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.