The Daily Tar Heel reports that University of North Carolina officials will investigate whether a Christian a capella singing group violated university policy banning "sexual orientation" discrimination.  The group, Psalm 100, unanimously voted to remove from membership a student whose views about sexual ethics contradicted the Bible's teachings.

According to the article, Psalm 100 is a recognized student group, and the university's non-discrimination policy thus applies to it.  The policy states in part:  "Membership and participation in the organization must be open to all students without regard to age, race, color, national origin, disability, religious status or historic religious affiliation, veteran status, sexual orientation, gender identity, or gender expression."  The policy also states in part:  "Student organizations that select their members on the basis of commitment to a set of beliefs (e.g., religious or political beliefs) may limit membership and participation in the organization to students who, upon individual inquiry, affirm that they support the organization’s goals and agree with its beliefs."  According to the article, Psalm 100 representatives have stated that the student in question was asked to leave the group because of his views.

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  The U.S. Navy has rescinded an order permitting military chaplains to officiate at same-sex weddings on military bases, according to the Associated Press.    The news story states in part:

 WASHINGTON (AP) – Under pressure from more than five dozen House lawmakers, the Navy late Tuesday abruptly reversed its decision that would have allowed chaplains to perform same-sex unions if the Pentagon decides to recognize openly gay military service later this year.

In a one-sentence memo obtained by The Associated Press, Rear Adm. Mark Tidd, chief of Navy chaplains, said his earlier decision has been “suspended until further notice pending additional legal and policy review and interdepartmental coordination.”

The Navy said its lawyers wanted to do a more thorough review of the legal decision that allowed Navy chaplains to receive training to perform civil unions on military bases, but only in states where same-sex unions are legal.

The full AP story is here.  

This news story shows that last December’s repeal by Congress of the federal law prohibiting people who engage in homosexual conduct from serving in the military (sometimes called Don’t Ask, Don’t Tell or DADT) raises major questions on how it  interacts with the federal Defense of Marriage Act (DOMA), which defines marriages as one man and one woman for all purposes of federal law.  And Congress never really debated or discussed the possible ”domino effect” of repeal of DADT on DOMA.  The hasty and rushed Congressional debate on repeal of DADT described the people affected as individuals who engage in homosexual conduct, and did not examine how the repeal would affect same-sex couples.  This narrow casting of the debate on the DADT repeal obscured important legal and practical questions. For example, if the military allows open homosexuals to serve in the military, must the military open base housing for married couples to same-sex couples if they are legally married in one of the states or nations that allows same sex marriage or same-sex civil unions?  Must it extend military benefits to same-sex couples?  What about allowing same-sex weddings in military chapels?  Federal DOMA would seem to prevent those changes, but  Congress never debated how the repeal of Don’t Ask, Don’t Tell would affect federal DOMA.  The Navy’s earlier order permitting same-sex weddings in military chapels shows the consequences of rushing through the repeal of DADT. Congress should not fully implement the repeal of Don’t Ask Don’t Tell until it has fully investigated how it will affect federal DOMA.

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.

Many of the legal controversies in which I’ve been involved in recent years follow the same pattern:  some government entity punishes a Christian group because it limits leadership to those who share its beliefs and moral commitments (including the proposition that homosexual intimacy is sinful).  The government calls this “discrimination” on the basis of religion and sexual orientation.

In the course of the ensuing disputes, someone inevitably asserts that the Christian group’s position is un-Christian.  The argument usually runs something like this:  Jesus sat down and ate with “sinners and tax collectors” (Luke 15:1-10); Jesus is thus “tolerant” of those engaging in wrongful behavior; and, therefore, the Christian group in question is flouting the example of Jesus by its alleged intolerance.

I am unpersuaded by this argument.  The Bible plainly reveals that Jesus ate with “sinners and tax collectors”; the question is “what deeper meaning can we legitimately infer from this fact?”  I am not convinced that Jesus’ willingness to eat with these individuals means that He approvedof their sinful behavior (and thus that a contemporary Christian group’s disapproval of homosexual conduct is un-Christian).   The remainder of the relevant passage in chapter 15 of Luke’s Gospel indicates quite the opposite.  Luke recounts Jesus’ response to the complaints of the pharisees and scribes:

So Jesus addressed this parable to them.  “What man among you having a hundred sheep and losing one of them would not leave the ninety-nine in the desert and go after the lost one until he finds it?  And when he does find it, he sets it on his shoulders with great joy and, upon his arrival home, he calls together his friends and neighbors and says to them, ‘Rejoice with me because I have found my lost sheep.’  I tell you, in just the same way there will be more joy in heaven over one sinner who repents than over ninety-nine righteous people who have no need of repentance. 

Or what woman having ten coins and losing one would not light a lamp and sweep the house, searching carefully until she finds it?  And when she does find it, she calls together her friends and neighbors and says to them, ‘Rejoice with me because I have found the coin that I lost.’  In just the same way, I tell you, there will be rejoicing among the angels of God over one sinner who repents.

Jesus does not deny that the sheep and the coin were lost.  Happiness and joy arise when the sheep and coin are found; happiness and joy arise when sinners repent.  Jesus ate with “sinners and tax collectors” not to approve their sinful behavior, but rather out of desire that they repent.

All the Christian groups I have encountered over the years have been very much willing to “eat with sinners and tax collectors.”  For example, the Christian Legal Society chapters I have represented always welcomed those who reject Christian teaching and Christian moral standards to participate in their meetings and events.  This, combined with their unwillingness to affirm conduct the Bible deems sinful, strikes me as faithful to the example of Jesus.

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.