July 11, 2006

Religious Rights vs. Gay Rights

In the continuing battle between Christian groups and public universities over anti-bias policies, the religious students won a key round Monday. In a strongly worded, 2-1 decision, a panel of the U.S. Court of Appeals for the Seventh Circuit made permanent an injunction barring Southern Illinois University from enforcing its anti-bias rules with regard to the Christian Legal Society. The society maintains that it should be entitled to bar from its group anyone who engages in certain activities, including gay sex, and the university has said that this policy violates its rules against discrimination on the basis of sexual orientation.

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The decision is only on the question of an injunction, not the merits of the case. But the logic of the appeals court’s ruling would make it difficult for the university to prevail. The court accepted the Christian students’ argument that enforcing the anti-bias rules violated the religious freedom and free expression rights of the students in the Christian Legal Society, known as CLS.

“CLS’s beliefs about sexual morality are among its defining values; forcing it to accept as members those who engage in or approve of homosexual conduct would cause the group as it currently identifies itself to cease to exist,” says the decision, by Judge Diane S. Sykes. “What interest does SIU have in forcing CLS to accept members whose activities violate its creed other than eradicating or neutralizing particular beliefs contained in that creed?”

The dispute centers on whether the society should be recognized as an official student organization — a category for which the university requires that groups abide by its nondiscrimination policy. The issue of whether religious groups must comply with policies that they say violate their beliefs is one that is increasingly contentious in academe. In April, a federal judge rejected arguments of a Christian group challenging the anti-bias rules of the University of California’s Hastings College of Law.

Casey Mattox, litigation counsel for the society, said the group was “very, very pleased” with the decision because it “orders Southern Illinois University to respect the rights of our chapter.” Mattox said an important part of the decision — which he said he hoped would influence other judges — said that the society’s policies did not discriminate on the basis of sexual orientation.

The decision notes with approval that the CLS has stated that it would admit as members gay people who don’t have sex, or people who used to engage in gay sex (or any sex outside of a “traditional” marriage), but who have stopped doing so. These policies back the society’s contention, the decision says, that it excludes students based on conduct, not on orientation.

Mattox elaborated that the society would bar all kinds of students who engage in “sinful” activities that have nothing to do with sex, citing as an example a student who cheated on tests. “We’re not focused on sexual activity,” he said. “The problem is that Southern Illinois’s policy, like that of many universities, focuses on sex. There is no anti-discrimination policy about lying.”

The appeals court also questioned whether Southern Illinois was enforcing its rules fairly. Under several Supreme Court rulings, a key test of whether a public entity’s rules are constitutional is whether they are “viewpoint neutral.” In this case, the appeals court found that the policy met that requirement on “its face,” but it cited “strong evidence” that the Christian group was held to a higher standard than other groups. The court said that other religious groups limited membership to those of their faith, and that a women’s group admitted women only — in apparent violation of the policy — without losing their recognition.

Jerry Blakemore, general counsel for Southern Illinois, said he couldn’t comment on the university’s plans to respond to the decision because it was still being reviewed. Because the Christian group (currently just a handful of students at the law school) won a temporary injunction last year, it has been recognized lately. But Blakemore took exception to the idea that the university was treating the Christian group differently from how it would treat other groups.

“We literally have more than 400 student organizations. If there is a complaint made about violation of the policy, then the university investigates that claim,” he said. “In this circumstance, CLS had a vote and said that they would not comply with the nondiscrimination and it put us in the position of either enforcing our policy or not, and that’s what happened. If any other organization would have done the same, we would have taken the same action.”

A dissent in the case, by Judge Diane Wood, argues that the majority decision was based on insufficient evidence and a misreading of the law. On the question of evidence, Wood’s dissent asks whether there is evidence to back up the contention of the CLS that it would be open to celibate gay people as members.

On the question of the law, she questions whether the Christian group really suffered a loss of freedom of expression by being denied recognition as a student group. The dissent notes that non-recognized groups and their members are free to meet, to share their views with others, and to engage in a wide range of activities without the support of the university. “The Supreme Court has often drawn a line between rules that compel conduct and rules that merely withhold benefits,” the dissent says.

— Scott Jaschik

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