The District of Columbia Office of Human Rights has held that John Garvey, president of Catholic University of America did not violate a District law banning sex discrimination by returning the institution he leads to single-sex dormitories.  As I mentioned in a summer blog post, George Washington University law professor John Banzhaf filed a charge of discrimination against President Garvey.

The DC agency observed that laws banning discrimination on the basis of sex do not categorically forbid all sex-based distinctions.  The DC Human Rights Act, the law under which Prof. Banzhaf sued, prohibits only those policies that are “motivated by an invidious purpose,” not policies that “make distinctions between the sexes for benign purposes.”  Along the same lines, the agency stated that “a policy that makes distinctions between men and women is valid so long as the policy is not motivated by discriminatory animus.”

I must confess that I am slightly amused by the agency’s use of this line of reasoning.  When public universities accuse religious student groups of “discriminating” on the basis of religion by requiring their officers and leaders to share the group’s religious commitments, my ADF colleagues and I typically first argue that what the religious group is doing is simply not “discrimination” – which I would define as the invidious reliance upon irrelevant characteristics.  When the school’s Chess Club says “no Hindus,” that’s discrimination; but when the school’s Jewish Students Association says “our leaders must be Jewish,” it’s not.  Despite the power of this common sense argument, it almost invariably fails when made by religious student groups at public universities.  That’s why I’m amused (and heartened) that the DC agency accepted a conceptually identical argument.

In any event, props to the DC Office of Human Rights for getting this one right — and respecting religious freedom in the process.

Yesterday marked the 30th anniversary of the U.S. Supreme Court’s landmark decision in Widmar v. Vincent.  Perhaps you’ve never heard of this case, or perhaps you don’t really care.  But you should.  For Widmar is the cornerstone of modern religious liberty jurisprudence.

In the 1970s a small, but thriving group of Christian students from various denominational backgrounds met regularly on the campus of the University of Missouri at Kansas City.  They called their group, Cornerstone.  The students met in the University’s student center and other facilities to pray, sing hymns, read scripture, share personal testimonies, and discuss the Bible.

But in 1977, the University decided that Cornerstone could no longer meet in its facilities.  The University said that it had a regulation that prohibited the use of its buildings or grounds for religious worship or religious teaching.  I suspect that universities across the country had been doing this sort of thing for years.  There was, and still is, a mistaken understanding of the First Amendment as it applies to student speech on campus, particularly the application of the Establishment Clause, and university administrators, whether in good faith or not, regularly oust Christian student groups for fear of violating it.  But rather than capitulate and move their meetings off campus, the students in Cornerstone drew a line in the sand and said, “No more.”  We owe them a debt of gratitude.

Eleven students filed a lawsuit against the University, alleging that its policy of excluding religious worship and teaching from University buildings violated the First Amendment.  I can imagine they asked their lawyers many of the same questions ADF clients ask me:  Will this have an effect on my degree?  Will the university punish me for suing it?  What will I tell my friends?  These are valid questions, but it seems they already answered the most important question, “why should I do this?”  The eleven students must have known that the ability of their group to survive and share God’s Word depended on it reaching students on campus.  And the only way to reach students on campus was to be on campus.

The students road to justice, however, was not paved smoothly.  The federal trial court ruled against them and held that the Establishment Clause of the First Amendment not only justified, but required the University’s exclusionary policy.  Our nation’s misapprehension of the Establishment Clause runs deep.

A federal court of appeals reversed that ruling and held that the University’s policy of banning worship was a content-based regulation of speech for which there was no compelling justification.  It also ruled that the Establishment Clause does not bar religious speakers from accessing a publicly open facility on equal terms with all other speakers.

The University, not satisfied with this result, asked the Supreme Court to take the case.  And against all the odds, it did.  The case was argued the day before my second birthday in October 1981, and the Court handed down its decision two months and two days later, December 8, 1981, the day after the fortieth anniversary of Pearl Harbor.

In Widmar, the Court held that the University’s policy of excluding religious worship and religious teaching from generally open university facilities discriminated against speech based on its religious content.  In other words, if the University opened its facilities for basically any type of speech, it could not exclude religious speakers.   The Court also held that the government does not violate the Establishment Clause by opening its facilities neutrally to private expression.

When the decision came down, Linda Greenhouse wrote in the New York Times that the “decision is significant . . . in that it provides what may be the Court’s clearest explanation so far of how religious observance fits within the free speech guarantees of the First Amendment.”  Religion, it seemed at the time, would not be relegated to second-class status.

Widmar paved the way for many of the Court’s subsequent religious speech cases involving access to public school facilities, student activity fee funding, and church use of public facilities.  It even set the legal table for Congress to later enact the Equal Access Act, which protects the ability of religious student clubs to meet on public school property.  If you were ever in a Christian club at your public school or college or if you have ever attended a church or Bible study that met in a school or public facility, you have Widmar to thank.

Despite Widmar‘s remarkable impact on religious liberty, some have forgotten it.  Just this week, we told you about the disappointing result in Bronx Household of Faith v. The Board of Education of the City of New York.  The Bronx case, like Widmar, involved a group of Christians who sought to use publicly available school facilities for their Sunday morning gatherings, but who were prohibited from doing so because the city banned worship in its facilities.  For a decade the church litigated whether the city’s policy violated the First Amendment, and in June, the federal court of appeals ruled that the city’s policy was constitutional.  The result:  an estimated 60 churches will be evicted in February because of this ruling.  Yes, that’s right, in direct conflict with the Supreme Court’s decision in Widmar, a subordinate federal court excluded Christians from publicly available facilities because of the way in which they communicate their speech – worship.  It seems some people want to forget Widmar, or at least relegate it to a dusty storage room shelf.

But some have not forgotten.  Yesterday, on Widmar‘s 30th anniversary, many people gathered on the steps of City Hall in New York, including city council members, congregants, and pastors of churches that will be evicted in February.  They rallied to repeal the city’s discriminatory policy and to keep churches meeting in city boroughs that desperately need them.

So why shouldn’t you forget Widmar?  Professor Michael Stokes Paulsen says it best:

Few principles of the freedom of speech are more foundational or of greater practical importance to religious liberty than the proposition that religious speech is as fully protected as speech on any other subject . . . .

Widmar’s free-speech holding is thus fundamental to the freedom of religion. It is the basis for the right of evangelism: Freedom of religious expression, and the equal status of religious ideas, keep government from suppressing religious discourse and debate. And Widmar’s free-speech principle is closely allied with the freedom to exercise one’s religious convictions in society generally: It is the principle that proclaims the equal status of religious views, religious arguments, religiously motivated actions, religious associations, and religious identity in American public life. Freedom of religion means, at bedrock, the right of religious persons, groups, and ideas to participate fully and equally in the life of the community and in the marketplace of ideas.

So lest we lose the precious freedoms we have, don’t forget Widmar.  “Tell your children about it in the years to come, and let your children tell their children. Pass the story down from generation to generation.”  (Joel 1:3)

Here at the ADF Center for Academic Freedom, we fight a lot of battles to preserve religious liberty at our nation’s public universities.  More often than not, the universities are doing something unconstitutional.  And more often than not, oddly, many students on campus are okay with that.  But, remarkably, when a university does something perfectly legal – for once – students and alumni are up in arms.

The New York Times reports that some students and alumni of the University of Connecticut are upset over the athletic director’s recently commissioned tradition of asking fans to say the Pledge of Allegiance before football and basketball games.  (The horror!)  I nearly laughed when I read the article, but it seems that the brouhaha is gaining traction, with proponents and opponents becoming more vocal.  Two different polls were conducted.  One concluded that fans like the new tradition by a margin of 2 to 1.  But another fan poll indicates just the opposite.

What are the objections of those opposed to this new practice?  The Times reports the following:

Those opposed said they objected to a public university urging people to say “under God” or felt it was gratuitous to ask people to pledge fealty to the United States at a sporting event. Some expressed concern that UConn athletes who are not American citizens could be put in an awkward position.

Unbelievable.  No one is being compelled to say anything.  It’s an option.  A choice.  Like choosing whether to have the $8 hot dog, the $6 nachos, or just wait and eat at home (which may be the best option given the heartburn associated with the first two).  UConn may encourage people to say the pledge, and it runs afoul of nothing in the First Amendment for the university to do so.  Two federal courts of appeals, the First and the Ninth, have ruled as much.  UConn says that purpose of reciting the Pledge is to get ”people focused on the fact that freedom is valued by us and by people in other countries fighting for theirs.”

The State may acknowledge not only our national allegiance to one another, but also our national recognition of being “under God.”  After all, we are “endowed by [our] Creator” with certain “unalienable rights.”  A simple stroll around the National Mall demonstrates that government routinely acknowledges God’s role in our nation, both yesterday and today.  Furthermore, foreign student athletes are demonstrably not in an “awkward position.”  Two of the foreign student-athletes interview by the Times indicated “they were comfortable standing on the court as their teammates recited the oath.”

So bravo, UConn!  Thank you for honoring our country and those who serve to protect it.  With so much that divides our country, we need a unifying thread, and recitation of the Pledge is a great way to start.

The Illinois Department of Human Rights has dismissed a charge of “sexual orientation” discrimination leveled at Benedictine University by a former employee.

Sharon “Laine” Tadlock served as director of the University’s education program at its campus in Springfield, Illinois.  In the wake of the Iowa Supreme Court’s invention of a state constitutional right to “same-sex marriage,” Tadlock and her female partner got “married” in Iowa.  Upon Tadlock’s return, she published a wedding announcement in the local newspaper.  In it, she identified herself as a Benedictine University employee.  By doing so, she publicly flouted the University’s religious teaching on marriage.  In response, the University transferred her to a different job position, with the same salary and benefits.  She failed to appear for work on the appointed day, thereby resigning her employment.

Tadlock complained to the Illinois Department of Human Rights that the University had discriminated against her on the basis of her sexual orientation.  The Department rejected her claim, reasoning that anything the University did to her (and it denies any adverse treatment) was motivated not by her sexual orientation, her sexual behavior, or her “marriage,” but instead by her public flouting — in a newspaper announcement in which she identified herself as a University employee – of the school’s religious teaching.

The Alliance Defense Fund assisted in the University’s defense.

I was privileged to speak at Duke Law School yesterday about Ward v. Wilbanks, an Alliance Defense Fund case in which Eastern Michigan University expelled a counseling graduate student for her religious beliefs and her unwillingness to perform counseling that violated her conscience.  I am grateful to the Federalist Society — both the national organization and the Duke chapter – for hosting the event.

In my presentation, I recounted some manifestations of the long American tradition of accommodating conscience.  Colonies and young states disestablished their churches (and the federal government never established a national church) in part on the ground that compelling direct support of the inherently religious activities of a particular house of worship or denomination can violate the consciences of those who dissent from some or all of that church’s beliefs.  Article II, Section 1 of the Constitution permits the incoming (or re-elected) President to “affirm” rather than “swear” to “faithfully execute the Office . . . ,” an accommodation of those that believe that Christians ought not to swear oaths.  The United States has long accommodated many of those who have a conscientious objection to military service.  Federal and state laws protect at least some of those who conscientiously object to participation in or payment for abortion, sterilization, or contraception.

The point, of course, is that what Ms. Ward seeks in her lawsuit is not particularly unusual in American law and history.  Contrary to this long tradition, EMU failed to accommodate her conscience, expelling her for declining to participate in activities that would have violated her religious convictions — and for refusing to change her religious beliefs.  Harm to third parties from her exercise of conscience was minimal to non-existent.  I am hopeful that the U.S. Court of  Appeals for the Sixth Circuit, which recently heard oral argument on Ms. Ward’s appeal of a district court ruling against her, will issue a ruling consistent with the American tradition of accommodating conscience.