Yesterday the United States Court of Appeals for the Seventh Circuit issued an order granting the Christian Legal Society’s request that Southern Illinois University restore CLS to the status of registered student organization. Southern Illinois University had revoked CLS’s recognition because CLS had the audacity to request that leaders and voting members of the organization actually share the group’s beliefs. To Southern Illinois (and many other universities), such a common requirement—not unlike a requirement that members of the Democratic Party be Democrats or members of the Sierra Club actually support environmentalism—constitutes “religious discrimination” and must be prohibited.
Unfortunately for the CLS, the lower court had initially refused to reinstate the group. It noted that a lack of university recognition did not impose a significant burden on the group’s associational rights. This conclusion was at odds with reality (university recognition is critical for any group to exist as an effective campus organization) and with the law, and the Seventh Circuit reversed. The heart of the court’s ruling is contained in the following paragraph:
First, the loss of First Amendment rights presumptively constitutes an irreparable injury for which there is no adequate remedy at law, and an injunction protecting First Amendment rights is also presumptively considered to be consistent with the public interest. Joelner, 378 F.3d at 620. The district court instead concluded that there had been no showing of irreparable harm because CLS “continues to exist” and may “carry-on its business,” including holding meetings on campus. This is contrary to Healy v. James, 408 U.S. 169 (1972). In Healy, the Supreme Court held that a public university’s refusal to confer official student organization status on a Students for a Democratic Society chapter violated the students’ First Amendment associational rights. The Court emphasized that the loss of the right to use campus facilities for meetings was the “primary impediment to free association flowing from nonrecognition,” but the Court also specifically stated that the loss of access to campus bulletin boards and the student newspaper as modes of communication were “impediments [that] cannot be viewed as insubstantial.” Healy, 408 U.S. at 181. The Court characterized the university’s denial of recognition as “a form of prior restraint” and placed the burden on the university to justify it, saying also that this is a “heavy burden.” Id. at 184. Here, although the revocation of CLS’s recognized student organization status does not prohibit it from holding meetings on campus, it does prohibit it from any access to campus bulletin boards, private meeting space, storage space, a faculty advisor, and university website, publication, and email access. Accordingly, under Healy, the law school’s revocation of CLS’s status as a recognized student organization constitutes a cognizable infringement of CLS’s First Amendment rights, and the law school bears the heavy burden of justifying the infringement. The Supreme Court said in Healy that a public university’s interest in maintaining order and preventing disruption or violence on campus might constitute a sufficient justification for such an infringement, but the university policy invoked here is an affirmative action/antidiscrimination policy, not one that implicates the university’s interest in maintaining order and preventing disruption.
Another important element of the court’s order is its observation that there is no existing state or federal law that prevents faith-based organizations from using their faith to make membership and leadership decisions. When the university prohibits religious organizations from engaging in so-called religious discrimination, it goes far beyond the requirements of existing law to impose its own mission and policies on faith-based groups.
While the ruling is cause for some optimism in the case, it is important to note that this is a preliminary ruling only, and there was a strong dissent from the court’s ruling. The religious liberty of countless students of faith is not yet assured. FIRE will continue to monitor and support this and other similar cases across the country.