No you may not
So here it is again – Christian groups getting up in public and demanding the right to treat certain people badly.
In a case that pits nondiscrimination policies against freedom of religion, the Supreme Court is grappling with whether universities and colleges can deny official recognition to Christian student groups that refuse to let non-Christians and gays join…The Christian group said its constitutional freedoms of speech, religion and association were violated when it was denied recognition as a student group by the San Francisco-based school.
The group has made this argument at several universities around the nation with mixed results…
Hastings said it turned the Christian Legal Society down because all recognized campus groups, which are eligible for financing and other benefits, may not exclude people due to religious belief, sexual orientation and other reasons.
The Christian group requires that voting members sign a statement of faith. The group also regards ”unrepentant participation in or advocacy of a sexually immoral lifestyle” as being inconsistent with the statement of faith.
Right – so there you have it. The group regards a particular set of people as doing something “immoral” for no stated reason except that that is part of their “statement of faith,” and on those stupid unreasonable narcissistic grounds the group wants to exclude that set of people in a context where groups are simply not allowed to exclude people for stupid unreasonable arbitrary reasons.
This is bad. This is institutionalized badness. It is bad to exclude people for stupid arbitrary tiny-minded reasons, and religious groups shouldn’t be energetically trying to gain themselves a putative “right” to do that. This is bad, bad stuff. People don’t get to invent random definitions of “immoral” and then use them to exclude people in public settings. Religious groups are energetically trying to do exactly that, and they must be resisted and rebuked.
Well, I agree that these are stupid, tiny-minded little people, but I think you have to differentiate between public and private entities. Should the government be permitted to discriminate on any basis? Clearly no. Should private groups be permitted to discriminate on whatever bases they wish? I say they should.
If I want to form a private club that accepts only gay atheists as members, I don’t think you or anyone else has the right to prohibit me from doing so. The fact that these clubs are college organizations created by individual students isn’t sufficient to make them government groups.
Do you also believe that, say, women-only gyms should be prohibited by law? How about the United Negro College Fund? Why are they permitted to discriminate?
But even the lawyers arguing on behalf of the Christian student group are restricting their desire to discriminate only with respect to beliefs and not to status. So the gender and race analogies don’t work here. (As an aside, it’s pretty hard to see how being gay qualifies as a “belief” and not a “status”, which I think is an obvious 10-foot hole in their argument.)
This is a tricky one. I think that Robert Bruce Thompson is basically correct in that people should have the right to form a group whose members define themselves in some particular way; or, to put it another way, people who think of themselves in a particular way have a right to get together with their fellows.
But there is another side to this. Suppose we were talking about a neo-nazi group. Democratically speaking, no one can can stop them getting together unless they start fomenting real social and political unrest, but should a university be compelled to allow such an organisation to form on its campus? Doesn’t it have the right to say that an organisation that bans Jews on the principle that it considers them to be inferior human beings, or even not fully human, and which subverts historical facts to further its morally deplorable aims, is by its nature immoral and threatens the harmony of the university (which, after all, is not a state but an educational institution with moral obligations to critical thinking and education, not to mention the welfare of all its students)?
I think it is possible to argue that christian groups who declare that people such as gays should be banned on the grounds of immorality could be seen in a similar light. They too must distort history – and science – to declare their so-called “truth”, they too must declare certain people to be beyond the pale simply because they exist; this must be contradictory to what a university stands for and certainly does nothing to promote harmony amongst fellow students. There is the further problem that all this is predicated on mere belief, and it seems iniquitous that people should be allowed to dictate to others merely because they believe something.
Robert Bruce Thompson has it all wrong. Public universities and even private ones should not have to support these groups that discriminate. Why should my taxes go to support a group that discriminates? Let them run their group IN PRIVATE, off campus. Then then can discriminate as much as they want.
One either supports free speech and freedom of assembly, or one doesn’t. I support those rights, which means I often find myself defending people whom I find utterly despicable. But as long as they’re speaking and not acting, they haven’t crossed the line.
So, yeah, if the university has a Young Democrats club and a Young Republicans club, I’d defend the right of the Young Nazis club to exist. On the other hand, if the clubhouse happened to burn down during a meeting, I wouldn’t shed any tears.
Which reminds me… Around the time I moved to Winston-Salem, North Carolina back in 1979, a TV news report came on about the big shootout between the Klan and the Communists in Greensboro (about 25 miles away). One of the guys I was with commented, “I hope they both have lots of ammunition”, which I thought summed things up nicely.
Gordon. In that hypothetical case, statements like “not fully human” imply that discrimination is being extended to Judaism as an ethnicity, and not just a religion. So Judaism would count as a status, and would remain protected. Hence, it would be irrelevant to the legal argument that these people are presently making.
From the article:
I think there’s a distinction between the spirit of the law and the law. Robert advocates both, which I applaud. But, at least on the basis of what’s been said so far, it’s not clear to me that NEB’s point is off-base.
In the case of a private institution dedicated to higher learning, one hopes they would respect the spirit of free speech and assembly, which means tolerating discrimination of mere beliefs. But that private institution gets to decide whatever it wants. If students think that’s Orwellian, they can find a new school to go to. If, on the other hand, the institution is a public one, then things ought to tilt more radically in Robert’s direction.
I don’t think this issue is quite so simple. Norman Geras also addressed this on his blog: http://normblog.typepad.com/normblog/2010/04/discriminatory-membership-criteria.html
It seems to me that the officers and voting members of an organization should be somewhat in agreement with the core mission of that organization. For a political as opposed to religious example, should a pro-choice group be required to allow anti-abortion activists to become voting members and officers of that group?
The fact that these clubs are college organizations created by individual students isn’t sufficient to make them government groups.
The fact that these clubs are college organizations funded in part by students at that college and then discriminate against a sub-set of those same students makes them ineligible to to be a college club.
Let them rent a hall and run the club using their own money and they can exclude who ever their bigoted little hearts desire.
Well, the women’s lacrosse team is funded by the university, so should it be forced to accept men? Is your point that any organization operating under the university umbrella should be forced to accept anyone who wants to join the organization? If so, a moment’s reflection makes it pretty obvious that there are severe problems with that.
My own feeling is that students should not be forced to pay any fee that goes toward supporting non-core educational functions, which includes all of these campus organizations as well as sports teams and so on. If the university decides to provide de minimis support (e.g. meeting facilities), that support should be available to any student organization, with the university making no value judgements about the purpose of the organization.
Should private groups be permitted to discriminate on whatever bases they wish? I say they should.
But not as part of a university. The university has rules (that bar arbitrary exclusion), so the legal issue is whether or not such rules infringe religious rights. It’s not a private groups issue.
Nor is it a sex issue. Read the article, Robert! They believe that status (sex, race, etc.) is irrelevant to the case they’re making.
I disagree with this article.
I think it’s perfectly fine for Christians to start such a group and disallow gays from joining. If I founded an atheist group I would think long and hard about allowing believers into that group as members, and with a Skeptic’s Society I wouldn’t let homeopaths join. In a Green Party group I wouldn’t necessarily want Republicans – always as members, not as guest speakers or attendees to a meeting.
So if someone founds a group that is based in being a bigot, I’m glad if they throw the bigots out. Makes it easier.
If I founded an atheist group I would think long and hard about allowing believers into that group as members
But that’s not the right comparison. The right comparison would be If I founded an atheist group I would think long and hard about allowing straights into that group as members.
Would you? Probably not – because that would be off the wall. What’s being straight got to do with anything?
The Christian group isn’t defending its right not to admit unbelievers, which I agree would be far more reasonable. It’s defending its right not to admit people under a criterion that, to sane observers, looks simply random.
Ophelia wrote:
But the article says:
me no understandy. (Unless you’re trading on the difference between being a member and running the joint?)
Not to admit people as members – that’s more than just letting people join in activities.
Ophelia pointed this out, but I think it needs pointing out again:
1. The issue is not the right of this group to exist and to be exclusionary. It is not about infringing on their right of assembly, even if they exercise that right in an exclusionary manner.
2. It is about whether the school itself officially recognizes the group. I do not know the details of what official recognition consists of at this school, but such recognition typically includes financial support from the school to the group and other perks.
3. Any group, including bigots, may form any association they like. They may gather where they like, including on campus (with obvious exceptions about unlawful behavior). They may publish their opinions, print up buttons and badges, etc. But that does not mean they are necessarily entitled to official imprimatur from the school, especially if their membership practices violate core non-discrimination rules at the school level.
This is a hugely important distinction – it’s what this case is about.
Corrections (how I long for a “preview” feature):
“. . . I think it needs pointing out again. . . ”
Awkward sentence should have read:
” It is not about infringing on their right of assembly, even if they exercise that right in an exclusionary manner.”
Well looky here, chum, it’s so easy to tweak stuff now that I’ll just correct that one for you.
Oph, right, but the important part of the quote is the end bit and not the beginning. “What it objects to is being run by non-Christians.” So the Christian group is defending its right not to admit unbelievers.
Of course, if the Christian group thinks that their right to be shoulder-to-shoulder in their faith implies they can discriminate on the basis of sexual orientation, they’ve got another thing coming. But that would seemingly be at odds with their lawyer’s argument, because it crosses the line between discriminating on the basis of belief (which they explicitly defend) and discriminating on the basis of status (which they explicitly don’t). If they’re aiming to keep gays out, then the legal team has already undermined its own argument.
Thanks O! In exchange, I promise to check my prose very carefully, and to write 100 times on the blackboard, “I will not overuse the bold-type function.”
Josh Slocum said:
<blockquote>
2. It is about whether the school itself officially recognizes the group. I do not know the details of what official recognition consists of at this school, but such recognition typically includes financial support from the school to the group and other perks.
</blockquote>
Exactly correct Josh. I an other said that before but others just wandered off point.
Mind you, I suppose my post mixed up the two issues – it took off from the official recognition aspect but then it became a jeremiad on the morality of the whole thing. But then the jeremiad was partly about the effrontery of demanding official status and recognition for this morally contemptible and indefensible policy. Their policy has all the moral standing of excluding left-handed people or Jews or people from Bratislava.
If we separate the whole thing from the college recognition, then sure, they can exercise their freedom of assembly, and I can exercise my freedom of jeremiadery. They’re free to be horrible and I’m free to say how horrible they are.
Something’s gone wrong! Everything’s coming out twicely!
Ah well – I’ll tidy up tomorrow.
And they are horrible, and we should all say so. I was being nitpicky only because it’s too easy – almost inevitable – for folks to mix them up and start accusing one another of wanting to strip away freedom of assembly from people we find distasteful, when no one (’round these parts) would actually argue for that.
My gut feeling is that the university should win. Its policy doesn’t seem to discriminate against anyone or disparage anyone’s views (if that’s relevant). It just says that it will fund and assist only those organisations that are themselves non-discriminatory (like the university itself, one hopes). It seems to have good secular reasons for doing that, and I can’t see any violation of a constitutional right here.
But it’s also all-too-plausible that the shoe could be on the other foot in other cases. What if a small Atheist Society or Rationalist Society on campus found itself unable to keep out a large organised group of activist Christian fundamentalists who joined expressly for the purpose of paralysing or destroying it? What if a whole bunch of anti-gay bigots organised themselves to do the same to a small Gay Club? These are more likely scenarios, I think, than someone trying a hostile takeover of a Christian group (though you never know).
Given the state of the culture wars, I can see why student clubs and societies might want to be able to vet applicants for membership to ensure that they are not hostile to the very purpose of the club/society. I can then see why some might get worried if the university administration won’t go along with it.
But I still tend to think that the university administration needs to manage on the assumption that students will usually be sensible and that these kinds of hostile takeovers will either not happen at all or will at least be uncommon. Even if they start happening, it’s difficult to see anything simple that administrators can do to resolve it. I suppose they could insist on vetting the rules of all clubs and societies, with a standard format including an objects clause … and having approved them, case by case, allow the club/society to at least insist that applicants for membership express agreement with the objects. But that’s getting bureaucratic. Maybe there’s another approach. But I think that a university administration should at least be allowed to insist on an all-comers policy, while also being allowed some scope to deal with these sorts of hostile takeovers if they ever become a problem. The Supreme Court shouldn’t be requiring the administration to guarantee that hostile takeovers won’t happen. No administration could give a guarantee like that.
Normally, you’d just assume that Christians don’t want to join the Atheist Society, that atheists don’t want to join the Christian Union, that straights don’t want to join the Gay Club (or if they do it’s to be supportive), that Protestants don’t want to join the Cardinal Newman Appreciation Association, etc. The university administration should be allowed to act on that assumption.
Russell, right. As others reminded me above, there is this problem. But this particular case is different, so a ruling in this case wouldn’t necessarily open the door to hostile takeovers. That’s because this case isn’t about this Christian group’s refusing to admit atheists, it’s about its refusing to admit gays. It’s the extra step in there that seems to be a wedge for a reasonable objection.
This extra step is also related to the distinction between status and belief, which the lawyers made. So an Ayn Rand club could refuse to admit socialists and a Socialist club could refuse to admit Randians, but neither club could refuse to admit women or Jews or blacks or gays.
Could they refuse to admit Christians or Muslims or Hindus or all of those? Would those categories be status or belief for the purpose of jurisprudence? I really don’t know. I suppose off the top of my head I would say they should be treated as status in relation to those clubs (even though I usually resist treating religions as identity or status rather than belief), because the two categories aren’t mutually exclusive and that makes exclusion arbitrary.
But I’m not a lawyer, to say the least, so I’m just making it up as I type.
Atheist or religious clubs of course would have non-arbitrary reasons for excluding Christians et al. or atheists.
I suppose all this is related to the “secular purpose” criterion – the question of what kind of reasons are given for the exclusion.
What’s apparently afoot is a campaign by reactionary Christian groups to make the exclusion of gay people not arbitrary but somehow inherent to their “beliefs” and thus the purpose of their groups. But it’s a big stretch. With any luck they will fail ignominiously.
Preface: I am not a civil rights lawyer.
The U.S. substantive law in this area is complicated, because when it’s just private sector clubs and associations that do not operate with government subsidies or aid, the dominant law that applies is the Civil Rights Act of 1964 (which can be found at 42 U.S.C. 2000b, 2000d, 2000e, etc.), and which contains separate Titles that apply to voting rights, public accommodations (such as restaurants, hotels, & transportation), and in employment, higher education, etc. All this legislation was originally passed on the strength of not only our 14th Amendment (equal protection of the laws) but also Congress’s power to regulate interstate commerce. Under some titles of the Civil Rights Act but not others, “gender” and “sexual orientation” may receive some protection or scrutiny, but generally not as much as race, national origin, or religion.
Example: Under Title VII (employment practices discrimination), the categories 0f unlawful discrimination are [on the basis of] “race, color, religion, sex, or national origin.” Under Title VI (prohibiting federally-assisted or funded programs from discriminating), the original categories were just “race, color, national origin,” but “sex, religion, sexual orientation, disability, and status as a parent” were added as prohibited grounds in an executive order by Pres. Clinton in 2000. And under Title II (prohibiting discrimination or segregation in places of public accomodation), the prohibited grounds in the statute are “race, color, religion, or national origin.” I don’t know whether the courts or the Dept. of Justice have effectively expanded this last list to include gender or sexual orientation.
That there is still freedom of private association here in the U.S., and that there are “holes” in the fabric of civil rights law, is shown by the Augusta National private golf club in Georgia, which hosts the Masters’ tournament each year. Probably a thousand women play golf at Augusta every year (as guests), but it’s a private club with a “by invitation only” admissions policy and no female members, and despite many court challenges and unfavorable publiclity, it remains and is likely to remain a men-only club for as long as most of the approximately 300 members want it to be.
When it is a state government (or an instrumentality of state government, such as a public university that receives taxpayer funds) that is accused of engaging in unlawful discrimination, the controlling law may be statutory (Title VI of the Civil Rights Act) if the university or other “state actor” receives federal money; if it does not receive federal assistance, then the controlling law is under the Equal Protection clause of the 14th Amendment, and there the going gets very muddy, because certain grounds for distinguishing or classifying people (students, aid recipients, clientele, etc.) are considered “suspect classes” and some other grounds are not. The level of scrutiny that the courts will focus on a given case of alleged discrimination will vary from “strict scrutiny” to minimal scrutiny based on the circumstances and on how plausibly innocent or laudable the purpose of the rule is. Unfortunately, “sexual orientation” (and to a lesser extent gender/sex) have not been criteria that have been regarded as suspect classes, warranting strict scrutiny (The U.S.A., after all, did fail to ratify the Equal Rights Amendment for women).
My gut feeling — and that’s all that it is — is that in this Hastings case, the university will win, because the Christian Legal Society wants to continue to receive publicly-subsidized assistance and sponsorship from the university, and the price of receiving it is that the Society must continue to comply with the same rules that apply to other officially-recognized university clubs. Tough luck. I expect a 5-4 or a 6-3 decision in favor of the university.
Benjamin Nelson (#20) said:
Ah, but one must remember that no matter how much the group’s lawyers distort reality in favor of their case, the facts are still the facts: The group DOES discriminate on the basis of sexual preference – which is a status and not a belief, no matter how the group’s lawyer would like to portray it – and the group clearly does think “that their right to be shoulder-to-shoulder in their faith implies they can discriminate on the basis of sexual orientation.”
The group’s attempt to weasel out of the charge of discrimination in advance is readily discernible in their statement that “unrepentant participation in or advocacy of a sexually immoral lifestyle” is inconsistent with their statement of faith. Theoretically, this allows homosexuals to become full members of the group – albeit only if those students express sufficiently “Christian” self-loathing for their own sexual identity. However, “unrepentant participation in or advocacy of a sexually immoral lifestyle” is an incredibly loaded phrase that imbeds status in the language of belief: The group insists that, according to their Christian beliefs, the only sexually moral lifestyle occurs within the bounds of marriage between a man and woman, sanctified by God and all that rot. This belief automatically excludes homosexuals simply because they are homosexuals: Even if a homosexual student wished to pursue a monogamous, committed sexual relationship with a life partner – and even if the homosexual student in question were legally married in one of the states or countries that allow it and under the auspices of a Christian church that allows it – his or her marriage would still constitute”unrepentant participation in or advocacy of a sexually immoral lifestyle” in the eyes of the group. Thus it is clear that it’s the mere fact of their homosexuality that de facto excludes gay students, not their religious beliefs.
Consider the following analogy: Suppose that the particular religious beliefs of a given Christian sect insisted that the only sexually moral lifestyle is conducted within the sanctified bounds of marriage between people of the same race. This is hardly a theoretical radical Christian sect, given American sociocultural history and the fact that anti-miscegenation laws were only struck down by Loving v. Virgina in 1967. Would a student group limiting members on the basis of a statement of faith in this Christian sect be able to win a religious discrimination case in defense of their exlusion of students in interracial marriages for their “unrepentant participation in or advocacy of a sexually immoral lifestyle”? I hope not!
Now it may be that the Christian Legal Society could still win a case before the SCOTUS because (1) sexual identity is not a “protected status” under U.S. legal statute and precedents, and (2) the current SCOTUS is overloaded with religious conservatives who have shown comparatively little compunction about adjudication based on their own ideological and religious convictions rather than the letter and spirit of the Constitution.
Of course, none of that sophistimicated analysis is necessary to make the moral argument OB was primarily focused on: Top to bottom, those who would dictate morality to others on the basis of their unsupportable, faith-based religious convictions are not only moral idiots, but proud and self-righteous advocates for moral idiocy. A pox on them all!
Thanks very much, Jeff, that’s highly informative. I knew that about suspect classes but had also forgotten about it – perhaps because I find it ever so slightly annoying.
What are the suspect classes? Jeff, I need a quick lesson on this. Race, obviously, since the 14th amendment was originally about stamping out slavery, but what else? I’d have thought that sex and sexual orientation would be the obvious ones. I’d hate to see it extended to things like belief or culture. But what has the court actually declared to be “suspect” so far?
Well one thing I can say for the US is that it is most unlikely (via the legislature or the courts) to make things like belief or culture a suspect category. That would be too obvious a flouting of the First Amendment.
I suppose much of the reason for the caution about suspect categories is libertarian in nature. If there are too many suspect categories and too many laws aimed at fixing things then there is too much encroachment on various liberties.
Don’t mind me; just ruminating in Jeff’s absence.
Russell,
Here is a fairly complete one-web-page summary of how different levels of scrutiny are applied in Equal Protection cases, based in part on whether or not a suspect class is the “target” of the challenged law or regulation:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm
Note that the lowest level of scrutiny (Does the governmental classification have a rational basis, and are people or businesses in similar circumstances being treated similarly or the same?) is applied to most legislative or regulatory classifications that are intended to regulate commercial or economic activity or promote public safety.
Again, this multi-level equal protection analysis, and the issue of whether a suspect class[ification] is being used to categorize people and their treatment, are only relevant in cases where a federal, state, or local government has taken or is taking action, by passing or enforcing a law or regulation, etc.
The highest level of scrutiny (strict scrutiny) is applied, and the law or rule therefore has a greater chance of being struck down, when a fundamental right (exercising the right to vote and have one’s vote counted, a citizen’s right to move from state to state, the right to marry and procreate, effective access to the courts and legal representation) is burdened or when a suspect class is involved. I’d say the only classifications that are definitely “suspect” are race, national origin, and religion.
The web page I cited says (consistent with my incomplete knowledge of the case law) that gender and born-out-of-wedlock status are “quasi-suspect” classes, and that sexual orientation is not a suspect class at all under equal protection analysis. Keep in mind, however, that under some Titles of the Civil Rights Act of 1964, sex (gender) and sexual orientation have effectively been added to the list of prohibited bases or pretexts for unlawful discrimination, and that in the context of employment and public accommodations, private parties (no “state action” involved) can be liable for unlawful discrimination, sometimes for using classifications that are not “suspect classes” under Equal Protection analysis.
Apropos “freedom of association” and whether private clubs can exclude certain persons from membership, see this page on the same website: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/association.htm
which contains links to the opinions in Boy Scouts of America v. Dale and Roberts v. United States Jaycees.
So far, fortunately, mere “belief” (belief in astrology, or that vaccines cause autism, or that gay people are subhuman or bound for hell, etc.) is not a basis for arguing that a law or rule has used a suspect class[ification] and therefore should receive strict scrutiny. It’s quite a stretch to say that a statute (or a university policy) that forbids discrimination by a state-subsidized club should receive strict scrutiny because the “belief” that homosexuality is sinful has traditionally had a religious basis, and therefore a suspect class (“religion”) is implicated. Thank goodness we not there, yet. Lord Carey, are you listening?
I submitted an answer to Russell’s query about “suspect classes” but it must still be in moderation. If it evaporated, I’ll try again later. In the meantime, here are two useful web pages, which I cited in my earlier comment this morning:
On Equal Protection analysis, “strict scrutiny,” and suspect classes: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm
On freedom to associate and not to associate for “private” clubs: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/association.htm
Many thanks Jeff. It was in mod but now it’s out.