Posted Feb 25, 2005 01:10 pm CST
The Christian Legal Society says it has nothing against non-Christians and sexually active homosexuals. It just doesn’t want them as members or officers.
That stance has created problems for some of the Annandale, Va. based group’s 80 student chapters around the country. They have run afoul of university policies that prohibit discrimination on the basis of religion and sexual orientation. In response, university officials have refused to recognize several of the group’s student chapters, stripping them of funding and barring them from using school facilities.
Now those chapters are fighting back, filing federal civil rights lawsuits against five public law schools and universities for the right to discriminate in the selection of members and officers on the basis of religion and sexual orientation.
The 44-year-old Christian Legal Society–a national association of Christian lawyers, law students, law professors and judges–says its student chapters shouldn’t have to open their membership to those who don’t share their beliefs.
Requiring a Christian group to admit non Christians and practicing homosexuals would be like requiring a student vegetarian club to admit meat eaters or a student Democratic party organization to admit Republicans, says Steven Aden, chief litigation counsel for the society’s Center for Law and Religious Freedom, which represents the student chapters in the litigation.
“That really cuts to the heart of what the group is as a Christian evangelical organization,” Aden says.
According to the society’s constitution and bylaws, members and officers, including students, must sign a statement that requires them to profess faith in Jesus Christ and adhere to certain orthodox Christian beliefs based on the authority of the Bible, including a prohibition on sexual conduct between people of the same sex. Those who have engaged in homosexual conduct but have repented and those who have homosexual inclinations but have not acted on them may become members or officers of the organization. But those who engage in homosexual conduct or adhere to the view that homosexual conduct is not sinful cannot.
However, university officials say that all student organizations must be registered to receive funding and use school facilities. To become registered, they must agree to abide by the schools’ nondiscrimination policies, including those prohibiting discrimination on the basis of religion and sexual orientation.
Fran Marsh, a spokeswoman for the University of California, Hastings College of the Law, one of the schools being sued, says the university’s nondiscrimination policy is part of the state’s educational code, which in turn is part of the California Constitution. “All student organizations must be open to all students, and every student organization must accept the nondiscrimination policy in order to be recognized,” she says.
Marsh notes that other student religious organizations agreed to abide by the nondiscrimination policy in the past. So did the Hastings Christian Fellowship until it filed a petition to change its name to the Christian Legal Society at the start of the current school year.
“If they won’t adopt the policy, they can’t be a recognized student organization,” Marsh says.
Similar suits are pending against Arizona State University, Pennsylvania State University and Washburn University on behalf of their law school chapters of the Christian Legal Society. A fifth suit, filed last spring against Ohio State University, was dropped in November after the school agreed to revise its policy to allow student religious groups to adopt nondiscrimination language consistent with their beliefs.
Litigation against other universities, including Florida State, Iowa, North Dakota and Oklahoma, was averted when the schools agreed to exempt religious student groups from their nondiscrimination policies, Aden says.
The suits allege that the schools are violating the student groups’ First Amendment rights of expressive association, free speech and freedom of religion by failing to exempt them from the universities’ nondiscrimination policies.
“We believe their right to select members and officers based on shared religious beliefs is crystal clear under First Amendment case law,” Aden says.
Nancy Tribbensee, associate vice president for legal affairs at Arizona State, says all student groups must agree to comply with applicable state and federal laws, as well as board of regents policies, including the student code of conduct, which prohibits discrimination on the basis of age, ethnicity, gender, disability, color, national origin, race, religion, sexual orientation and veteran’s status. She says the Christian Legal Society chapter there chose not to register because it wouldn’t agree to comply with the student code of conduct.
“We apply the same rule to every student organization, and it’s a board of regents rule that the university does not have the authority to waive,” she says. But the Christian Legal Society’s lawyers say the nondiscrimination policy there applies whether or not the student group is registered by and receiving benefits from the university.
Washburn University general counsel Ken Hackler says the law school’s student government has decided to reinstate funding after receiving assurances from chapter leaders that all students are welcome to participate in its activities.
Hackler says the university’s board of regents is also considering policy changes that would recognize what it believes is the state of the law with respect to student religious organizations, although he declines to say what those changes might entail.
Penn State officials say they’re a little baffled by the suit against their school, which alleges that the university’s nondiscrimination policy prohibits student religious organizations from selecting their leaders based on shared religious beliefs. But university officials say the nondiscrimination policy applies only to membership criteria. It doesn’t address the selection of leaders.
“They’re suing over an element of the policy that doesn’t even contradict what they hope to accomplish,” says university spokesman Tysen Kendig.
Ohio State officials could not be reached for comment. But in a statement posted on the university’s Web site, William H. Hall, vice president for student affairs, says the school has revised its policies governing student organizations to allow groups formed to foster or affirm sincerely held religious beliefs to adopt a nondiscrimination statement consistent with their beliefs.
“Most of our religiously oriented student organizations embrace diversity and have no qualms adopting the university’s nondiscrimination policy,” Hall says in the statement. “But for those few who truly and sincerely believe that open membership would violate their religious beliefs, I believe we need to allow them the option of following their faith.”
Father Robert Drinan, a Georgetown University law professor and Catholic priest, says he doesn’t see any problem legally with a Christian student group wanting to exclude non-Christians. But he says he doesn’t think student religious groups have any legal right to discriminate on the basis of sexual orientation.
“I think the schools are correct in denying these groups funds that come with the status of a recognized student organization,” he says.
Alan Howard, a constitutional law professor at St. Louis University, says he thinks the litigation could go either way.
“I see arguments on both sides,” he says, “and I’m not sure which side has the stronger precedent to rely on.”
But Douglas Laycock, a professor of constitutional law and religious liberties at the University of Texas, says he thinks the schools are on shaky legal ground.
Laycock says the Christian student groups would have had a strong case even prior to the U.S. Supreme Court’s 2000 decision in Boy Scouts of America v. Dale, 530 U.S. 640, which held that requiring the Boy Scouts to admit a homosexual assistant scoutmaster would violate the organization’s First Amendment right of expressive association.
That decision makes this dispute “almost a no brainer,” he says. “I think the First Amendment clearly protects the right of a religious organization to insist that its members and officers subscribe to its religious teachings,” he says. “If it can’t do that, sooner or later it will cease to be a religious organization.”