The freedom of religious student groups at America’s public universities is under constant attack.  However, the Virginia legislature is the latest to fight back.

Way too many universities forbid religious student groups from choosing leaders and members that share their views.  Many schools contend that these groups “discriminate” on the basis of religion or sexual orientation.  Others have adopted so-called “all-comers” policies, which require groups to accept anyone as a leader or member, even if he or she rejects the group’s purpose, mission, positions, and perspective.  Sound absurd?

Well, the real goal is to marginalize theologically orthodox Christian groups that have statements of faith and sexual conduct standards.  The prevailing orthodoxy on America’s college campuses rejects (1) the exclusivity of Christ as the way of salvation; and (2) the contention that sexual intimacy outside marriage, including homosexual behavior, is immoral.  And, the campus orthodoxy has little tolerance for dissenting voices.  That’s why groups that have statements of faith and conduct standards are denied equal treatment.

Virginia lawmakers recently passed a bill that prevents politically correct university bureaucrats from punishing religious and political student groups that want their representatives to share their views.  The bill passed the House 73-27 and the Senate 22-18.  Both Republicans and Democrats voted in favor.

Foes of genuine religious freedom, like the Virginia ACLU, predictably oppose the bill.  They urge Virginia Governor Bob McDonnell to veto the bill.  The indispensable Foundation for Individual Rights in Education (FIRE) and the Virginia Family Foundation are among those asking McDonnell to sign the bill.

The Virginia legislature is not the first to address attacks on student group freedom.  Ohio enacted a law in 2011 that protects the associational freedom of religious students.  The Arkansas legislature is considering similar legislation.

Last year, Tennessee Governor Bill Haslam vetoed legislation that would have protected student religious groups at Vanderbilt and other private universities in the state. The Tennessee legislature is currently considering another bill that would deny private universities state “police power” if they refuse to respect student group freedom.

In the wake of the U.S. Supreme Court’s unfortunate 2010 decision in Christian Legal Society v. Martinez, which held that a public law school did not violate the Constitution by refusing, under an “all-comers” policy, to recognize a religious student group, it is encouraging to see state legislatures take a stand for freedom.  We hope that elected representatives in more states take up the cause.

It has become commonplace to observe that law and politics are “downstream” from culture.  In other words, our laws, generally speaking, are shaped and driven by the culture rather than the other way around.  To be sure, law often solidifies cultural trends, but it rarely creates, drives, or shapes them.  This relationship between culture and law came to mind a few times during the comparatively quiet week between Christmas and New Year’s Day.

The first occurred when my family and I played Hasbro’s “The Game of Life.”  Both my wife and I had enjoyed playing the game as children and thought it would be good fun for our family.  So we bought the new version, complete with the iPad app.  In case you’re not familiar with Life (as it’s called), the object of the game is to retire with the most money.  As each player winds his way through a simulated life, he makes decisions (e.g., pursuing a career immediately or going to college first) and encounters events (e.g., getting sued or winning the lottery).  Those decisions and events have financial consequences, and the iPad app keeps track of each player’s progress.  The game requires each player to get married.  My 11 year-daughter was the first to hit the “get married now” square on the game board.  She had previously “told” the iPad app that she was a girl, and she put a little pink peg in the driver’s seat of her car/game piece.  The app gave her a choice of spouses — a male or a female.  I suspected that there was more to this than a software quirk, and I was right.  Apparently, the original iPad app reflected the natural and traditional understanding of marriage, pairing players with opposite-sex spouses. But, predictably, that generated complaints.  It appears as though the game’s manufacturers responded to those complaints, disconnecting the app’s understanding of marriage from its real and natural definition.  That, in turn, generated counter-complaints, which had no effect. The game’s manufacturer picked a side.  All would agree that its choice would have been almost unthinkable a decade or two ago.

The second occurred when I was catching up on some scholarly reading, namely Entertainment Weekly‘s year-end issue.  One article was entitled, “This Was The Year That . . . Everyone Came Out in Parenthetical.”  The essential message of the piece was that when certain celebrities (e.g., CNN’s Anderson Cooper) announced that they were homosexual, there wasn’t much of a reaction.  The article’s first sentence nicely sums up its point:  “Some revolutions make headlines because they don’t make headlines.”  The article’s final paragraph resonates with my point about the relationship between culture and law:

The Hollywood closet isn’t going away, nor is antigay prejudice–although, happily, that’s being shoved into a closet of its own.  But it’s a measure of how well the entertainment industry has pioneered this issue, and how far we’ve come, that our focus is shifting to fields–sports and politics–in which bigoted rhetoric is slower to disappear.  EW has been covering this subject since 1990, and we’re not close to the end of the story yet. But as Churchill once said (not about gay people), it is, perhaps, the end of the beginning.

Note that phrases like “antigay prejudice” and “bigoted rhetoric,” as understood by liberal Entertainment Weekly writers, include support for the natural and traditional definition of marriage.

The Game of Life and Entertainment Weekly are both part of “the culture” that drives and shapes law and politics.  And the shifting cultural consensus about homosexual behavior and the definition of marriage has profound consequences for the religious freedom of individuals and organizations.  Threats to their freedom don’t come out of the blue; the ongoing attack on marriage didn’t start with the introduction of legislation or the filing of lawsuits designed to alter the legal definition of marriage.  And the objective of these efforts is not simply to secure legal approval of homosexual conduct; it is to punish and marginalize those embrace the traditional understanding of marriage and sexual morality.  As the EW writer declares, such individuals and organizations are “being shoved into a closet of [their] own.”  Indeed.  This means that our longstanding national commitment to religious freedom will continue to be severely tested in the coming year, as cultural trends translate into legal and political efforts to push traditional religious believers “into a closet of their own.”

The Florida Department of Education recently ended its discriminatory exclusion of a Christian college from one of its tuition assistance programs.

The Department excluded Florida Christian College (FCC) and its students from the Florida Resident Access Grant (FRAG) program, through which the state provides over $2000 each year to Florida residents attending private colleges in the state.  The Department based its exclusion on FCC’s religious character.  On behalf of FCC and four of its students, Alliance Defending Freedom filed a civil rights lawsuit in federal court back in March.  On November 14, the Department agreed to admit FCC to the program and to stop using unconstitutional criteria to assess schools’ eligibility.

The story behind the Department’s exclusion of FCC from the FRAG program is rather curious, and reflects the continuing confusion many government officials have about the constitutional limits on including religious entities in publicly-funded programs.  Back in 1979, the Florida legislature created the State Tuition Voucher (STV) program, the predecessor to FRAG.  The legislature was apparently worried that it might violate the First Amendment’s Establishment Clause by including certain religious schools in the program and included a provision it thought would ensure compliance with that provision.  It excluded students attending “pervasively sectarian” institutions.  Unfortunately, such an exclusion was not required by the Establishment Clause, even as it was then interpreted by the Supreme Court.  The Department of Education excluded a number of religious schools based upon this provision.  Many of these schools subsequently persuaded the Department to admit them to the program.

In 1989, for reasons that remain unclear, the legislature eliminated the exclusion of students attending “pervasively sectarian” schools.  But it added a new religion-related requirement:  students could get STV grants only if they attended an institution “which has a secular purpose, so long as the receipt of state aid by students at the institution would not have the primary effect of advancing or impeding religion or result in an excessive entanglement between the state and any religious sect.”  Through this requirement, the legislature was plainly trying to comply with the First Amendment’s Establishment Clause as interpreted by the Supreme Court in its 1971 decision in Lemon v. Kurtzman.  But they botched it.  The Court had said that the Establishment Clause required government programs themselves – not the participants in the programs – to have a secular purpose.  The legislature essentially told the Department to ask the wrong question.  In addition, the Supreme Court has made it abundantly clear since no later than 1986 that the Establishment Clause imposes no significant limits on the power of government to include students at religious schools – even seminaries – in higher education tuition assistance programs open to secular and religious schools alike.

Making matters worse, the Department misinterpreted and misapplied the statutory “secular purpose” requirement.  First, on the application form it sent to colleges, it asked them not whether they had a secular purpose, but whether they were “secular” or “non-secular.”  FCC’s many purposes include secular ones, but it was unwilling to declare itself to be “secular.”  The Department relied heavily upon FCC’s unwillingness to deem itself “secular” when it excluded FCC from FRAG program.  Second, the Department essentially interpreted the “secular purpose” requirement to be an exclusion of “pervasively sectarian” schools, i.e., schools that are “too religious.”  Third, the Department did not apply its own test consistently or accurately, admitting a number of intentionally religious schools to the FRAG program while making a series of factual errors about those schools’ attributes.

Even more curiously, the Florida legislature included the religious restriction in only two of its over 15 state tuition assistance programs.  As a consequence, FCC itself was able to participate in four programs while being excluded from FRAG.  There is nothing unique or different about the FRAG program compared to the others that makes its religious exclusion appropriate or necessary.  The Florida legislature simply has not been consistent or coherent in how it handles religious schools in its various tuition assistance programs.  It behooves the legislature to fix the mess it made and to issue clear guidance to the Department of Education so that it avoids constitutional violations in the future.  In the meantime, we are grateful that the Department finally did the right thing and stopped discriminating against FCC and its students.

In late 2010, Apple removed from its app store the Manhattan Declaration iPhone/iPad app.  (The Manhattan Declaration, in case you don’t know, reaffirms the moral teachings of the Christian faith on the sanctity of human life, marriage and sexual morality, and religious freedom and the rights of conscience.)  Apple told Manhattan Declaration sponsors that the app’s content was considered “likely to expose a group to harm” and “to be objectionable and potentially harmful to others.”

Did Apple violate the principles underlying the First Amendment when it took this extraordinary and unprecedented step?  Should the government step in and require private companies to respect free speech values?  If not, what else might be done to encourage new media companies like Apple, Facebook, and Google to have a healthier understanding of the value of free expression?

A panel of experts convened by the National Religious Broadcasters addressed those and similar questions Tuesday on Capitol Hill.  After opening remarks by NRB President & CEO Dr. Frank Wright and Jacki Pick, Counsel for Rep. Trent Franks (R-AZ),  the panel discussion featured FCC Commissioner Robert McDowell, Ryan Anderson of the Heritage Foundation, Craig Parshall of NRB, and Kelly Shackelford of Liberty Institute.  Parshall discussed “True Liberty in a New Media Age,” a report published by the NRB’s John Milton Project for Religious Free Speech.  The panelists agreed that government ought not to — and probably could not – force new media platforms to respect free speech values.  They discussed alternative means by which companies like Apple might be encouraged to avoid unjustified restrictions on religious express, including both competition and voluntary commitment to respect even unpopular viewpoints on hot button cultural and political issues.

Florida Christian College (FCC) and five of its students filed suit against the State of Florida March 8, challenging their religion-based exclusion from the Florida Resident Access Grant (FRAG) program.  My colleagues and I at the Alliance Defense Fund are privileged to represent them.

Through the FRAG program, the state provides over $2,000 in annual tuition assistance to qualifying students who attend private colleges and universities in the state.  In order to participate, a student must attend a college that has ”a secular purpose.”  Officials with the state Department of Education concluded that FCC lacked “a secular purpose” and excluded the college and its otherwise eligible students from the program.  FCC includes within its educational program “secular” subjects and prepares many of its students for “secular” vocations.

When writing the FRAG statute, the Florida legislature misunderstood the First Amendment’s ban on laws “respecting an establishment of religion.”  Interpreting that language, the U.S. Supreme Court has held that government benefit programs may include religious individuals and organizations as long as (among other things) the programs have “a secular purpose.”   When it adopted the statute governing the FRAG program in 1989, the Florida legislature misunderstood this constitutional rule, erroneously requiring each participating school – rather than the program as a whole itself – to have “a secular purpose.”

Compounding the problem, the Department has not applied the constitutionally erroneous statute consistently, excluding FCC while allowing nine other religious schools and their students to participate:  Clearwater Christian College, Palm Beach Atlantic University, Southeastern University, Warner University, Ave Maria University, Saint Leo University, Bethune-Cookman University, Edward Waters College, and St. Thomas University.  Students at a total of 31 institutions of higher education are eligible.

Revealing yet more irrationality in the Florida student aid system, only two of the approximately 16 student aid program statutes exclude students because of the religious character of the institution they attend or of their course of study.  Indeed, FCC students themselves participate in four programs other than FRAG.  In light of this – and the participation of nine religious schools in the FRAG program — the state plainly lacks any legitimate interest in excluding FCC and its students from FRAG.

FCC has been trying for years to persuade the Florida Department of Education to stop discriminating against its students.  The Department has rejected its effort, even failing to justify or explain its unfair treatment of FCC students – who suffer a $2000 penalty simply for choosing FCC.

In light of the state’s ongoing refusal to right this wrong, attorneys with the Alliance Defense Fund filed a lawsuit in U.S. District Court for the Northern District of Florida on behalf of FCC and FCC students Brittany Betancourt, Katrene DeLoach, Alicia Hoffman, Kelley Reinoehl, and Luke Stamps.  We hope that the lawsuit will prompt the Department to quickly do what it should have done years ago – stop discriminating against students who have chosen a particular religious college.