A University of North Carolina–Wilmington professor’s speeches and columns are fully protected by the First Amendment, according to a published decision handed down Wednesday by the U.S. Court of Appeals for the 4th Circuit. Alliance Defense Fund attorneys contended that criminology professor Mike Adams was denied a promotion unconstitutionally because university officials were hostile to the religious and political views he espoused in his columns and speeches.

A lower court had said that Adams’ speeches and columns on matters of public concern were not protected by the First Amendment and instead constituted “official” speech as part of his job duties.  The 4th Circuit disagreed, finding that Adams’ columns and speeches constituted protected, private speech and that university officials could be held personally liable for damages should Adams ultimately prevail in the case.

“Christian professors should not be discriminated against because of their beliefs, and this decision thoroughly upholds that,” said ADF Senior Counsel David French, who argued before the court in January.  “The 4th Circuit’s decision is a ringing vindication of the academic freedom of public university professors.  Disagreeing with an accomplished professor’s religious and political views is no grounds for refusing him promotion.  Opinion columns are among the purest examples of free speech protected by the First Amendment.”

In its opinion in Adams v. The Trustees of the University of North Carolina-Wilmington, the 4th Circuit wrote that “no individual loses his ability to speak as a private citizen by virtue of public employment. . . .  Adams’ columns addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality.  Such topics plainly touched on issues of public, rather than private, concern. . . .  The Defendants’ arguments to the contrary rest on the same fallacy engaged by the district court, and focus not on the nature of Adams’ speech at the time it was made, but on his inclusion of those materials in the ‘private’ context of his promotion application.  Nothing in the district court’s analysis or the Defendants’ contentions rebut the conclusion that Adams’ speech was that of ‘a citizen speaking on a matter of public concern.’”

A former atheist, Adams frequently received accolades from his colleagues after the university hired him as an assistant professor in 1993 and promoted him to associate professor in 1998. However, after his conversion to Christianity in 2000, Adams was subjected to a campaign of academic persecution that culminated in his denial of promotion to full professor, despite an award-winning record of teaching, research, and service.

The case now goes back to the U.S. District Court for the Eastern District of North Carolina for further proceedings consistent with the 4th Circuit’s conclusions on Adams’ viewpoint discrimination and retaliation claims.

Earlier this year, Marquette University rescinded an offer it had made to Jodi O’Brien to become the dean of its Helen Way Klinger College of Arts and Sciences.  According to an article in the Chronicle of Higher Education, Dr. O’Brien, a sociologist at Seattle University, “is a lesbian and whose scholarship has focused on sexuality and gender.”  Marquette calls itself “Catholic and Jesuit.”  Regarding homosexual behavior, the Catechism of the Catholic Church states in part as follows:

Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that “homosexual acts are intrinsically disordered.”  They are contrary to the natural law.

I believe it is safe to assume that Dr. O’Brien’s writings on human sexuality contradict the position of the Roman Catholic Church.  Accordingly, it is understandable that a university which calls itself Catholic might be reluctant to install Dr. O’Brien as one of its leaders.  (If anything, it is curious that Marquette allowed the discussion with Dr. O’Brien to get as far as it did.)

Marquette’s decision to rescind its offer to Dr. O’Brien generated a great deal of controversy and criticism.  On June 9, 2010, Marquette announced that it and Dr. O’Brien had reached ”a mutually acceptable resolution regarding the university’s decision to rescind its contract” with her.  The terms of the agreement were not released.  According to a Marquette media statement, Marquette President Robert A. Wild, S.J., said his decision to rescind the contract “reflected his judgment for the university on issues arising from aspects of Dr. O’Brien’s writings as they pertained to the university’s mission and identity.”

Just as the O’Brien-Marquette controversy heated up, the Wisconsin Arts Board was reviewing a grant application submitted by Marquette’s Haggerty Museum of Art.  The Wisconsin Arts Board is a state agency created and funded by the state legislature.  One of its functions is to make grants, using funds extracted by the state from Wisconsin taxpayers.  The Arts Board voted unanimously to defer a decision on the Haggerty Museum’s application, explicitly citing its concerns over the school’s hiring practices, i.e., its decision to rescind the offer to Dr. O’Brien.  The Haggerty Museum’s application was not seeking funding to pay the salary of Dean of the College of Arts and Sciences or to communicate the university’s or the Roman Catholic Church’s position on same-sex conduct; it simply sought funding to help run an art museum.

On September 11, 2010, the Arts Board finally decided to give the Haggerty Museum a grant ($11,231).  But only because Marquette expressed an acceptable level of contrition for the audacity of its attempt to retain its Catholic identity.  The Arts Board was willing to release funds to Marquette’s art museum because Marquette (a) had (presumably) paid off Dr. O’Brien; and (b) had “pledged to examine the school’s hiring practices and faculty governance,” i.e., contemplate further distancing itself from orthodox Catholic teachings with which the government of the State of Wisconsin (the Arts Board) disagrees.

The Arts Board’s tactics are profoundly inconsistent with genuine religious freedom.  A state agency used its financial power to pressure a religious educational institution to repudiate the institution’s long-held religious view on a moral question — a view that millions of Americans share.  Even worse, the money the Board held hostage (museum funding) had absolutely nothing to do with the position in question (the dean of the college of arts and sciences).  The Board had leverage, and it chose to use it.

If the Arts Board had withheld the money, it would have violated the First Amendment to the U.S. Constitution.  A government entity may not condition receipt of a benefit upon one’s willingness to relinquish the exercise of a constitutional right, particularly where the “condition” has little to do with the purpose of the government benefit program.  Unfortunately, governments often abuse their financial power in this manner; and they are increasingly doing so to punish religious organizations that disagree with government bureaucrats about the morality of homosexual behavior.

But those religious organizations are not without a remedy, even if they cannot persuade the government to do the right thing:  the Constitution is on their side, and the Alliance Defense Fund and its over 1,800 allied attorneys stand ready to defend their fundamental First Amendment freedoms.

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.

That’s what a North Carolina court seems to be proposing.

Late last month, a state court of appeals held that North Carolina violated the state and federal constitutions by delegating the power to enforce state criminal law to Davidson College because Davidson has a connection to the Presbyterian Church (USA).

The court declared itself compelled by precedent to strike down the arrangement.  But it rather plainly encouraged the state supreme court to revisit controlling precedent and divide religious colleges into two categories — “religiously affiliated” ones (on whom the state could constitutionally confer benefits) and “pervasively sectarian” ones (on whom the state could not).  Davidson presumably would fall into the first category, whereas more Christ-centered institutions would fall into the second.

It is sometimes necessary for courts to determine whether a particular institution is “religious.”  For example, many laws banning discrimination on the basis of religion and “sexual orientation” exempt “religious” employers, making it necessary for a court to determine whether an employer accused of such discrimination is in fact a religious employer when it makes such a claim.

However, differentiating among religious entities based upon their degree of religiosity is a dangerous business.  It is unseemly at best, and unconstitutional at worst, for the government to go trolling through the particulars of a religious organization to determine whether it is “too religious.”   The distinction between “religiously affiliated” and “pervasively sectarian” was a prominent feature of the “bad old days” of Establishment Clause jurisprudence, when the Supreme Court used that distinction to require discrimination against religious entities that were too serious about their faith.  As a plurality of the Supreme Court has recognized, the phrase “pervasively sectarian” itself has its roots in 19th Century anti-Catholicism. 

Let us hope that the North Carolina Supreme Court does not accept the lower court’s invitation to turn the clock back and divide religious colleges into preferred sheep and disfavored goats.

In a house editorial, the New York Times urged the U.S. Supreme Court to rule against Christian Legal Society and for Hastings College of the Law in CLS v. Martinez.   What follows is a response, submitted to but not published by The Times.

In the case just argued before the U.S. Supreme Court, Christian Legal Society v. Martinez, the public should be wary of any superficial analysis that the case is all about “discrimination” by a Christian student club and a law school that wants to stop it.  While it’s true that Hastings College of the Law in California prohibits “discrimination,” this assertion of what Hastings does is terribly misleading.

Hastings doesn’t just prohibit discrimination on the basis of the nine protected characteristics listed in its written Policy on Nondiscrimination; it also requires registered student organizations to confer voting membership and leadership upon everyone—even people who reject an organization’s core beliefs.  As the Hastings dean stated in a PBS interview, this means that a black student organization would be required to allow adherents of the Ku Klux Klan to become voting members.  Such a nonsensical policy goes far beyond preventing the sort of invidious reliance upon irrelevant characteristics that non-discrimination policies are designed to prevent.

A recent New York Times editorial referred to CLS as a “Christian group that bars non-Christian and gay students.”  While CLS limits leadership and voting membership to those that share its values as many student clubs do, it allows everyone to attend its meetings and participate in its events.  Moreover, CLS’s sexual conduct rule for officers and voting members does not target “gay students.”  Tiger Woods and Mark Sanford, for example, aren’t “gay,” but if they were students, they would have trouble becoming CLS officers.

The Times editorial also stated, “For years, the Christian Legal Society chapter at Hastings adhered to this [non-discrimination] policy.”  In reality, the two groups calling themselves “Christian Legal Society” at Hastings prior to the onset of the current dispute were not affiliated with the national CLS organization and are not the same as the one involved in the current lawsuit.  Furthermore, the first one required its officers and voting members to sign its statement of faith, too—the very same one that the current CLS chapter uses.

So, is this case really just all about funding?  No.  The CLS chapter didn’t even intend to seek funding until the Hastings director of student services, after learning that two chapter leaders were going to the annual CLS conference, offered them travel funds—a $250 grant that was later revoked.  The chapter is far more interested in access to meeting space and communications mechanisms—access that the Supreme Court has already ruled in Healy v. James cannot be denied to clubs like CLS.

And when money is involved, it is not used to pay “for discrimination.”  Money used to pay for pizza at an event open to the public, for example, doesn’t become money for “discrimination” just because the event is sponsored by a group that wants leaders who share its views just like other clubs do.

It’s also not true that Hastings determined in 2004 that state law requires it to ensure that its student organizations do not permit discrimination.  In fact, until this case reached the Supreme Court, Hastings never argued that the law required it to exclude CLS.  And even if a state law did require Hastings to punish CLS, a state statute decidedly does not trump the obligations imposed upon Hastings by the U.S. Constitution.

In the end, the idea that Hastings has a valid interest in protecting its own reputation by distancing itself from groups that depart from its own views is, to put it mildly, disconcerting.  At the heart of the Free Speech Clause of the First Amendment is a recognition that the government cannot use its considerable power to disfavor messages with which it disagrees, simply because it disagrees with them.  While it is true that a government school can pursue a policy of “promoting diversity” and “opposing discrimination,” it is not free to use whatever means it chooses to pursue those objectives.

Because Hastings could not identify anyone who wanted to serve as a leader or voting member of CLS while rejecting its religious commitments, the school found it necessary to trot out its own “reputational interest” to justify its treatment of CLS.  But if the First Amendment permits the government to punish a group so that the government can “make a statement” about its disapproval of the group’s speech, may God help us all.  Any government punishment of dissenting speech becomes self-justifying.

Hastings wants to argue that it isn’t so terrible for a group not to be recognized.  But would it accept that argument if, say, a university in the deep South in 1975 refused to recognize a student group formed for people involved in homosexual behavior?  The fact of the matter is that CLS members pay student activities fees like all other students do.  Access to meeting space and the use of communications mechanisms are vitally important.  If they aren’t, why does Hastings (and virtually every other university and college in the country) confer such benefits upon student groups?

For these reasons, it’s logical for people of all beliefs to support a Supreme Court ruling in CLS’s favor.  And that’s precisely why 14 state attorneys general and nearly 100 diverse groups representing a wide variety of beliefs and practices filed briefs in support of CLS in this case.

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