The Ninth Circuit issued a disappointing decision yesterday against a Christian fraternity and sorority at San Diego State. The University allows campus organizations that it officially recognizes to exclude students who disagree with the message advocated by the group, unless the groups are religious.  San Diego State views it as “religious discrimination,” in violation of the campus nondiscrimination policy, when a Christian group requires its officers or members to believe in Christianity.  So that means the vegan club can exclude student deer hunters and those who advocate eating steaks at Morton’s, but the Christian groups must permit Buddhists and atheists to join.

 In this case, the university denied a Christian fraternity and sorority recognition because their constitutions stated that members and/or leaders must profess a specific religious belief.  That has meant the groups cannot meet in campus buildings for free, cannot set up tables in the main mall where students walk each day, etc.  The Christian groups are in effect banished from the main avenues of communication with students and relegated to a second class status.

The 2-1 majority upheld the policy.  Although the judges admitted that the policy as applied here treated the religious groups worse than non-religious student groups, it was constitutional because there is “no evidence that San Diego State implemented its nondiscrimination policy for the purpose of suppressing Plaintiffs’ [the Christian groups'] viewpoint…”  Slip opinion at 9996.   Intent is irrelevant.  The government cannot excuse its policy that violates a group’s constitutional rights because “it didn’t mean to do so.”

There is some good news in the decision.  The Ninth Circuit remanded the case to the trial court because we had raised sufficient evidence that San Diego State did not enforce its policy consistently across the board, and allowed other groups to exclude non-adherents, but not allowing the Christian fraternity and sorority to do so.

Judge Ripple, a visiting appeals court judge from Wisconsin, reluctantly agreed with the ruling because of precedent for the Ninth Circuit.  But in his concurring opinion, he urged the Supreme Court to take the case, and rule strongly in favor of religious liberty:

The net result of this selective policy is therefore to marginalize in the life of the institution those activities, practices and discourses that are religiously based.  While those who espouse other causes may support their membership and come together for mutual support, others, including those exercising one of our most fundamental liberties – the right to free exercise of one’s religion — cannot, at least on equal terms.

    We are examining our options about returning to the trial court, or appealing the case to the U.S. Supreme Court.

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Messiah College, a Christ-centered educational institution in Pennsylvania, is being pressured to abandon its commitment to biblical sexual ethics.  A group of Messiah alumni created an online petition urging the College to abandon that part of its Community Covenant in which students are urged to avoid “homosexual behavior.”  The petition was created in the wake of an openly homosexual student’s decision to withdraw from the College after allegedly experiencing harassment.

According to news accounts, some of the alumni signing the petition have indicated that they will withhold financial support from the College unless it accedes to their demands.  Messiah College President Kim Phipps issued a statement regarding the situation in which she reaffirms the College’s commitment to biblical sexual ethics.

Last week I participated in a discussion sponsored by the Federalist Society at Stanford Law School in California on redefining marriage to include same-sex couples, and its collision with the First Amendment rights of those who define marriage as one man and one woman only. We had a great discussion on some of the cases we have described here, like Elane Photography in New Mexico (who was sued for discrimination for declining to photograph a same-sex commitment ceremony), Jen Keeton in Georgia and Julea Ward in Michigan (who were expelled from graduate school programs in counseling from Augusta State and Eastern Michigan University, respectively, for refusing to change their beliefs that same-sex behavior is morally wrong). 

What I did not expect at Stanford was a debate on the relevancy of the 1967 Supreme Court decision striking down Virginia’s law banning interracial marriage, Loving v. Virginia.   Many who support redefining marriage to include same-sex couples are convinced that this case greatly supports their position.  It does not.  I have found that many people have not read the decision, or do not understand what the Supreme Court ruled in that case.  The decision doesn’t help them.  So it is a dreadfully flawed argument and a non sequitur to argue as many do that ”just as a ban on interracial marriage was unconstitutional, so a ban on same-sex marriage is unconstitutional.”

I have earlier discussed the deficiencies in analogizing a law defining marriage as one man and one woman as the law struck down in Loving v. Virginia. Because so many find the argument persuasive, let me state here what I said to the law students at Stanford:

The Virginia law only banned white people from having an interracial marriage. An African American man could marry a woman of Asian descent under the Virginia law struck down by the Supreme Court.   That interracial marriage was OK because it did not include any white people.  The obviously uneven application of the law based on race is why the Supreme Court struck it down.  These despicable laws did not say, “whites can only marry whites, blacks can only marry blacks, Asians can only marry Asians,” etc., but many wrongly assume that is what those laws said.

Race is different than sex. It would have been unconstitutional too if the miscegenation law said, “whites can only marry whites, and blacks can only marry blacks, ” etc.  But that’s not what the Virginia law struck down by the Supreme Court said.  That hypothetical does not provide any precedent for striking down a regular marriage law.  Even if the law did say that, it’s not important, because race is different from sex.  Only one man and one woman can produce a child, and the parents can be of any race.  Two men together or two women together will never produce a child. So having an opposite sex couple is essential for producing children.  What is critical is having one man and one woman.  The parents’ race is irrelevant in their ability to reproduce.   It is rational, in fact, it is wise for a society to urge men and women to get married in order to produce and raise their children, because they represent the next generation of their society.

Race has never been a universally-accepted element in the states’ definition of marriage. States generally have agreed that people seeking marriage must meet several criteria.  For example, the two people seeking marriage must be a man and a woman, they cannot be married to anyone else, they both must possess the mental capacity to consent to marriage, they cannot be near relatives (like brother and sister) and they both must be above a certain age.  Race has not been a universally-accepted part of the definition of marriage.  For example, not all states banned white people from having an interracial marriage.  Some states, like Virginia, allowed whites to marry nonwhites for many decades before imposing a ban on whites marrying nonwhites.  The existence of miscegenation laws is a sordid historical fact.  The court decisions striking down those laws offer no principle of law that compels legalizing same-sex marriage.

Some states did not ban interracial marriages consistently. Virginia was faced with the dilemma that one of its founders, John Rolfe, married a nonwhite woman, the famed Pocahantas. Virginia resolved this dilemma by making Pocahantas an honorary white person, and exempted marriages (in some circumstances) where a white person married a Native American.

I hope I convinced at least some of the law students at Stanford to stop embracing the false parallel between Loving v. Virginia and the efforts to legalize same-sex marriage.

At the beginning of a new year, there is a valuable opportunity for reflection on the past year and what it means for the future.  While 2010 was certainly not without its major victories for free speech, it also suffered some challenges.    Here’s a quick look back at developments in ADF’s academic freedom cases in 2010 and what they mean for 2011:

Badger Catholic v. Walsh, et al. (University of Wisconsin):

Part of the ongoing battle against the University of Wisconsin for its discriminatory student fee program, Badger Catholic presents a challenge to the denial of student fee funding to a Catholic student group because its activities may involve student-led prayer, worship or proselytizing in violation of Rosenberger’s requirement of viewpoint neutrality.  In September, the Seventh Circuit handed down its opinion, reaffirming that the Establishment Clause does not require such discrimination against religious student speech.  The court ruled that the University must treat religious student groups equally to nonreligious student groups, in terms of granting them funding for their expression and allowing them space to meet on campus.

Badger Catholic was a huge win, but the battle isn’t over yet.  Attorneys for the University of Wisconsin filed a petition for writ of certiorari to the United States Supreme Court in November. 

Sheldon v. Dhillon (San Jose-Evergreen Community College District):

 June Sheldon was an adjunct professor at San Jose City College. While teaching her class on human heredity, a student asked whether homosexuality was genetic or environmentally influenced.  Ms. Sheldon responded that the issue was complex and referred the student to materials mentioned in the textbook, but one student was offended by her response and complained anonymously.  The college district responded by firing Ms. Sheldon.  At the end of 2009, the United States District Court for the Northern District of California refused to dismiss Ms. Sheldon’s First Amendment claims, holding that an instructor’s speech in the classroom is protected by the First Amendment, and in June 2010, a settlement was finalized with the District.  As a result of the settlement, the District agreed to fully expunge any allegations of wrongdoing from Ms. Sheldon’s employment record and pay her $100,000 in damages.  The Sheldon case represents a huge victory for faculty free speech, and its precedent can be used in the future to help protect professors’ rights.

Professor Kenneth Howell (University of Illinois):

Dr. Kenneth Howell, a well-respected and well-liked professor at the University of Illinois, was fired in July after teaching the Roman Catholic Church’s position on homosexual behavior in a class called Introduction to Catholicism, after a student (who was not even enrolled in the class!) complained.  But after a few letters from ADF, and facing a groundswell of support by students and media scrutiny, the University reinstated Dr. Howell.  Moreover, a few months later, a faculty committee issued a report on the situation and agreed that Dr. Howell was entitled to due process, that professors of religious studies may have a perspective in teaching their courses, just like any other professor, and that students don’t have a right to not to be offended.  While the Howell situation did not involve a court ruling, the University’s corrective actions should serve as an example to other universities in the future when they are given the opportunity to protect the free speech rights of faculty members.  The Howell situation should also serve as an encouragement to students to stand up for what’s right—the students who started the grassroots effort to get Dr. Howell reinstated played an integral role in this victory.

Indiana University of Pennsylvania

Despite the Third Circuit’s 2008 ruling in DeJohn v. Temple University, many public universities under that Court’s jurisdiction continued to retain unconstitutional speech policies which allowed a student to be punished for saying something that simply offended another student.  In an effort to bring these policies into compliance with DeJohn, ADF allied attorneys sent letters to several universities, notifying them that their policies ran afoul of the Constitution and offering assistance in changing those policies.  As a result of a letter sent by ADF allied attorneys Leonard Brown and Randall Wenger, IUP agreed to change their unconstitutional speech code.   Hopefully more universities follow their lead in 2011 and voluntarily give up their unconstitutional policies.

Despite these victories, 2010 also presented some challenges:

In CLS v. Martinez, the Supreme Court ruled that University of California Hastings College of Law could have an all-comers policy without violating the First Amendment, even though, as the justices rightly pointed out, it made little sense.  (Extensive analysis of the Court’s decision can be found here, here, here, and here, for a start.)  Importantly, however, the Court remanded the case to the district court to determine whether there was discriminatory enforcement of the policy—in other words, whether CLS was targeted for unequal treatment under the policy.  Given the evidence in the record regarding the other student groups that required their members and leaders to hold views in common with the purpose of the group, we are hopeful that CLS will get justice in the end.  And because the ruling was quite narrow (virtually no other schools have an all-comers policy, probably because they are silly and stifle the marketplace of ideas), it had a lesser impact on free speech and associational rights than anticipated.  In the words of Michael McConnell, we have lived to fight another day. 

In Lopez v. Candaele (Los Angeles Community College District) and Rock For Life v. Hrabowski (University of Maryland, Baltimore County), the Ninth and Fourth Circuits, respectively, went the opposite way of the Third and Sixth Circuits in holding that students lack standing to facially challenge policies that restrict their speech.   OSU Students Alliance v. Ray (Oregon State University) is currently awaiting an oral argument date at the Ninth Circuit after a district court judge dismissed the students’ complaint.  While these rulings were certainly disappointing, ADF was able to obtain positive policy changes in all three of these cases.  Adams, Ward and Keeton are also at the appellate level following disappointing district court rulings.  All of these cases are still ongoing, and will be ones to watch for developments in 2011. 

Finally, the Supreme Court heard Arizona Christian School Tuition Organization v. Winn, a case that has implications for associational rights in the educational context.  The opinion in this case is expected in Spring 2011, probably late March or April. 

Given what’s at stake, 2011 promises to be an incredibly crucial year for student and faculty free speech in the courts.

Charlotte Allen has posted a thoughtful essay about the aftermath of the Supreme Court’s unfortunate June decision in Christian Legal  Society v. Martinez (“More Wreckage from Ginsburg’s ‘Neutral’ Ruling,” September 7, 2010).  Very much worth a read.