The U.S. Navy has rescinded an order permitting military chaplains to officiate at same-sex weddings on military bases, according to the Associated Press.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

The University of California-Davis will be correcting its unconstitutionally discriminatory definition of discrimination to ensure that all students are protected under its policies.  The official word came last night in a letter from Assistant Vice-Chancellor Rahim Reed to ADF Allied Attorney Tim Swickard, one of nearly 2000 allied attorneys across the country that give their time to defend religious liberty alongside us at ADF.  UC Davis had defined “religious/spiritual discrimination as:

Religious/Spiritual Discrimination – The loss of power and privilege to those who do not practice the dominant culture’s religion. In the United States, this is institutionalized oppressions toward those who are not Christian.

Thus, under the UC Davis definition discrimination against Christians was not “religious discrimination.”  Reed’s letter identifies the UC Davis document as merely “aspirational,” an odd half-defense of this policy to which no university should “aspire” (except perhaps the aspiration to dominance of Christianity on campuses – I’d be for that).

Universities (or government generally) should not be in the business of identifying Christians as unworthy of the same protections that they provide to other faiths.  We are very happy to see that UC Davis has removed the problematic definition from its website and has pledged to eliminate or amend it appropriately.  This is good news.  Universities can be ideological and recalcitrant on issues like this – even when they’re clearly wrong – and so it is no small thing that UC Davis moved so quickly to resolve this problem.

But ultimately this issue isn’t about the specific definition of “religious discrimination” at UC Davis.  As ludicrous as the definition was, it doesn’t establish that UC Davis is the worst campus for free speech or religious liberty in America.  There are plenty of outstanding candidates for that honor.  UC Davis simply reduced to writing what seems to be the de facto approach on many campuses where Christian students often face treatment from student governments, faculty, or the administration that students of other faiths never seem to face.

Perhaps I’m wrong.  But I somehow doubt that Jonathan Lopez would have been told to “Ask God What Your Grade Is” in response to a speech class assignment where he shared his views about marriage if he had discussed those views from a Muslim perspective.  I do not believe that Julea Ward would have faced a theological grilling (including efforts by administration officials to persuade her that she was theologically incorrect) and ultimately expulsion over her decision to refer two individuals seeking same sex relationship counseling due to her values conflict if her values were informed by a faith other than Christianity.  And I don’t believe that UC Hastings College of the Law would have ever derecognized a Muslim student group unless it would promise to allow Christians and Jews to become its leaders (and in Alpha Delta Chi v. Reed we have proof that the policy was applied to Christians and not to other religious groups).  Christians on many campuses around the country live with the sense that the protections and sensitivities that are granted to other religious faiths do not extend to them.

The issue here isn’t the text of UC Davis’s “religious discrimination” definition, but the culture on campuses that would ever allow such a definition to get through multiple levels of scrutiny and end up on a website of a university department specifically responsible for ensuring that the campus is inclusive of all faiths.  And that culture is one that is not unique to UC Davis.  Kudos for the policy change.  Now let’s get to the root of the problem.

That is the question that dominated the Society for Personality and Social Psychology at its annual conference, according to a fascinating article in today’s New York Times (also referenced by Inside Higher Ed).  But rather than looking at the usual litany of victims and rounding up the usual suspects, Dr. Jonathan Haidt of the University of Virginia argues that social psychologists discriminate against conservatives.  After polling the audience, over 80% of which self-identified as liberal, he commented: 

Anywhere in the world that social psychologists see women or minorities underrepresented by a factor of two or three, our minds jump to discrimination as the explanation. . . .  But when we find out that conservatives are underrepresented among us by a factor of more than 100, suddenly everyone finds it quite easy to generate alternate explanations.

And this leftist echo chamber has consequences on campus, especially for conservative students, who hide their political beliefs from colleagues who openly assume that everyone—or at least everyone who is considered “intelligent”—is liberal. 

Dr. Haidt’s diagnosis confirms what other studies—some of which the New York Times references—have shown:  that leftists and Democrats vastly outnumber conservatives and Republicans among university faculty.  And it confirms what professors like Dr. Mike Adams and students like Julea Ward have experienced:  if you merely express conservative or Christian views, you will face discrimination, in the form of lost promotions or even expulsion.  

But Dr. Haidt does not just diagnose the problem.  He also explains how it arose:  “social psychologists are a ‘tribal-moral community’ united by ‘sacred values’ that hinder research and damage their credibility—and blind them to the hostile climate they’ve created for non-liberals.”  And to break up this ideological monopoly, he prescribes some good medicine:  hefty portions of National Review and Thomas Sowell.  Hopefully, his message will catch on and the discrimination against conservatives and Christians in higher education will end.  Until then, perhaps we should call his prescription Chicken Soup for the Leftist Soul.

Since this is still the first week of the new year, it’s not too late to make some New Year’s resolutions.  Here are some suggestions for college administrators, based on what happened in 2010: 

10.  Surreptitiously confiscating an independent student newspaper’s bins and throwing them in a storage yard next to a dumpster is probably not a good idea.  Giving the independent paper access equal to other student publications is.

 9.  Stop the irrational prejudice against the Future Farmers of America.  You like diversity, remember?

 8.  Remember that forcing a student to change their religious beliefs to stay in school qualifies as indoctrination, not education.

 7.  Make your whole campus a “free speech zone,” as the First Amendment requires.  This would probably only work if you run a university for Smurfs.

 6.  Don’t treat pro-life students like criminals.  Praying on a college campus isn’t a punishable offense either.

 5.  Hire faculty based on their academic credentials.  Being “potentially evangelical” is not a disqualifier.  On that note, spend some time reviewing a little law called Title VII.

 4.  Don’t fire faculty members for teaching their subject matter.  Encourage thin-skinned students “offended” by said subject not to take the class.  Or alternatively, to grow up.

 3.  Repeal your speech codes without waiting to get sued, like the University of Virginia.

 2.  Re-read Supreme Court cases on student fees, especially if you work at the University of Wisconsin.

 1.  Realize that all-comers policies are as dangerous to the marketplace of ideas as Ford Pintos were to the highway.  Not to mention that they would effectively bar single-sex a capella groups, a decidedly huge blow to campus culture.