In 2008, Eugene, Andy Koppelman, and I appeared on a Federalist Society panel on “Freedom of Speech v. Antidiscrimination Law.” It so happens that I was asked to address the question raised in Martinez, whether a public university may ban a student group from discriminating on the basis of sexual orientation. My analysis is a bit different than Eugene’s below. Here’s the transcript, which is available at 31 North Carolina Central Law Review 207 (2009), Westlaw 31 NCCLR 207:
Let’s take our second example, on whether a student group can be denied university funding because it discriminates based on religion or sexual orientation in choosing its officers or members. So let’s assume this is a public university and the funding is therefore akin to the Rosenberger case. This case says that you have to be viewpoint-neutral in your funding, which means the First Amendment applies. The first question is, does the university have a policy that all student groups must be open to all students? If you want to run a student group, if you want funding, everyone has to be allowed to have equal access to that group. If so, I think there’s no First Amendment issue.
I think the university could have that policy if it considered its student groups to be part of the educational experience. Just like I, as a professor, can’t exclude people from my class on any particular basis, if you have a policy that student groups couldn’t do that, I think that would be fine. I think it would be a foolish policy. So, for example, if a student gay group in University of Mississippi is forced to allow conservative Christians to be members and officers, the conservative Christians could take over the group and change the basis of the group from helping gay students to try to convert them to heterosexuality. So I think it’s a wise policy let student groups decide who their officers and members should be, but I don’t think it’s constitutionally required if it’s a neutral policy.
But what if, on the other hand, university policy is that Republicans are free to exclude Democrats from the college group. Democrats are free to exclude Republicans. The student NRA is allowed to exclude pacifists. Pacifists are allowed exclude gun nuts and so forth and so–no offense.
Professor Bernstein:–and so forth and on. But gay students aren’t allowed to exclude Christians who have conservative views on sexuality, or Christians aren’t allowed to exclude gay rights activists. Given that the right of expressive association is implicated, so there is a First Amendment interest here, then the university is engaging in viewpoint discrimination. And I think in that case, the student group would have a very plausible and hopefully winning argument before the courts that they cannot be denied funding for exercising their expressive association rights when other groups are permitted to decide who their members and officers should be.
And one last thing about that. We have to differentiate, even then, between status-based discrimination and ideology-based discrimination. So, I would think there would not be an expressive association right if the Christian group, for example, was excluding someone of homosexual orientation but who profess to agree with their Christian values, who says, “I do not engage in homosexual activities; I think it’s a sin, but I happen to prefer men in my mind to women for sexual purposes.” [This might even apply to someone who says, "I do engage in homosexual activities, but I agree with you that it's sinful; just like many of you engage in fornication, masturbation, gambling, drinking, etc., even though you know it's sinful.] And similarly, if, for example, the Christian group said we won’t take someone born Jewish who now professes Christianity, that would not be an ideological expressive association discrimination based on someone’s viewpoint, but instead they would just be discriminating based on someone’s status, a person of Jewish descent.
Sara says:
Foolish? Administratively, isn’t the all students rule easier to apply than having the University decide who is religious and who is gay?
December 8, 2009, 11:52 amsk says:
“So, I would think there would not be an expressive association right if the Christian group, for example, was excluding someone of homosexual orientation but who profess to agree with their Christian values, who says, “I do not engage in homosexual activities; I think it’s a sin, but I happen to prefer men in my mind to women for sexual purposes.” [This might even apply to someone who says, “I do engage in homosexual activities, but I agree with you that it’s sinful; just like many of you engage in fornication, masturbation, gambling, drinking, etc., even though you know it’s sinful.]”
I disagree with this, and it seems like you are attempting to compromise simply because you like to compromise.
Three situations:
1) Christian group bans homosexual activity, thoughts, preferences.
2) Christian group bans homosexual activity, but not thoughts or preferences.
3) Christian group bans nobody.
The first amendment absolutist says 3) is required. Christian groups say 1) is acceptable. You say 2) is required.
But I don’t follow the constitutional requirement for such hairsplitting. Why is it ok to ban people for their viewpoint (I think homosexuality is ok), but not behavior (I think homosexuality is wrong, but I occasionally lapse and do it, or think it)? In fact, your interpretation seems odd: the first amendment states that it is ok to ban students based on beliefs (thinking homosexuality is ok), but not behaviors (engaging in homosexual acts).
Further, your analogies don’t hold up either. It may be that a Christian group would allow members to stay in who stray (by gambling, drinking, masturbation, fornication, etc), or it may be that a Christian group wouldn’t-perhaps it is a strict Christian group (perhaps a Young Democrats club expels anyone who ever votes Republican). I can’t imagine why there is a constitutional argument (not moral or ethical argument) saying that such groups are constitutionally REQUIRED to allow straying members to stay. And so with homosexuality.
The entire argument makes so little sense, I assume it is just a compromise: you don’t want to force Christian (or political, ideolotical, and so on) groups to be constitutionally required to commit suicide, but you don’t want to be seen as agreeing with them, or letting them ‘win’ the argument?
Lawyers may like compromises, and we as individuals may like compromises and second chances, but it would be a bizarre constitutional interpretation that says we are constitutionally required to compromise in membership decisions with regard to the clubs we attend. And, as mentioned, it seems a bizarre first amendment interpretation to allow exclusion based on belief (you can be banned for declaring belief in homosexual rights), but forbid exclusion based on behavior (you can’t be banned for actually engaging in homosexual activity, as long as you say the right things). Freedom of Association doesn’t need to be micromanaged in this manner.
Sk.
December 8, 2009, 12:10 pmloki13 says:
Again, I don’t understand the need to erect this boogeyman of takeovers. Maybe things are different now, but when I was in law school (not too long ago) and when I was in UG (some time before that), both schools had a policy that all student groups were open to all students.
Amazingly, there were no “hostile takeovers” of any student groups. If anything, the problem most student groups had was getting enough like-minded people to join (students being a somewhat-apathetic lot). With all the variety of experiences available to students, most (if not all) would prefer to spend their time in groups that, well, advance their interests instead of plotting the destruction of other groups.
Considering that I personally know of schools that have this policy, could you provide examples where students have abused the “all student” policy to take over a student group?
December 8, 2009, 1:10 pmloki13 says:
BTW, I scrolled down and saw Prof. Volokh’s post on the subject involving Scientologists. Again, looking for a campus setting. Maybe I’m a brainwashed arugula-eater that went to elitist schools whose groups got along, but I would love to see an example in the college setting where this has happened.
Student groups should be open to students. Strangely, the ideologies tend to be self-sorting.
December 8, 2009, 1:14 pmDerHahn says:
sk, who is splitting hairs? DB lays out a pretty clear rule – Student organizations can determine the qualfications of their members and officers with a limited number of restrictinos from the school administrations (must be active students would be one, IMO), and it is up to the objector to prove that the rejection is based on non-ideological grounds.
It’s your crew that’s tieing yourselves in knots to approve discrimination in membership by Black Student This, Lesbian Student That, and Muslim Student Whatever while denying that right to non-PC groups.
December 8, 2009, 1:19 pmJoseph Slater says:
Loki13:
No, you’re right, students rarely if ever try to “take over” student groups and twist them to radically different purposes. Liberals are happy in liberal groups and feel no need or desire to take over conservative groups and vice-versa.
This is an odd situation because some Christians think being an unrepentant gay man or lesbian is fundamentally incompatible with being a Christian, and other Christians believe it is not. So the real fight is over what “Christianity” is/means in this context. That, plus the fact that the national CLS organization is taking a position (no unrepentent gays or lesbians) that is contrary to explicit anti-discrimination rules of law schools.
The above is not an argument as to how the case should come out, on legal, ethical, or religious grounds. Just a suggestion that practically speaking, this type of issue has not and almost certainly will not come up with most other kinds of student groups.
December 8, 2009, 2:13 pmPubliusFL says:
How do you see it as different from, say, a socialist student group torn by disagreement over whether “true socialism” means Marxism-Leninism, Trotskyism, Maoism, etc.?
December 8, 2009, 2:32 pmJiffy says:
I agree that the “takeover” concern is overblown, if not entirely theoretical. Take a look at the list of student organizations at Berkeley, for example. Seems like a huge diversity of organizations is able to exist.
But if a student organization did have a legitimate concern about “takeovers” there are nondiscriminatory defensive measures they could take. Groups might increase the barriers to membership (e.g., pass a rule that you must attend four meetings before becoming a member) that could make it too much trouble for large numbers of opponents to join.
December 8, 2009, 2:41 pmRandy says:
Loki is 100% right, in my experience. I attended a very large public university that had dozens of student groups. Having sat on various student funding boards and such, this very topic would come up once in a while, but only as a hypo. We never had a case of any group suffering because of a hostile take over. If such a thing were to happen, though, I would imagine that the affected students would lose interest in that group and just start another group. It’s much easier to do that.
Again, Loki is correct that most student really want to spend time with like minded students. If you are a liberal and want a hostile take over of the Federalist Society, you can probably try to do it. But it would take so much time, energy, effort and so on, with no gaurantees you will succeed, that I’ve never even heard of such attempts taking place.
And even if they did somehow succeed, again, the other students can just go off and form their own group. Or wait a year, and most of the troublemakers will have either graduated or moved on to some other cause.
If it ain’t broke, don’t fix it.
December 8, 2009, 2:44 pmRandy says:
Publius: “How do you see it as different from, say, a socialist student group torn by disagreement over whether “true socialism” means Marxism-Leninism, Trotskyism, Maoism, etc.?”
Simple. They argue and fight over it. They might come to an agreement, or they might not. They might take votes about it, which will settle the matter until the next year when a new crop comes in and wants another vote taken.
In other words, they are learning the value of debate, compromise, democracy, and settling matters in a civil manner rather than killing each other. And if they want to spend their time arguing with each other, that’s much better than having a united front and trying to push it on others.
December 8, 2009, 2:48 pmsk says:
DerHahn:
I think DB is splitting hairs, but perhaps I misunderstood this statement:
“So, I would think there would not be an expressive association right if the Christian group, for example, was excluding someone of homosexual orientation but who profess to agree with their Christian values, who says, “I do not engage in homosexual activities; I think it’s a sin, but I happen to prefer men in my mind to women for sexual purposes.” [This might even apply to someone who says, “I do engage in homosexual activities, but I agree with you that it’s sinful; just like many of you engage in fornication, masturbation, gambling, drinking, etc., even though you know it’s sinful.]”
If I’m reading it correct, DB thinks its ok for Christian groups to exclude homosexuals, but not if those homosexuals proclaim themselves Christian! Apparently, if you say you think homosexuality (or gambling, drinking, etc) are sins, the State can compel a Christian group to accept your membership, even if you actually engage in homosexuality, drinking, gambling-because you have said the right things, I guess.
For the record, I support groups’ ability to discriminate: that is what makes them like-minded groups.
“It’s your crew that’s tieing yourselves in knots to approve discrimination in membership by Black Student This, Lesbian Student That, and Muslim Student Whatever while denying that right to non-PC groups.” Thus, I’m not sure where this is coming from.
” This is an odd situation because some Christians think being an unrepentant gay man or lesbian is fundamentally incompatible with being a Christian, and other Christians believe it is not. So the real fight is over what “Christianity” is/means in this context.”
I don’t think so. I think the fundamental issue is whether groups should be allowed to set membership rules for themselves. It really doesn’t matter what ‘Christianity’ is/means. It matters what the particular members of a particular group think ‘Christianity’ means. They are free to agree or disagree with other groups or national organizations. I’m not sure why agreement or disagreement with other ‘Christians’ not in the group makes any difference whatsoever.
sk
December 8, 2009, 2:51 pmEMB says:
Why do people keep making this argument with no evidence at all that it has ever happened? (Maybe it actually has happened somewhere–I’d still love to hear the details if so!)
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December 8, 2009, 3:05 pmDavid Bernstein says:
You’re missing the point. As far as I can tell, all denominations agree that homosexual orientation isn’t a sin, just homosexual conduct. Therefore, if someone who is of homosexual orientation but does not engage in homosexual conduct is excluded, the group is doing so for reasons not tied to their religious views. The case of someone who professes to believe that he is a sinner because he engages in homosexual conduct is tougher. But let’s say that a Christian group will accept professing Christians who engage in any sin (fornication, gambling, theft, dishonoring one’s parents, etc) EXCEPT homosexual conduct. And that they can’t identify a theological reason for this distinction. It strikes me that they are then discriminating against homosexuals for non-religious reasons, but just because they don’t like homosexuals. And that’s something a private university can prohibit.
December 8, 2009, 3:13 pmDavid Bernstein says:
I understand that a radical leftist student periodical at my alma mater, Brandeis, was taken over intentionally by moderates and left to rot, and ceased to exist. Much more famously, though not limited to a university context, SNCC was taken over by radicals who opposed the very original basis (non-violence) of the organization. Young Americans for Freedom in the late 60s and 70s faced various attempts by insurgent libertarians to take control of student chapters.
The New York Libertarian Party a few years back was briefly taken over by Howard Stern fans, who nominated him for governor.
In any event, the constitutional principle that protects an organization from having its ideology perverted by outside agitators does not depend on it being a common occurrence.
December 8, 2009, 3:18 pmRandy says:
Derhahn: “It’s your crew that’s tieing yourselves in knots to approve discrimination in membership by Black Student This, Lesbian Student That, and Muslim Student Whatever while denying that right to non-PC groups.”
Nope. You are assuming that they discriminate. At least at my school, a large public university wtih 25,000 students, the Black Student Association, the Puerto Rico SA, the Muslim SA, and the GLBT groups were all open to anyone. So yes, a white person could join the Black SA.
Again ,make them all open to every student so that anyone can be a member. Why would that be a problem for anyone?
December 8, 2009, 3:40 pmRandy says:
DB:”I understand that a radical leftist student periodical at my alma mater, Brandeis, was taken over intentionally by moderates and left to rot, and ceased to exist.”
So what? If the leftists didn’t care enough to fight for their periodical, then it deserves to die. Or, they could have left and founded a new periodical. You can *not* tell me that’s too difficult!
And this is the point: you have a right to start an organization, but it may grow in ways you don’t anticipate. Welcome to the real world. That’s part of the educational process.
“Much more famously, though not limited to a university context, SNCC was taken over by radicals who opposed the very original basis (non-violence) of the organization.”
Yup. Gosh, who would have thought that sometimes ideology itself changes? The nonviolent students are free to start up another organization that promotes nonviolence.
“Young Americans for Freedom in the late 60s and 70s faced various attempts by insurgent libertarians to take control of student chapters.”
So basically, you want a guarantee that any student group should be able to insulate itself from any changes whatsoever. Good luck with that one. And who says that they have a constitutional right to bind all future members to the one true ideology of the founders? The situation is solved by making it easy to start up your own student group. This reduces the need to take over existing groups in the first place, and in the second place, if it should happen, you just start up another one more to your liking. Everyone wins.
“The New York Libertarian Party a few years back was briefly taken over by Howard Stern fans, who nominated him for governor.”
Quelle horreur.
December 8, 2009, 3:48 pmloki13 says:
It seems that your examples either aren’t sourced or aren’t germane (not college). But here’s the bauty of how this works:
1. People can always form any (private) group they want to. Beauty of America, eh?
2. Let’s say your dreaded hypothetical comes to pass. Let’s say “College Students for X” gets infiltrated by the well-organized Y students. Because, you know, they have nothing better to do. Well, they have to be pretty numerous, huh? Then Y students have their own group! And X students will form their own new “Aewsomer College Students for X.” Why doesn’t this ever happen? Because it’s a heck of a lot easier for Y students to join “College Students for Y.”
3. In the case mentioned above (say, Troskists and Stalinists fighting over the direction of the College Socialist group)- that’s exactly how the process is supposed to work! Eventually, the College Socialists will be dominated by people who are more numerous, and the people who aren’t will…. from their own group. So you’ll have the College Socialists and the New College Socialists.
I’m guessing that either the commenters here never really joined groups in college or enjoy cowering in fear of the mighty hypothetical.
December 8, 2009, 3:53 pmRandy says:
One of the basic tenet of libertarianism is to not stifle free speech. There should be a marketplace of ideas, and the best ideas will win out, and bad ones will be exposed.
If I form a Gay and Lesbian group on campus with the purpose of promoting acceptance of gays and the promotion of gay rights and SSM, I should have the right to form that group, and my group should have an equal chance at funding as another group. This group can and should be open to all.
So then the worst happens — a bunch of troublemakers decide to join group. They hate gays and are against gay rights. A majority of them rule and they change the bylaws and the mission statement. They elect their own leader, who declares that from now on, the Gay and Lesbian group believes that gays should not have any rights and should go back to the closet.
I and my friends have two choices. We can solicit our friends to join and outnumber them and take the organization back, or I can form a new group, call it the Rainbow Group, and start over. (We can do this by everyone kissing at the meeting, thereby grossing out the gay haters and they might just leave) This time, our bylaws will require that you be a member for a full year and have attended at least 75% of the meetings to be eligible to vote for a group leader, and you have to have helped decorate the gym for the annual drag show. That will establish barriers to that sort of problem.
So now you have two gay groups, one that opposes gay rights and one that supports them. Let the marketplace of ideas decide who wins that debate. Again everyone wins.
December 8, 2009, 4:00 pmptt says:
I find all this focus on whether the banned homosexual is sexually active and therefore “sinning” to be odd. In my experience, fundamentalist, evangelical Christians (a clearer description of what this “Christian” group is) are constantly bleating about us “all being sinners”. Surely, if “we’re all sinners”, then it’s pretty remarkable that committing a sin is grounds for expulsion.
As I often say in threads about religious accommodation, if the only thing you’re trying to protect is an anti-gay policy and you ignore rather more fundamental things like theology — divinity of Christ, immaculate conception, etc. etc. — as a prerequisite for association, then what you’re really engaged in is simple anti-gay discrimination.
December 8, 2009, 4:01 pmRandy says:
Loki beat me to it and said it better than me. And I totally agree this is about people who’ve never been in leadership positions in college or never learned how they really function.
ptt is right and not just about college. Whenever it comes to religious rights, it’s never about the right to fire a person who is committing adultery, or failing to honor the sabbath. It’s only about firing a person because he’s gay.
December 8, 2009, 4:09 pmDon Miller says:
If student groups are actually have to be open to anyone, what would be the point of having dozens of different student organizations?
There are multiple different groups because each group has different ideology and different goals. No organization should be forced to accept people into their group who oppose their ideology or stated goals. That is the Right of Expressive Association.
The organization has the right to expel someone from their association who thru their words or actions demonstrates that they don’t support the organization. The organization has the right to evaluate potential members, in advance, to screen out people who don’t support their goals.
Just because an organization chooses a religion as the basis for their goals and/or ideology shouldn’t be basis for not allowing them to screen applicants or troublesome members.
The University has defined their policy in such away that they will only support secular organizations. They don’t want to say that, because they would lose in court. But that was the point and application of the policy.
December 8, 2009, 4:12 pmDavid Bernstein says:
Some organizations have reputational capital, or actual capital, that makes the idea of “just start a new group” not so appealing.
In any event, I’ll just repeat: In any event, the constitutional principle [the right of expressive association] that protects an organization from [establishing rules to prevent] having its ideology perverted by outside agitators does not depend on it being a common occurrence.
December 8, 2009, 4:32 pmChristian K says:
There is another point that is being lost in these hypothetical, historically the student organization in question included the non-discrimination language, in additional to other language required by the college, in their bylaws. It is only recently that they required members and officer’s to sign a “Statement of Faith”. I guess it shows the diversity of Christianity that they would need to be specific about which forms of Christianity were acceptable for membership. I think it’s completely reasonable for a college to have requirements for a organization to be recognized and receive funding, provided those are applied equally.
On a personal note, when I was in college all organizations were required to have similar language requiring that the organization was open to all students and had either an educational or counseling focus. I was a member of several organizations of which I wasn’t part of the titular group. For example I was a member of the Jewish Student Association, even tho I was not Jewish, when I took several units on modern Jewish Lit, the Holocaust, etc. It was a great resource.
December 8, 2009, 4:32 pmKen Arromdee says:
I think the idea is that we’re all sinners, but we can admit we are sinning and repent. Obviously, homosexuals wishing to join an anti-homosexual Christian group wouldn’t fall into this category.
I bet the group would accept homosexuals who admit that homosexuality is a sin and vow to quit it in the way one might vow to quit swearing. I doubt there are many such prospective members, though.
December 8, 2009, 4:33 pmPubliusFL says:
Actually, based on the cert petition, it looks to me like CLS’s policies on sexual morality treat adultery and homosexuality (and heterosexual fornication for that matter) exactly the same way.
December 8, 2009, 4:39 pmSara says:
For heaven’s sake, Is that why the University of California lists these student orgs:
Religious/ Spiritual
December 8, 2009, 4:45 pm4 0’ Clock
Acts2fellowship (A2F)
Adventist Christian Fellowship
Asian American Christian Fellowship (AACF)
Asian Baptist Students Koinonia (ABSK)
Association for Muslim Professional Development (AMPD)
BCBC Breakthrough Fellowship
Berkeley Bahai Club
Berkeley Christian Fellowship (BCF)
Black Campus Ministries @ Cal (BCM)
Buddhist Compassion Relief Tzu Chi Foundation (BCRTCF)
Cal Christian Fellowship–IVCF (CCF-IVCF)
Campus Advance
Campus Evangelistic Fellowship —Mandarin Group (CEF)
Catholic Students at Cal— Newman Hall
CFC—Youth for Christ at Berkeley
Chinese Bible Fellowship
Christians at Boalt
Christians on Campus
Chun Jin Ahm (CJA)
Crossroads Christian Fellowship: Chinese for Christ Berkeley Church
Cru
Destino
Eastbay Bible Institute (EBI)
Eastbay Christian Fellowship (ECF)
Eckankar-Berkeley Campus Group (Eck on Campus)
Falun Gong Club
Fellowship in Christ in Berkeley (FICB)
Fellowship of College and University Students (FOCUS)
For Christ’s Sake (FCS)
Ginosko
Gold – A Member of A2F
Harvest Berkeley
In Christ Alone
Interfaith Action Initiative
International Student Ministries–IVCF
InterVarsity Christian Fellowship (IVCF)
ISM-International Student Ministry (ISM)
Jehovah’s Witness at Berkeley
Kairos Christian Fellowship
KAPWA–IVCF
Koinonia
Korea Campus Crusade for Christ (KCCC)
Korean Bible Study and Koinonia (KBSK)
Korean-American Campus Mission (KCM)
La Fe–IVCF
LDS Student Association (LDSSA)
Livingwater Fellowship (LWF)
MTO Sufi Association
Network of Spiritual Progressives (NSP)
New Church Berkeley College Life
Orthodox Christian Fellowship (OCF)
Progressive students of Faith (PSOF)
Sikh Students Association (SSA)
Students for a Nonreligious Ethos (SANE)
The Remnant Ministry at Berkeley
To An Unknown God
Unitarian Universalist Campus Ministry (UUCM)
Unity in Christ
Veritas Fellowship
Westminster House
World Peace Buddhists (WPB)
World Vision at Berkeley
ptt says:
Anything in there on the number of straight members they’ve expelled?
December 8, 2009, 4:52 pmRandy says:
DB: “Some organizations have reputational capital, or actual capital, that makes the idea of “just start a new group” not so appealing.”
You can’t be serious. What reputational capital? The limit of any reputation is four, perhaps five years, max. I’ve seen students groups get started, flourish, then die off because of apathy in shorter time frames. How many poetry publications get to their second issue?
Even if that’s the case, so what if starting a new group isn’t so appealing. Now you are arguing that operating a student group should be easy, free of dissenting opinions and under the total control of a few people as a constitutional right.
I would like to see the Republican Party take this up. AFterall, they have been taken over by a small group of agitators who are now purging people for their ideological purity and have changed the direction of the party since Reagan’s time. That’s how the world works, unless you are going to seriously argue that Reaganites have a constitutional right to throw out the current leaders.
Don: “If student groups are actually have to be open to anyone, what would be the point of having dozens of different student organizations?”
Um, because students have myriads of interests? Isn’t that enough reason?
“The organization has the right to expel someone from their association who thru their words or actions demonstrates that they don’t support the organization. The organization has the right to evaluate potential members, in advance, to screen out people who don’t support their goals.”
Sure they do, just as long as they don’t accept any tax dollars or mandatory student fees. But if they want those funds, then they have to accept everyone. And part of being a student is to broaden one’s horizons, not limit them to just the ones you like. And as I said, even a gay bigot should be able to join the GLBT society. Eventually, he will either get disgusted and leave, or he will realize that gays aren’t so bad.
December 8, 2009, 4:58 pmRandy says:
Ken: “I bet the group would accept homosexuals who admit that homosexuality is a sin and vow to quit it in the way one might vow to quit swearing. I doubt there are many such prospective members, though.”
Exactly, which is why DB’s fears are overblown.
Publius: “Actually, based on the cert petition, it looks to me like CLS’s policies on sexual morality treat adultery and homosexuality (and heterosexual fornication for that matter) exactly the same way”
So I guess the CLS starts off each meeting by asking everyone present whether they have had sex outside of marriage since the last meeting, and if so please speak up so that we can expel you permanently. If they don’t, then I reckon that they really aren’t serious about enforcing the policy equally.
December 8, 2009, 5:03 pmloki13 says:
Sure. And I’ll repeat this- if the student groups at a *public* school want funding from the *government*, then the government has the right to certain conditions for the funding that apply to all student groups, such as being open to all students.
And if the student groups don’t like that, they can still free associate without government funding.
I don’t get it- when called on your hypothetical boogeyman, you retreat to your constitutional principle, but ignore that these groups are perfectly able to do freely associate without government funding.
Great argument- the government MUST subsidize discrimination.
December 8, 2009, 5:21 pmptt says:
Actually, they do a masturbation check and then promptly dissolve the meeting for lack of a quorum…
December 8, 2009, 5:25 pmSara says:
I am confused by some of the comments. David Bernstein, if I am reading him correctly, thinks the “all students rule” is constitutional but unwise:
December 8, 2009, 5:34 pmsk says:
“You’re missing the point. As far as I can tell, all denominations agree that homosexual orientation isn’t a sin, just homosexual conduct…”
No, you are missing the point. You seem to be arguing that a Christian group can form, and can exclude people from its membership, but only if that group agrees with other people (‘all denominations’). In essence, the right to association (or the right to set membership rules) depends on whether those rules are popular with other people (i.e. other well known denominations of Christians in this case). Why? Why couldn’t a Christian group form that picks and chooses which Christian tenets it opts to emphasize (perhaps in one school with a drug problem, a particular Christain group may be particularly harsh towards drug use. At another with an STD problem, it is particularly harsh with respect to pre-marital sex. And so on) Why couldn’t a Christian group form that excludes homosexuals, but tolerates gamblers? Or tolerates homosexuals, but excludes drinkers? Or…and so on.
“But let’s say that a Christian group will accept professing Christians who engage in any sin (fornication, gambling, theft, dishonoring one’s parents, etc) EXCEPT homosexual conduct. And that they can’t identify a theological reason for this distinction.”
Again, the same argument. A Christian group can form, and can write its own membership rules, but only if those rules are sanctioned by some greater authority (‘a theological reason’). If not, they lose their constitutional defense?
I would imagine there are real world examples (though not specific with regard to homosexuality). There are various degrees of ‘strictness’ in terms of Christianity (and Judaism). Presumably, some Christian groups tolerate homosexuality (witness the Anglican Church), some don’t (Baptist and Catholic). Some tolerate alcohol (Catholic) more than others (Fundamentalist). Some probably have stricter dietary expectations (strict Catholics during Lent. I think orthodox Jews are more strict with regards to dietary tenets than others) than others.
Is it your belief that if a Christian group doesn’t enforce all Christian principles equally, they aren’t constitutionally protected? Or is it your belief that they are all constitutionally protected so long as they can claim to be following the tenets of some outside authority (the bigger Catholic Church, or a tenet of Anglicanism, etc)? Really? Constitutional protections depend on whether your views are popular with larger, established organizations?
Or, to take it from the opposite direction:
All 4 groups are Christian organizations:
Group 1: Bans gambling, drinking, meat on Fridays, and homosexuality
Group 2: Bans gambling, drinking, and meat on Fridays
Group 3: Bans gambling, and drinking
Group 4: only bans gambling.
It appears that you think Groups 1 through 3 are acceptable, but Group 4 loses its constitutional protections because it ONLY bans gamblers (you didn’t come out and say this, but if I made arbitrary change and rearranged the list of sins, above, and listed homosexuality first, it would be consistent with your views).
To summarize: you have 4 possible principles you are following:
1: Christian groups must obey all Christian principles to enjoy constitutional protections
2: Christian groups must obey the specific beliefs of an established theological authority (to be identified by the Courts) to enjoy constitutional protections
3: Christian groups must obey at least two specific beliefs of an established theological authority to enjoy constitutional protections-obeying just one (homosexuality, gambling) entails the loss of those constitutional protections.
4: Christian groups can only ban homosexuality if the also ban a few other things (the adequacy of which will be determined by the Courts) like gambling and drinking to enjoy constitutional protections.
I’m having a difficult time parsing any of these to have any semblance of a constitutional argument, and not merely the compromising hairsplitting that I mentioned earlier (i.e. “groups should be allowed to define their own membership, but we can’t let anti-homosexual groups to win outright”).
Sk
December 8, 2009, 5:45 pmShelbyC says:
I’m not sure why people think there’s a big difference between starting a new group and exculding members one doesn’t want. If I’m a gay who wants to create a gay discussion group and straights keep joining, I and the other gays that want such a group can keep changing group names, trying to outrun the straights, as it were. Except for the additional hassle of creating new groups, it’s the same thing as a group that only allows gays. So what’s the point of making me accept straights, except to impose a burden on folks who want to have, say, a gays only group?
December 8, 2009, 6:21 pmSara says:
The burden, Shelby, is because you’re choosing to accept State support.
December 8, 2009, 6:24 pmShelbyC says:
You make it sound like the “government” funding doesn’t come from the students themselves. It’s like the government taking money from everybody, and only giving it back to folks that don’t practice religion, and saying, “well, the government isn’t preventing them from practicing religion, they’re free to do it without funding”
December 8, 2009, 6:40 pmPubliusFL says:
No, I don’t suppose they do. But the “no” applies just as much to heterosexual sex as homosexual sex. So where exactly do you see the unequal enforcement? Even the opposition to the cert petition admits that “aside from requiring that members or officers sign the Statement of Faith, CLS did not have any procedure for ensuring that its members or officers are not gay,” and the Statement of Faith itself (as far as I can tell) did not actually refer to homosexuality.
December 8, 2009, 6:43 pmShelbyC says:
Well, they’re choosing to accept the students’ support, too, but the students don’t get to put burdens on them. State support is simply the government giving the students back their money.
December 8, 2009, 6:43 pmSara says:
1) Actually they’re giving the Organization money from ALL the students.
2) The Government taxes but it can’t support religion
2) Yes, organizations that must be exclusive may be burdened but since the fee was collected to support only organizations that accept all students, I don’t think its a good argument
December 8, 2009, 6:49 pmjrose says:
David,
Why is it viewpoint discrimination when the pro-gay rights and anti-gay rights views are treated equally?
Also, how do you adress Eugene’s hypotheticals about rules barring subsidizing groups that permit non-student or non-democratically elected leaders? Aren’t these also expressive associations?
December 8, 2009, 7:02 pmShelbyC says:
Actually it must support religion, to the same extent that it supports other things. For example, it can’t deny fire services to a church because it’s a church.
December 8, 2009, 7:03 pmloki13 says:
ShlebyC,
I find the comments here, generally, bizarre. Here’s thge basic outline.
1. The “problem” you describe doesn’t *actually* exist in the real world. Again, I’m not sure what hypothetical boogeymans can be conjured up, but most college students have far better things to do than to join groups that have nothing to do with them. Most can’t be bothered to join groups they agree with. As a person who went to a UG and a LS with an “all students in all groups” policy, I can personally attest that there were a few white people in the “black” groups, there were a few straight people in the “gay” groups, and there was a FS member in the ACS (and vice-versa). Somehow, it all worked out.
2. Assuming the hypothetical problem that doesn’t exist became an actual problem, there is a real solution. Which is to say- you can always form new groups. You can form new groups with required policies for leadership positions (which is different than the membership) to make sure that only longstanding members as opposed to gatecrashers get in. And guess what- most college students have better things to do than spend a year attending meeting of a group they don’t agree with. If the problem ever existed, which it doesn’t.
3. Okay, let’s assume we’re formalists and want to tackle the constitutional issues of a hypothetical problem (this would be like analyzing the 3d Amendment implications of the government quartering monsters under your bed). As even DB put in his OP, schools that have a general policy applied to all student groups won’t be violating the Constitution. And remember- this only applies to public universtities/colleges (private ones can do whatever the hell they want, subject to statute). So the school can have a policy that all student groups must be open to membership by all students.
To sum up, the non-existent problem is not unconstitutional. Any questions?
December 8, 2009, 7:18 pmShelbyC says:
I’m not sure I follow. Wasn’t the last major SCOTUS case on this issue (Dale) a manifestation of exactly the problem you say doesn’t exist?
December 8, 2009, 7:30 pmTim says:
Exactly. Thank you for putting that into words so nicely.
December 8, 2009, 7:34 pmOwen B says:
Shelby: It’s not the students’ money anymore. Students pay for tuition at a public university, and the university, in turn, has decided that it is in the interests of the student body to fund student groups. (In reality, some schools have a separate Student Activity Fee or something, but that usually doesn’t cover the full cost of the activities. The balance comes from the university, whose funding goes back to the government). So it’s the university’s money, and by extension the government’s, which therefore gives government the right to decree nondiscrimination in student groups. Student groups who refuse to abide by these rules can certainly continue to exist without support from the university. This came up 25 years ago at Harvard with finals clubs(http://www.thecrimson.com/article/2009/6/2/socially-stratified-mass-ave-marks-the/) and seems to have worked: the clubs are doing fine, and they have no impact on people who don’t attend them (aside from the potential nourishment of a male-centric social scene).
-Owen
December 8, 2009, 7:39 pmShelbyC says:
I’m not sure why you say the fact that the money is transfered from the students via the government gives them the right to decree nondiscrimination in expressive student groups (a right which they don’t have as sovereign). Sometimes it’s better to pay for things individually, sometimes collectively, but I don’t see why the fact that the govt has decided that we will pay for certain things collectively gives them the right to impose restrictions that the first amendment would otherwise prevent them from imposing.
December 8, 2009, 7:53 pmjrose says:
In any event, the constitutional principle that protects an organization from having its ideology perverted by outside agitators does not depend on it being a common occurrence.
Your point about the irrelevancy of how common the occurrence is well taken. However, when you conceded the constitutionality of a policy that requires every student to be admitted to a subsidized group, didn’t you abandon the argument that there is a constitutional principle that protects an organization from harmful outsiders?
December 8, 2009, 7:54 pmloki13 says:
ShlebyC,
The problem that has DB and Tim keep pointing to is not that there might be someone who joins; they point to the nefarious possibility that student groups will be swamped by people opposed to the core principles of that group in order to shut them down.
Why? Because to do otherwise makes it apparent how silly their argument is.
a. All the time, in campuses all around this great nation of ours, student groups are “infiltrated” by people that don’t fit precisely into the exact nature of the student group. I was part of a Jewish student group in undergrad (I’m not Jewish) and I was a member of the Federalist Society in LS (I was President of the ACS). This happens, and it’s no big deal. But they want to make it a big deal, claiming that-
b. Really what’s going to happen (the problem) is groups will be swamped with nefarious ne’er do wells who seek to take over and disband groups, ‘cuz that’s what they do.
What’s really happening is that they’re seeking special rights for the Christian group, so that they don’t have to play by the same rules as every other student group. It’s not enough that they could form their own private group; instead, they’re seeking state validation and money for their lifestyle.
:)
Or something like that. (BTW, I think it is amazingly ironic that when I was in school, other student religious groups were so welcoming, and I’m thinking specifically of both the Jewish and Islamic groups. It must be hard to be so persecuted!)
December 8, 2009, 7:58 pmRandy says:
Shelby: ” If I’m a gay who wants to create a gay discussion group and straights keep joining, I and the other gays that want such a group can keep changing group names, trying to outrun the straights, as it were. Except for the additional hassle of creating new groups, it’s the same thing as a group that only allows gays. ”
If so, you’d probably be the only gay person who wants an “only gay” place on campus. All the gay groups I know not only allow but welcome straights.
DB: “In any event, the constitutional principle that protects an organization from having its ideology perverted by outside agitators does not depend on it being a common occurrence. ”
What constitutional principle is that? That an org is protected from having it’s ideology perverted by outside agitators? Please cite, as I can’t find it.
And if there were one, do you honestly think that students who have all this time to infiltrate organizations just to get them to change their ideology are going to stop because of a new law?
And you seem to agree that its’ not a common occurance, but if it happen just once, then public universities all across America now will have to have lawyers on staff to police the bylaws and practices of all the student groups to insure compliance with your complicated and byzantine rules. Which of course will be routinely challenged by said agitators just because, you know, they love to agitate.
And then we wonder why people hate lawyers for making everything so complicated.
December 8, 2009, 8:13 pmTim says:
loki13,
So what would you say if a bunch of Republicans joined the College Democrats and donated all of the club’s money to a Republican campaign? Or, what if a bunch of Brady Campaign-type people joined my shooting club (which is not a political club, it’s a target shooting club), voted themselves into power, and donated the club’s money to anti-gun political causes?
It seems that without broad protection for the right to expressive association, it isn’t just the viewpoint censorship that is a possible consequence. Sure, shutting down the College Democrats silences a viewpoint. But raiding its funds and sending them towards an opposing cause would make for a much more difficult problem. Those funds could have been saved and compiled over years and years, and intended for use to promote the cause of the organization. And in a flash, assuming the proper conditions, all of that money could not only be gone, but spent on causes with which the group was founded to oppose directly.
This is not just some obscure hypothetical that can be dismissed. Professor Volokh’s post today about ideological takeover has some interesting comments in the thread that suggest that Scientologists didn’t just use these policies to silence their opponents, but also suggests that they engaged in abuse of process in order to bankrupt and silence their opponents in that manner.
Even if there is only one example of this happening, it is still unacceptable to allow protected speech to be silenced in this manner.
December 8, 2009, 8:16 pmRandy says:
publius: ” Even the opposition to the cert petition admits that “aside from requiring that members or officers sign the Statement of Faith, CLS did not have any procedure for ensuring that its members or officers are not gay,” and the Statement of Faith itself (as far as I can tell) did not actually refer to homosexuality.”
So it’s their version of DADT. If you are gay, you are welcome to the club so long as you don’t actually tell anyone you are gay. IF someone finds out because they saw you holding hands with a guy at a coffeeshop, then they can begin an investigation and try to determine whether you really are gay.
And we know how well DADT works for the army, so it must be great for a church club!
December 8, 2009, 8:17 pmShelbyC says:
Well, when you and I went to school their viewpoint wrt gays was pretty mainstream. I’d imagine nowadays that viewpoint is looked at about the same way a racist viewpoint was looked at in our day.
December 8, 2009, 8:19 pmRandy says:
Tim: “So what would you say if a bunch of Republicans joined the College Democrats and donated all of the club’s money to a Republican campaign? Or, what if a bunch of Brady Campaign-type people joined my shooting club (which is not a political club, it’s a target shooting club), voted themselves into power, and donated the club’s money to anti-gun political causes?”
That would be a violation of the rules that most universities have in place for the use of funds. You cannot donate student activity funds to any outside organization. Therefore the issue you raise is irrelevant.
The Scientology issue didn’t involve a public university distributing tax dollars or mandatory student fees.
December 8, 2009, 8:21 pmreadery says:
It seems to me that a public university could support all religious groups, or none. But it can’t support only religions which define membership in terms of beliefs, but not those which define membership in terms of status. To do so is to prefer one set of religious doctrines over another. The university, and hence the state, may think that belief-based religion is better or more correct doctrine than status-based religion. But it cannot impose its own ideas of what is orthodox — what is correct or better doctrine — on matters of religion. It can no more do this through subsidizing only those religions it finds orthodox than it can through prohibiting religions it finds miscreant.
A state which, for example, subsidized Christian or Buddhist groups because they were strictly belief-based but refused to subsidize Hindu or Jewish groups because they consider status would be using the power of the state to establish religion of a particular kind.
December 8, 2009, 8:37 pmloki13 says:
Tim-
The distinguishing factor that you keep skipping over is that these are campus organizations. The scientologist example is not from a campus. I went to schools that had “all students allowed” policies, and this was never a problem. Again, to sum up:
1. Not a problem in reality.
2. As acknowledged, not a constitutional problem.
But to answer your questions-
a. First, students can always form as groups. You know- get together with your private buddies, etc. You can also get money from outside funding (such as national organizations).
b. You are clearly not familiar with how student organizations work. They are led by the people who are already members (3Ls, seniors). They have policies and voting requirements. It’s not like a bunch of people show up to a meeting one day and decide to change the organization’s direction.
c. Finally, these are small sums. IOW, the school provides the organizations with a little bit of money for food (for events) and to bring in speakers. If a determined group of college GOP students wants to spend a year of their life going to College Democrat meetings so that they can “take control” of the College Democrats* and buy subs, then more power to them. For some reason, that doesn’t happen.
*Note they might lose affiliation with the national chapter and will likely need to pick a new name.
December 8, 2009, 8:39 pmreadery says:
Easy. As applied to religion, such requirements basically establish congregationalist forms of religion over hierarchical forms. Historically, these sorts of rules — and they haven’t been uncommon — have basically been nothing more than thinly disguised efforts to ensure that the university funds and is welcoming to Protestants but not Papists. No different from rules gerrymandered to keep blacks out.
I would also point out that classes violate such rules — universities don’t require classes to be run democratically with everyone having an equal say. Why not? The reason is that universities have this idea that there is such a thing as academic knowledge and that people with academic credentials know something non-experts don’t and hence are more qualified to make academic decisions. Some religions have similar ideas about religious knowledge and religious decisions. A university which requires that religious decisions be made democratically tends to establish immanent religious doctrines over eminent ones.
December 8, 2009, 9:22 pmreadery says:
Professor Volokh: How do you deal with the “internal affairs doctrine” and the circuits who have held it survives Smith and prohibits government from dictating who a religious group can choose as its members or leaders?
(a) Do you disagree with the doctrine entirely?
(b) Do you think the doctrine dissappears as soon as a religious group accepts a government subsidy, i.e. government can offer churches a subsidy conditioned on letting governement pick or have a say in picking their leaders and members?
(c) Do you think it applies to “churches”, but doesn’t apply here because a group like the Christian Legal Society is not a “church”?
Note: I wouldn’t disagree with a requirement that members be students, much as government can subsidize chaplains limited to the military, hospitals, etc., so long as it doesn’t define religious membership or leadership.
December 8, 2009, 9:38 pmJoseph Slater says:
PubliusFL:
Those types of Trotskyist or Maoist groups are generally part of the 20th century past, and not really part of the political landscape today. But to the extent they may still exist in some places (and actually be funded with student fees), with all due respect to Randy, whose posts I admire, I have a different answer. I never found those folks particularly civil or interested in internal (or external) democracy. Instead, they were very willing to split and form an even smaller, less significant, but more ideologically “pure” group at the drop of a hat. Hence the whole, “People’s Front of Judea!?!?! Splitters!!! We’re the Judean People’s Front!!!” brilliance from Monty Python’s “Life of Brian.”
Again, this doesn’t address the legal principles involved, but again, practically speaking students rarely if ever try take over a group in order to make it act contrary to its original goals.
December 8, 2009, 9:58 pmRandy says:
Slater: You may be right about the civility issue, so I certainly won’t disagree. But our point remains that students can form tiny niche groups very easily. Many never survive past a few years, as I find them to be very personality driven. If you have a good effective leader you can do a lot, but many have poor leaders and do nothing. Which is exactly why these are so beneficial to budding leaders of tomorrow.
I looked at the CLS website. One of their major goals, in fact, is to bring litigation so that religious groups can continue to discriminate against people they dislike. So it’s not hard to imagine that this is really just a made up case. CLS comes to US-Hastings and then proceeds to set up a policy in deliberate defiance of the rules, claims discrimination, and files a lawsuit. Now, they have defenders who claim that as long as there is just one instance of this of discrimination, we need a SCOTUS case to protect their rights.
It’s quite funny. Anti-gay groups always like to claim that we seek ‘special rights’ when we just as to have the same rights as everyone else. Now they want a special exemption that no one else has because, gosh, they just can’t abide to have homos in their midst.
December 8, 2009, 11:00 pmMichelle Dulak Thomson says:
ptt,
As I often say in threads about religious accommodation, if the only thing you’re trying to protect is an anti-gay policy and you ignore rather more fundamental things like theology — divinity of Christ, immaculate conception, etc. etc. — as a prerequisite for association, then what you’re really engaged in is simple anti-gay discrimination.
I can see a strictly Roman Catholic organization insisting on the Immaculate Conception, but hardly a more general Christian association. That’s specifically RC doctrine.
December 8, 2009, 11:07 pmEMB says:
Thanks; I’d be interested in hearing about the details in some of these (or any other) cases (which I can probably google myself–do you happen to remember the name of the periodical in question?).
I don’t consider the non-student group examples relevant since there the hostile takeover can’t have been facilitated by a public university’s rules of this sort. Indeed, part of why I was so skeptical that this had ever happened at all is that with student groups, the stakes are so low: most student groups have pretty pitiful funding (usually enough to buy some some free food for a few meetings a semester) and the barriers to creating a replacement group are typically very low. A student periodical is a possible exception because it’s likely to have better funding and its name is likely to have much greater importance. (On the other hand though, most major student periodicals I’ve known don’t just let anyone become a voting member just for showing up or helping out a couple of times–generally a much greater commitment is required, so a hostile takeover is more expensive even if it is more rewarding.)
Perhaps, but I think there’s a considerable danger to trying to deal with hypothetical situations so far removed from the case in question.
As for the constitutional principle, I think refusing to use the student activities fee to subsidize any group that is not open to all students who wish to join is different from trying to interfere with the association of a private group of students.
(As for whether having such a policy is actually a good idea in the first place, I think it’s a better idea than letting funded student groups discriminate however they please; some sort of middle ground could be better from a purely practical point of view of helping groups deal with disruptive members, but there might be problems enforcing such a policy consistently.)
December 9, 2009, 1:48 amPubliusFL says:
Or, as such standards are more commonly referred to when not exclusively concerned with sexual preference, “the honor system.”
In your hypothetical, what makes you think an “investigation” is any more likely than if the student is married and spotted in the coffee shop acting all lovey-dovey with a member of the opposite sex? Any evidence? Ever been a member of CLS, or IVCF, or Pathfinders, or a similar group? Or are you just so certain that you know how “those people” think?
December 9, 2009, 6:55 amPubliusFL says:
I had that in mind while writing my comment. :) You’re right about the tendency of fringe groups to splinter, but such splintering often goes hand-in-hand with the takeover and ideological shift of a predecessor group. This page describes the splinter groups that resulted from the takeover of the American Labor Party by communists, the takeover of the Socialist Party of America by “right-wing social democrats,” and the takeover of Students for a Democratic Society by the Progressive Labor Party.
It’s true that this kind of thing seems more characteristic of the ’60s and ’70s than today, but the 1st Amendment is even older than that, and one would expect its principles to be comparatively more timeless. Also, for a more recent example see the takeover of Perot’s Reform Party by Buchananites in 2000.
December 9, 2009, 8:38 amSara says:
Then there’s the take over of the Whigs by the Republicans.
December 9, 2009, 8:47 amDavid Bernstein says:
to clarify, if a university claims to be neutral in requiring all clubs to be open to all regardles of ideology, a club could have a valid rosenberger claim if this is only enforced against, say, christian groups. But the rosenberger claim disappears if the school is actually enforcing a neutral non-discrimination based on race, se sexual orientation, etc., which is why it’s important to discern whether the group is discriminating against homosexuals for their beliefs, or because they are have homosexual orientation. Dale suggests that we have to take the group’s word for it, but I think if he evidence if overwhelmingly to the contrary, courts won’t buy it (as with a chaste homosexual nevertheless excluded).
December 9, 2009, 11:44 amJoseph Slater says:
Randy: I think we agree pretty much completely.
PubliusFL: I’m happy to have had the opportunity to provide a Monty Python quote that was actually apropos. Beyond that, yeah, the history of the left does have a handful of “hostile takeovers.” I think the splits were much more numerous than the takeovers; I’m skeptical about some of the examples on link (the SP was taken over by “right wing social democrats”?); and most of that of that was part of a distant past. Bottom line: I still don’t think student groups and their members act like that at all.
But I’ll agree with you (I think) that this fact/supposition doesn’t determine what the First Amendment analysis should be. It’s just that one “parade of horribles” that one side has been trotting out seems highly unlikely to me. I only wish I could think of another good Python quote to underscore that point.
December 9, 2009, 5:24 pmSmitty says:
I didn’t know we had anti “viewpoint discrimination” rights, do we?
December 9, 2009, 5:34 pmreadery says:
Professor Bernstein,
Rosenberger simply doesn’t address this case. This case is a case of government funding religious groups whose doctrines it likes but not religious groups it doesn’t like.
The critical difference between religions and mere “viewpoints” is that the right to choose members and leaders is an organic characteristic of a religion that cannot be artificially separated from its “viewpoint”. As the Court noted in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976)
And Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952), holding that
religious freedom encompasses power [of religious bodies] to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.
In short, the obligation of a state university to let religious groups use its facilities — including, under Rosenberger, funds — in no way carries with it a power to subject religious groups to membership and governance regulations of a sort that other kinds of groups can be subjected to. A religious group is never purely a “student group”. Unlike other “student groups” it is in the university, but never of it.
Indeed, were it otherwise, Roseberger would become a back door to Establishment, by giving the state a right to control membership and leadership along with its obligation to give access to facilities and funds. Religion has autonomy the state cannot crack. That autonomy applies not just to big hierarchical churches but to smaller groups as well. The Supreme Court’s declaration that religion has additional rights stemming from the Free speech clauses in Rosenberger in no way implies a giving up of autonomies arising under the Religion Clauses. Rosenberger simply can’t be read as implying a limitation on religious autonomy.
Religions admittedly get a pretty good deal under current interpretation. under Rosenberger they’re sometimes entitled to support from the state because for some purposes they’re a viewpoint like everyone else, but they don’t have to render unto Caesar the same way everyone else does because they have special autonomy others don’t have. This may not seem fair, particularly to people who don’t like religion much. But in many ways it’s been a good deal. A general favorable climate for religion combined with a policy of religious autonomy has been one of the factors supporting peace and avoiding strife in this country. This country has avoided problems that have been endemic both to those focusing on one religion and to those with policies hostile to religion.
December 9, 2009, 8:42 pmSara says:
No one is telling anyone who can be a member of a religion, it IS only a student organization that gets student funding.
December 10, 2009, 8:10 amBrett says:
There would be two problems with that scenario. The first would be that college groups do not have that level of control of their own funding; donating to outside groups, other than charities, in that manner is almost always forbidden. The second is that such a funding raid would require an entire budget cycle (again, lack of control to spend on off-budget items), and one of the key lens in student group budgeting cycles is an acid test of whether or not budget items are conforming to the constitution of the club (which generally cannot be changed without the approval of the executive board of the university wide student government).
There may be some private campuses (no public campuses) where such a raid would be possible, but it would be an exceedingly rare loophole that would likely be administratively plugged before the plan could even be executed.
December 11, 2009, 10:36 amTim says:
College gropus don’t have that level of control over their funding? I have a checking account that requires only my signature to empty the bank account. If you don’t think that I (as a President of a student organization) have total control (both through our bylaws and with the bank) over our money, you’re delusional.
I am a President of a student organization on a public university campus whereby this would definitely be possible, and there’s nothing I can do about it because the rules prohibit me from doing so. So if it’s not evident from what I’ve said thus far–your statement that this cannot happen on a public campus is false–because it can and IS happening right now on this very campus.
December 13, 2009, 10:24 pmRay says:
A lot of people seem to feel the 1st Amendment gives them the right to express any opinions without suffering any negative consequences. Sorry kids, but Freedom of speech means the GOVERNMENT can’t prosecute you for voicing your opinion. The 1st Amendment does not protect you from being fired for calling your boss an a$$hole.
No one says the students can’t form an organization and control its rules and membership. The question is whether or not they should get university funding if the organization contradicts school policy. Adherence to government-dictated policies is more strict for schools receiving government funds.
April 12, 2010, 6:42 pm