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Ninth Circuit Rules Against Student Christian Groups At San Diego State

Posted on August 3rd, 2011 freedom of association | 23 Comments »

      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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ADF Senior Vice President; Senior Counsel - University Project

Left Wing Campus Magazine Attacks YAF For Defending First Amendment

Posted on July 13th, 2011 freedom of association | 3 Comments »

Here’s the last fifty years First Amendment rights on campus in a nutshell.  50 years ago the left advocated for the First Amendment rights of students (themselves) on campus.  They then gained positions of power in the universities and now run the show.  So that now when a conservative group stands up for the First Amendment rights of disfavored groups (now generally conservative groups like itself) on its campus, it is the left that dismisses the First Amendment and demands the status quo (the preservation of their own power). 

Young Americans for Freedom has a post up responding to the latest example of this at Stony Brook University.  Earlier this year the Student Government at Stony Brook University denied student activity funding to Young Americans for Freedom.  The funding, generally available to a broad spectrum of other student groups was denied YAF because student government made the subjective determination that it is “too similar” to College Republicans.  Of course, this similarity rule was not applied to prevent funding for an array of left wing groups.  Additionally, student government required groups seeking funding to submit a petition showing the signatures of approximately 800 students supporting funding for the group, including their phone number, address, and student ID numbers – a policy that favors popular groups and disfavors groups whose views are more controversial on campus (i.e. conservatism, evangelical Christianity, etc.).    

These policies clearly violate the First Amendment.  Directly applicable decisions of the United States Supreme Court (Southworth) and the Second Circuit Court of Appeals dealing with policies of Stony Brook’s sister-SUNY school (Amidon v. SUNY-Albany) eliminate any doubt about that.  Thus, in response to my letter, counsel for Stony Brook and its USG reviewed their policies, determined they were suspect, and quickly corrected them without any need for litigation.  Everyone should be happy with this result.  The First Amendment is vindicated, YAF gets the same status as other groups, and the parties were even able to work it out without the assistance of the federal judiciary. 

 “Think Progress,” a left wing magazine at Stony Brook, is not happy with this turn of events.  In an article titled: “Club Funding Drops $175,000 Thanks Largely to YAF’s Lawsuit Threat,” the supposedly “progressive” author blames YAF for any reduction in funding to student groups (while burying the lead – that student gov’t increased funding for itself by $250,000 and expects to make up lost club funding in the fall).  The author notes that the policy changes were required by the Supreme Court in Southworth,  quotes USG members explaining that fact, and then cites USG sources identifying that “viewpoint neutrality as the reason for the budget cuts.”  So, to sum up, the USG began complying with the First Amendment due to YAF’s efforts and this has reduced funding for some groups that received more under the previously unconstitutional system.  And the left attacks the group defending the First Amendment.

Unfortunately, this is unsurprising.  After all, student fee systems were created to increase funding for left wing causes and were serving that purpose well at Stony Brook.  And they would have gotten away with it too if it weren’t for those meddling YAF kids!

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Senior Counsel - Life

Do Canadian Students Have Any Right to Free Expression? Canadian Court Hears Arguments Today.

What would American college universities be like without a First Amendment to protect disfavored (i.e. Christian, pro-life) speech?  If Carleton University in Ottawa prevails in its legal argument before a Queen’s Justice in Ottawa today, Canadian students may soon find themselves a case study in a university education where there is not even a pretense of a marketplace of ideas. 

Earlier this year, 2010 Pro-life activist of the year Ruth Lobo and a fellow pro-life student sued Carleton University officials after they were arrested (click for video) for holding a peaceful Genocide Awareness Project event on their campus.  Carleton University is by any objective measure the equivalent of a “public” university in the United States.  Yet, Carleton argues in Court pleadings (paragraph 14) that the school is not subject to the Canadian Charter of Rights and Freedoms’ protection of freedom of expression because it is not a “government” entity that must honor these student rights.  Under Carleton’s reading of the Charter, the protections for freedoms of expression, association, etc. are inapplicable to universities and students have no constitutional protection for their expression on campus at Carleton and other similarly “public” universities.  Today in Ottawa, ADF Allied Attorney Albertos Polizogopoulos will defend against Carleton’s motion to dismiss the case.  Prayers are solicited.  A decision will likely come in several weeks. 

While the complaint also raises several other ways in which Carleton’s actions violated the students’ rights, if accepted, Carleton’s assertion that it is unconstrained by any constitutional protections for its students’ expression makes this a critical case to watch.  Not only will the case determine the free speech rights of millions of Canadian students, but if Canada abandons altogether the notion of free speech on its university campuses, such a precedent might also be used to diminish First Amendment protections on U.S. campuses. 

With the rise in appeals to international law in interpreting the U.S. Constitution, it is worth remembering that one of the grievances listed by Thomas Jefferson in the Declaration of Independence was that King George had “abolish[ed] the free system of English laws in a neighboring province [Canada] … so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies.”   Unfortunately, some in the U.S. would have the motive to take advantage of bad decision by Canadian courts. 

Certain groups find the First Amendment a pesky obstacle to creation of a more “progressive” university and society and seek to effectively repeal its protections for dissenting voices on campus.  If Carleton prevails in claiming that students lack any constitutional speech protections, we can expect not only dire consequences for Canadian students but also efforts to import that decision into U.S. courts.

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Senior Counsel - Life

Stanford Law Prof: No Marriage Equality Until Polygamy and Adult Incest Legalized

Posted on July 8th, 2011 marriage | 17 Comments »

  The New York Times last Sunday published an opinions piece by Stanford Law Professor Ralph Richard Banks that essentially argues that American society has not achieved “marriage equality” by allowing same sex couples to marry. He argues that polygamy and incestuous marriage between adults should be legalized in order to evolve to full marriage equality:

Historically, both polygamy and incest have been more widely practiced, and accepted, than the Supreme Court, and most Americans, seem to believe.  Over time, our moral assessments of these practices will shift, just as they have with interracial marriage and same sex marriage. We will begin to take seriously questions that now seem beyond the pale: Should a state be permitted to imprison two cousins because they have sex or attempt to marry? Should a man and two wives be permitted to live together as a family when they assert that their religious convictions lead them to do so?

    So, as I and others have argued, the real issue is “marriage deconstruction” not “marriage equality” in the debate over whether same sex couples should be allowed to marry.   In other words, the fight is between those who believe that societies should encourage people to have sex and make babies only within a public institution called marriage, defined uniformly for all as one man and one woman.  The opposite view is not “allow same sex couples to marry,” but to abandon any common, culture-wide definition of marriage and allow each person to do what he or she thinks is right in regards to marriage, sex and family.  However, the harmful results societies suffer from this “self autonomy” view of marriage have caused world cultures to reject it. The common experience of human societies since the dawn of history is that the “self autonomy” model of sex, marriage and family causes men to act irresponsibly (because it is all about one’s self-fulfillment),by exploiting women and neglecting the children the men produce.

A society cannot sustain itself over time when it allows each person to define marriage and responsible sexual activity any way he wants.

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ADF Senior Vice President; Senior Counsel - University Project

You Think Catholic U’s “Segregated” Dorms Are Bad? The Government Also Has “Segregated” Bathrooms!

Posted on July 7th, 2011 Religious Liberty | 6 Comments »

Greg Baylor reported on the threat to sue Catholic University in Washington D.C. for “discrimination” because it plans to move away from co-ed dorms and have students stay in male-only and female-only dormitories.  Law professor John Banzhaf of George Washington Law School in D.C. is threatening to sue Catholic University for “discrimination” because he equates single sex dorms to illegal racial segregation under the District of Columbia Human Rights Code.

The absurdity and extremeness of his legal theory can be demonstrated by the fact that buildings operated by the District of Columbia blatantly “discriminate” the same way by having “men’s” and “women’s” restrooms.   Shocking, isn’t it?  No, because it demonstrates common sense.  If the District of Columbia government buildings had racially segregated restrooms like those that existed in the past under Jim Crow laws, it would be unconstitutional and morally wrong.  But separate bathrooms or dorm rooms for men and women respect privacy differences.  If Prof. Banzhaf believes in his legal theory so strongly, he should also sue the District of Columbia for the “segregated” restrooms in its public buildings.  He misses the reasonable point that sex and race are not totally interchangeable forms of discrimination.  Many schools have men’s and women’s sports teams, which is morally acceptable and legal, but do not have racially segregated sports team because that would be morally wrong and illegal.

Prof. Banzhaf’s threatened lawsuit against Catholic University also dilutes the concept of civil rights by comparing single sex dorms to racially segregated housing.  It causes “language inflation” by debasing the currency of civil rights concepts.  It becomes difficult to communicate the real moral gravity of racial segregation, when it is compared to a private university having single sex dorms because of the school’s religious beliefs on marriage and proper sexual conduct.  Prof. Benzhaf would be wise to back off of his threats and not file this lawsuit against Catholic University.

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ADF Senior Vice President; Senior Counsel - University Project

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