Faithful Discrimination: Are Non-Discrimination Policies Themselves Discriminatory?

Below is my column this morning on conflicts forming around non-discrimination laws and free exercise. Much of the attention this term in the Supreme Court has focused on the campaign finance ruling striking down limits on corporate spending. However, an equally (if not more) important case has been given little attention before its oral argument on April 19, 2010. Christian Legal Society v. Martinez is the classic “sleeper case”: a case that has a low profile but could have a sweeping impact on our society. While the immediate issue is the refusal of the Hastings College of Law in California to recognize the Christian Legal Society (CLS) as an official student organization, it is a case that could address a growing conflict between anti-discrimination laws and the free exercise of religion. The question is whether anti-discrimination laws are themselves discriminatory against some faith-based organizations. Notably (while it was cut for space), we have followed other cases around the country and the world. This includes Philadelphia evicting the Boy Scouts from a historic building after over 70 years (here).

This is not a unique problem for the United States. For example, in England, the famous Jewish Free School (founded in 1732) denied entry to a student because he was not viewed as Jewish under orthodox rules since his mother was not Jewish as opposed to his father. (His mother converted to Judaism). An appellate court ruled that the use of such religious principles violated anti-discrimination laws and that the school had to admit students that it does not consider Jewish (here).

Universities have also struggled with the line between non-discrimination and religious values. Harvard recently was criticized for setting aside time in a student gym for only women to accommodate the customs of Muslim women who could not exercise in the presence of males (here).

Here is the column:

Can a nondiscrimination policy be discriminatory?

That question, bordering on legal Zen, will be before the Supreme Court on Monday when the justices hear oral arguments in a case brought by Christian law students at a public university in California. The students found themselves on the wrong side of a nondiscrimination policy when they tried to restrict their organization’s leadership to students who adhere to their values. What the Christian Legal Society (CLS) viewed as central to its beliefs the Hastings College of the Law saw as discrimination against non-Christians, homosexuals and others.

The case, Christian Legal Society v. Martinez, has the potential to resolve a long-standing conflict between two of the most cherished American traditions: equality and nondiscrimination on one hand and the free exercise of religion on the other. The United States has taken great strides in recent years to protect people from discrimination — including hate speech, unfair hiring practices and unequal treatment under the law. But to some, such gains in equality have come at a price. Religious groups that discriminate — confining their membership to the faithful and those who share their views — say they are being penalized.

This specific controversy began at Hastings, part of the University of California, when CLS members asked to become a registered student organization. With that designation, the group could apply for certain funding, send mass e-mails to the student body and participate in an activities fair, among other perks. Hastings said no. The school concluded that because the CLS bylaws barred non-Christians, gays and non-celibate students from serving as officers or voting members, the group violated the school’s ban on discrimination “on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” The CLS could still meet on campus but could not be a registered club unless it opened its membership to all, even those who didn’t subscribe to its beliefs. The group challenged the school, and lower courts supported the Hastings policy as a neutral rule applying equally to all groups.

The seeds of this conflict were planted decades ago, when courts began to rule that organizations could be denied benefits because of their discriminatory religious beliefs or practices. In 1983, the court handed down a sweeping decision in Bob Jones University v. United States that upheld the denial of the Christian school’s tax-exempt status due to its racist policies. Based on its interpretation of Biblical scriptures, Bob Jones would not admit any student in an interracial relationship. While the policy was faith-based, the court held that the IRS could deny the school tax-exempt status because the practice was against the “public interest.”

In such cases, the court set two lines of jurisprudence on a collision course. And that’s the point we’ve reached in CLS v. Martinez. One line protects the free exercise and free association rights of religious organizations against government actions. The other line supports the right of the government to enforce anti-discrimination laws — and to define which groups are protected from discrimination. The result for religious groups can be devastating: denial of benefits such as tax exemption and the use of public facilities unless they adhere to nondiscrimination policies.

The Hastings dispute is being replicated across the country as cities and states enforce nondiscrimination policies against religious organizations. In Washington, after the District’s legalization of same-sex marriage, Catholic Charities decided not to provide spousal health benefits for any new employees in order to avoid penalties for not offering coverage to the same-sex partners of its workers. In Los Angeles, the police department cut ties with a youth group connected to the Boy Scouts because of the latter organization’s position against homosexual Scout leaders. In Boston, Catholic Charities stopped its adoption work because of the demand that it not discriminate against same-sex couples. And in Connecticut, the government has barred organizations with anti-homosexual policies from a list of groups to which state employees can give automatic charitable contributions.

These conflicts are forcing courts to confront the reality that most religions are based on exclusivity principles and, to some extent, discrimination. Whether it is the chosen and the unchosen or the faithful and the infidel, religions define their members in part by the adherence to a set of moral strictures. In Matthew 4:4, Jesus says, in reference to the Old Testament, that “every word . . . comes from the mouth of God.” That does not allow much wiggle room for many in tailoring their views to meet societal demands.

Of course, the Constitution protects religious groups from the demands of the majority in the free exercise of their faith. But increasingly those organizations are being told that, unless they change their practices, they will be penalized. Since their practices are based on their principles, the nondiscrimination policies may be achieving indirectly what the government is barred from doing directly.

CLS v. Martinez is a close and difficult case. The court has to weigh fostering diversity of views vs. combating discrimination. The nation benefits when citizens form groups and advance their ideas. Tax-exempt status is even given to groups to encourage association and free speech — important pillars of our society. We cannot pick and choose between groups if we are to allow for pluralism.

The same is true with college groups. A campus offers a cradle of free speech where students can form organizations that foster the exchange of ideas and values. Supporting such groups should not be viewed as endorsing their beliefs but rather as encouraging associations. And as the court stated in Roberts v. United States Jaycees in 1984, “Freedom of association . . . plainly presupposes a freedom not to associate.”

While there are strong arguments for upholding the Hastings policy, the CLS was effectively denied recognition because of its religious views — a troubling practice that could easily extend to other groups. For example, some Muslims following Wahabi principles insist that women must be covered and sit separately from men. Likewise, some Orthodox groups such as Hasidic Jews mandate areas divided by gender and require strict dress codes. To insist that Wahabi or Hasidic groups allow anyone to join, including gay and non-conforming members, would create an obvious problem.

Schools can still adopt a nondiscriminatory policy by funding either all or no student groups. That was the choice the Supreme Court gave the University of Virginia in its Rosenberger decision in 1995, after the school refused to pay for publications for religious organizations on campus: Fund all or none.

The question in the current case is where to draw the line. Schools such as Hastings are legitimately barred from discrimination in hiring and promotions. However, barring student organizations based on their religious views puts the state in the position of bestowing favored and unfavored status on groups.

We need to accept that certain forms of government support are meant to foster associations generally and should not turn on the insular views of any particular group. For example, tax exemption should aim to encourage citizens to participate in our society through groups that deepen public debate. These associations not only help individuals define their own values, they also protect the pluralism that defines our nation.

Such neutrality does not mean discrimination is a protected religious right, allowing the faith-based Ku Klux Klan, for example, to engage in public acts of racial hatred. Groups can still be punished for criminal threats, and laws still prohibit discrimination based on race, gender and national origin.

Moreover, no discrimination should be allowed in government-funded social programs. As president, George W. Bush instituted broad funding of faith-based programs, and President Obama has continued that support. That initiative is directed not at supporting specific religious viewpoints but at advancing public goals such as education, health and combating drug addiction.

The Supreme Court has an opportunity in CLS v. Martinez to recognize — and possibly reconcile — the conflict between nondiscrimination and the right of association. Religious groups are feeling a wall closing in on them as they face penalties for the expression and exercise of their views in public settings. For them, the wall between church and state is becoming a cell. We cannot cage faith and claim that we are a pluralistic society.

Ironically, penalizing groups for religious discrimination, in the name of fostering equality, could hamper greater recognition of gay rights. Same-sex marriage, for instance, is unlikely to gain majority support if a vote for gay rights is seen as a vote against the rights of faith-based groups. As we move toward greater recognition of gay rights — as we should — we need to assure religious groups that it doesn’t mean they will be punished for their views.

In the end, no one will win if equality is seen as a zero-sum game.

Jonathan Turley is a law professor at George Washington University.

Washington Post Sunday: April 16, 2010

23 thoughts on “Faithful Discrimination: Are Non-Discrimination Policies Themselves Discriminatory?”

  1. lottakatz, thanks for thinking of me, but I’m alive and well. Mike Spindell has not been well, however, and we are all hoping for his full recovery.

    Tootie, I actually find myself in general agreement with at least part of your comment on this issue. It is a money issue. However, it needn’t be. No special interest student group, whether religious, political or social, requires a subsidy from a university to exist. It merely requires members with a common purpose. I belonged to a Catholic student group while attending a private, secular college and we neither received, nor expected to receive, any university funding.

    The issue before the Court was bound to arise at some point. The enactment of faith-based initiatives legislation has demonstrated the increasing influence of religious groups in public institutions. I believe it is a dangerous trend which, unless reversed, will produce more such cases. The bottom line is simply this: if you don’t want to be subjected to the restraints imposed by the demands of equal protection, don’t ask for public tax dollars.

  2. The question turns on money.

    The govenment sends money to this school and to similar schools, thus they are no longer private and MUST allow any group, based on equal protection to have a share of the liberties guaranteed to any group (barring groups promoting illegal activities).

    In private schools where NO federal dollars go (there are only two I know of) there doesn’t have to be any such allowances to student groups. All students groups must adhere to the schools rules.

    Equal protection would demand, in my opinion, that there be no clubs or all clubs and that each club should have rules which allow for them to retain their unique character, otherwise why have a unique club?

    The problem is that selfish pigs demand to write the rules of other peoples’ clubs, instead of starting one of their own with any dumb-donkey rules they wish to adhere to.

  3. Blouise, I’m sorry to hear about your situation also. ‘Full recovery’ is out of the question in my household but keep’n on keep’n on has it’s virtues 🙂 My best to you also.

    Did I read a reference that Mike A is also ill? Darn, I’m just going to cross my fingers for everyone on the blawg. Stay well guys.

    mespo727272: ‘et maritus’, I like that, thanks!

  4. lottakatz,

    I’ve been dealing with a similar situation and send you and your better half sincere wishes for full recovery and peaceful evenings.

  5. LK:

    Glad things are better around the house and you’ll be joining us more regularly. Speedy recovery to et maritus.

  6. mespo727272, Blouise, AY, thanks for the shout-out. The better half had been seriously ill for about 10 weeks and I’ve been occupied. He’s been home now for a couple of weeks and is recuperating. I have dropped in to read but haven’t really been posting anywhere for around the last 3 months. I look forward to visiting more often now though.

  7. Where have you been LottaK?

    Checking out the music scene in Austin. I saw Willie in a interview and they asked him the last time he smoked weed. His response was right before this show. The person said like before you came here today. Willie true to form said, No Right before we came on this show.

  8. As a follow up…

    This case also seems like a re-litigation of Rosenberger. The only difference between these cases is that in the Rosenberger case the funding was channeled to a religious publication behind a disclaimer of third party neutrality. This group would be directly tied to university with no third party shield.

    In my imaginary better world with a different court makeup, this case would be a perfect opportunity to expand Souter’s Rosenberger dissent into a majority opinion that bans state money from discriminatory student groups.

  9. The problem with this case and others like it is that when a student organization with discriminatory practices is given recognized status by a university and more importantly, funding, the very people they discriminate against will be forced to subsidize the group through student fees.

    That isn’t to say that there should be a brightline rule requiring all student funds go to groups that are non-offensive to everyone. That would be absurd and effect essentially all student organizations.

    The right of free exercise is very closely tied to the right of association in this case. If a racially discriminatory group applied for registered status it would probably be rejected. The same should hold true for this religiously discriminatory group. Their free exercise is not being abridged by its inability to gain equal status among other groups. The group can still exist, but it should exist without drawing on the resources of those it discriminates against.

  10. From article: “Of course, the Constitution protects religious groups from the demands of the majority in the free exercise of their faith. But increasingly those organizations are being told that, unless they change their practices, they will be penalized.”

    Like Nal, I would not agree that withholding a benefit or favored position is a “penalty” if to gain that benefit one must conform to certain rules that are non-exclusionary and legal.

    Non-discrimination (on various basis) having been determined to advance the cause of the nation and certain institutions, is then an appropriate place to draw a baseline between those aspects of official recognition by the government or institutions which constitute simple business as usual versus the bestowing of favors or perks.

    This group wasn’t banned from campus, which would have actually violated the non-discrimination position of the university, it simply didn’t get any favors or perks due to its discriminatory practices. I agree with that principle.

    Or as one of my favorite songs explain it: “How can you have any pudding if you don’t eat your meat?”

  11. Do as mespo suggests then tax every group remaining thus removing the carrot/stick notion from the equation.

  12. I’ve had this discussion with others I’ve encountered regarding tolerance. Some find it upsetting that while they’re expected to be tolerant of people of other religious beliefs, sexual orientations, etc., no one is expected to be tolerant of their beliefs in these regards. The notion that I should be tolerant of bigotry because it falls under the guise of religious beliefs or tradition is repugnant to me, and to me seems clearly distinct from the true notion of tolerance. I should be tolerant of people’s beliefs in regard to themselves, but there is no need for me to tolerate someone’s treatment of another person or group of people.

  13. Discriminating against those who would discriminate based on principle (the pretext of all discriminators) is no offense to the notion of equal protection. The government has a non-discrimination policy and seeks to enforce that societal good. Groups founded on and practicing exclusivity under divine sanction are an anathema to democratic principles and will inevitably collide with notions of equality and inclusiveness.

    As usual, Jefferson said it better than I could even imagine:

    Every society has a right to fix the fundamental principles of its association, and to say to all individuals, that if they contemplate pursuits beyond the limits of these principles and involving dangers which the society chooses to avoid, they must go somewhere else for their exercise; that we want no citizens, and still less ephemeral and pseudo-citizens, on such terms. We may exclude them from our territory, as we do persons infected with disease.

    ~Thomas Jefferson to William H. Crawford, 1816.

    In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own.

    ~Thomas Jefferson to Horatio G. Spafford, 1814.

  14. Old creaking redwood
    Waiting for the tree to fall
    Silent still forest

  15. I can’t agree that not favoring religious groups, via tax exemptions, is a form of penalization.

  16. Another problem is that universities often allow discrimination, as long as it is discrimination they regard as socially acceptable, such as the exclusion of women from all-male fraternities. And other times they don’t allow discrimination, such as refusing to recognize a fraternity or religious organization that only allows whites or excludes Jews. So the ultimate question is, who gets to decide what is an acceptable exclusionary policy and what is not?

  17. All I can say is wow. Good catch and the Anti=Discrimination laws that some of the White Males complain so much about will come to protect the next generation. If you can think outside of the time frame it is set within.

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