Last week, the Supreme Court issued a disturbing opinion that will directly impact students’ constitutional rights on public university campuses throughout the nation.  In CLS v. Martinez, the Court affirmed the facial constitutionality of a University of California-Hastings policy that forces student clubs to allow all Hastings students to become club members and leaders—even students hostile to the clubs’ purpose and core beliefs.  My colleagues have written several posts which provide in-depth analysis of the meaning and likely impact of this case.

In particular, David French aptly explains that the decision is both narrow and troubling.  Narrow, because Hastings’ “all comers” policy is virtually the only one in existence at a public university.  Troubling, because the decision’s sweeping language appears to significantly weaken the freedoms of speech and association.  But the actual impact of the decision still remains to be seen.  One of the primary concerns is that the decision will create a knee-jerk reaction in the courts to uphold standard nondiscrimination policies that were not at issue in Martinez. 

A similar trend began to emerge in the wake of Wallace v. Jaffree, a case where the Supreme Court reviewed an Alabama statute that authorized a daily moment of silence in the public schools.  The facts at issue demonstrated that this was indeed an extreme case.  Both the senate sponsor of the law and the Governor admitted that the statute’s sole purpose was to return prayer to the public schools.  Additionally, certain teachers at the plaintiff’s school had been using the period of silence to lead their classes in group prayers on a daily basis.  And the State of Alabama had previously tried multiple times to inject prayer into its public school system by passing school prayer laws, but each effort was rebuked by a federal court.  The Court explained that these factors showed that Alabama was not neutral towards religion as required by the Constitution, but was instead forcing prayer on its students.  The Court indeed made clear that under other circumstances, the protection of voluntary student prayer during moments of silence was a constitutionally permissible goal:

The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every students’ right to engage in voluntary prayer during an appropriate moment of silence during the schoolday.

Despite this clarification, because the case was the only word from the Supreme Court on moments of silence, courts immediately began to strike them down.  The same year Wallace was decided, a federal appellate court struck down a moment of silence law even though it had none of the egregious circumstances present in Wallace.  For twelve years, the legal landscape looked ominous for the moment of silence.  But finally, in 1997, the U.S. Court of Appeals for the Eleventh Circuit upheld Georgia’s moment of silence statute.  And soon after this decision, three other federal courts of appeal upheld similar statutes.

But to this day, Wallace continues to cast a shadow over federal courts and legislative bodies. Indeed, a federal district court in 2009 invalidated Illinois’ moment of silence law based on Wallace.  This decision has been appealed and the ADF Center for Academic Freedom is urging the U.S. Court of Appeals for the Seventh Circuit to reverse.  The court’s decision will go far in determining the breadth of Wallace’s impact.  Notwithstanding, opponents of religious liberty will continue to raise Wallace in court and in legislative bodies to defeat moments of silence wherever they are implemented or even considered.  

We are quite sure that university officials will invoke Martinez for as long as they can in order to push religious student groups to the fringe of the college campus.  But they should be aware, that Martinez is an extremely narrow decision that provides little refuge for the vast majority of nondiscrimination policies at American universities.  The ADF Center for Academic Freedom maintains that such policies, when used to compel belief-based groups to accept non-adherents, are unconstitutional.  We will continue to defend the constitutional rights of student groups burdened by such policies, and will insist that the courts strictly hold Martinez to its narrow terms.

The Health & Human Services Committee recently recommended that the Food & Drug Administration (FDA) maintain its lifetime ban on blood donations from men who have sex with men (MSM).  I blogged a few weeks ago about how San Jose State University (SJSU) prohibited campus blood drives in response to the FDA’s policy.

By invoking its policy prohibiting “sexual orientation” discrimination, SJSU revealed that the true aim of its policy was to make homosexual acts—as opposed to status—a legally protected class.  Save for religion—an exception enshrined in both our history and our Constitution—such an interpretation of nondiscrimination policies is unprecedented.  Such policies have traditionally been applied to protect only a person’s status, such as race, sex, age, or national origin, while leaving conduct proscribable under both criminal and civil law.

In light of SJSU’s extreme expansion of nondiscrimination policies, many of you may be thinking that I am crying wolf or that I’m an alarmist.  Perhaps SJSU is just an extreme outlier. Certainly other universities are not also charging down this path?  If these are your thoughts, then unfortunately, you are wrong.  Universities are gladly taking up the banner raised by SJSU in a variety of settings.

Eastern Michigan University (EMU) expelled honor student Julea Ward from its Graduate Counseling program in her last semester because her religious beliefs constrained her from assisting a potential client with his homosexual relationship.  EMU invoked its nondiscrimination policy to justify its decision even though the potential client was referred to another counselor and Mrs. Ward was willing to counsel him on any issue not involving his homosexual practices.

The Missouri State University School of Social Work (MSU) required Emily Brooker—as part of a class assignment—to actively lobby the Missouri Legislature in support of same-sex adoption.  When she objected based on her religious beliefs, MSU charged her with the highest level of academic sanction, subjected her to a 2 ½ hour interrogation of her religious beliefs, and threatened to withhold her degree.  MSU justified these actions based on Ms. Brooker’s “ethical obligation” to provide “service to all persons in need of assistance regardless of the person’s . . . sexual orientation . . . .”

And the University of California-Hastings Law School revoked official recognition for a campus chapter of the Christian Legal Society because the group required its leaders to abide by biblical standards of morality.  Even though CLS emphasized that such standards would only disqualify persons actively engaged in unrepentant homosexual behavior, the Law School deemed this position incompatible with the school’s policy against sexual orientation-based discrimination.

In these cases, the Christian students were willing to tolerate other persons’ professed homosexual status, as long as they weren’t coerced into personally condoning or encouraging homosexual behavior.  But such religious convictions become legally intolerable when “sexual orientation” includes all sexual choices and conduct.  Indeed, the universities above chose the most extreme sanctions in their attempts to purge the student body of any hint of the notion that homosexual behavior is immoral.

While there’s little question that university officials are bent on following SJSU’s expansive application of “sexual orientation” discrimination, ADF will continue to stand against these efforts in order to protect religious freedom.

This month, San Jose State University President, Jon Whitmore, decided to continue a two year old policy of suspending all blood drives on campus. The reason? Because the Food and Drug Administration (FDA) bans men who have had sex with other men (MSM) from donating blood. According to SJSU, this violates the University’s policy against sexual orientation discrimination. The implications of this decision are quite shocking.

First and foremost, the suspension will cost lives. Someone in the United States needs blood every two seconds. That means that 38,000 blood donations are needed daily to meet the demand. The Stanford Blood Bank near the SJSU campus is already facing a blood shortage—even to critical levels—for most blood types. Given that 20% of Stanford’s blood supply comes from students, it is likely that SJSU’s policy has contributed to this shortage. Bottom line: every donation SJSU’s policy deters, equals three lives lost that could have been saved.

Additionally, the FDA ban SJSU opposes actually saves lives. Undisputed scientific evidence confirms that male on male sex yields a dramatic increase in the presence and transmission of infectious diseases including HIV, Hepatitis B, and Hepatitis C. Consider the following statistics from the FDA:

Men who have had sex with men since 1977 have an HIV prevalence (the total number of cases of a disease that are present in a population at a specific point in time) 60 times higher than the general population, 800 times higher than first time blood donors and 8000 times higher than repeat blood donors (American Red Cross). Men who have had sex with men account for the largest single group of blood donors who are found HIV positive by blood donor testing.

Blood donor testing—although extremely sensitive—still cannot detect all infected donors. This is especially true with HIV, which often does not manifest itself in the blood until up to six months after infection. Because the FDA has not found any other method of reliably identifying MSM who are not at increased risk of HIV, it opted for a complete MSM donor ban to protect others from infection.

Finally, the FDA policy does not discriminate based on sexual orientation. The policy on its face applies to conduct—men who have sex with other men—not status. In fact, the policy also prohibits donations from other persons who have engaged in other potentially risky conduct such as intravenous drug abuse, sex for money, or travel to certain countries. And notably, the FDA does not ban donations from women who have sex with other women. So what is behind SJSU’s decision?

SJSU’s application of its nondiscrimination policy to blood drives reveals that it ultimately seeks to make sexual conduct itself a protected class. The ramifications of this are staggering. Under this interpretation, every nondiscrimination policy that includes “sexual orientation” would become a license to engage in any sexual conduct whatsoever. Sexual desire would trump the rule of law and the safety or health of others. Moreover, this interpretation would obliterate religious freedom because any religious group seeking to enforce Biblical standards of morality would automatically violate the nondiscrimination policy. This is especially true on college campuses where student organizations cannot even exist if they do not agree to abide by the school’s nondiscrimination policy. But this is what the advocates for the homosexual agenda and their partners in academia have wanted all along. SJSU has simply made it clear that it will push this agenda at any cost.

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