly of the Bahá’ís of the United States.”

This issue simply will not go away, and we will submit it to the court of national public opinion and to all other appropriate forums. We want simply to restore the members of the InterVarsity Multi-Ethnic Christian Fellowship to their essential rights and dignities, and to see this matter resolved with sanity, fairness, common sense, and legal equality toward your students. The Supreme Court has made it manifestly clear that the rights of free association apply to religious individual and groups. Please do not fight the Bill of Rights.

Sincerely yours,

Thor L. Halvorssen
Chief Executive Officer

Board of Trustees
Board of Governors
InterVarsity Multi-Ethnic Christian Fellowship
David A. French, Esq.
Lawanda D. Irving, Director of Student Involvement