By Tom Krattenmaker
Should a student religious group at a public university be allowed to bar a certain group of students from membership — gay students, to be precise — without losing its official student-group status, and the funding and other benefits that go with it?
Today, the answer to that constitutionally loaded question depends on which federal appellate court you ask. In a case involving the Christian Legal Society at the University of California Hastings College of the Law in San Francisco (Christian Legal Society v. Martinez), the 9th Circuit Court of Appeals held that the school was entirely within its rights when it denied recognition to the Christian Legal Society over its unwillingness to accept as members gay students or any others who did not share the group’s beliefs. The 7th Circuit reached the opposite conclusion in a similar case at Southern Illinois University’s law school.
Clarity is presumably on the way, as the U.S. Supreme Court has taken on the Hastings case and will hear arguments April 19. Let’s hope the country comes out of it with a clearer understanding of what’s in and what’s out when it comes to the membership policies of religious student groups. And let’s hope that the high court sheds some much needed light on the larger issues evoked by the law school case:
Does religious freedom include the right to discriminate on the basis of gender, race or sexuality? Do authorities have the right to foist their values on religious groups through carrots and sticks such as meeting-space privileges and the threat of withholding funds? And, as more conservatives are asking these days, shouldn’t that oft-proclaimed liberal principle of “tolerance” also be invoked to the benefit of tradition-minded Christians?
Those looking for tidy answers and justification for the same old ideological positions will be disappointed. Complex questions such as these require complex thinking and nuanced answers. A little empathy helps, too.
It’s rather telling that two distinguished courts would reach different conclusions on these matters. Cases of this type are nothing if not excruciatingly difficult. They pit opposing principles that both carry great legal and moral weight: the right to free religious expression, and the right to be free of discrimination.
Let’s consider some of the practicalities. In denying recognition to the Christian student group, Hastings law school did not forbid its existence. Nothing except additional logistical hurdles prevents the group from assembling whenever it wishes, with whatever mix of members. The case is about the funding, reserved meeting space and other benefits that go with official recognition — and in exchange for playing by the same rules as all other student organizations, which are bound by the university’s anti-discrimination code.
Hastings’ defenders argue that the Christian group, in essence, is insisting on a privilege extended to no other student group — the privilege to exclude students on the basis of their identity.
Attorneys for the Christian Legal Society see it quite differently. “It’s completely unreasonable — and unconstitutional — for a public university to disrupt the purposes of private student groups by forcing them to accept as members and officers those who oppose the very ideas they advocate,” says Gregory Baylor, a lawyer for the Alliance Defense Fund, a Christian legal-advocacy group assisting the student group.
It’s tempting, yet unproductive, to sprint to our usual ideological positions on this one. A minute in the shoes of the Christian group leads to an appreciation of the bind in which it would find itself if its ranks included openly gay members or, especially, gay students in leadership positions. How could it convey its message about traditional sexual morality with any integrity if the group itself wasn’t living up to it?
But the group’s defenders would also do well to practice some of this empathy themselves. Please, no more of the victimization rhetoric so often used these days when conservative Christian groups are challenged; there’s much more than “anti-Christian hostility” motivating measures against discrimination.
Freedom from discrimination based on your color or gender or, as our society is coming to better appreciate, sexual orientation is not some flavor-of-the-month trifle. Like religious liberty, it’s enshrined in the Constitution, and correctly so. It’s not politically correct so much as it’s morally correct.
And then there’s tolerance, an area of misunderstanding if ever we’ve had one.
“I find it ironic,” one blogger writes, “that liberals, who espouse tolerance and free speech, are the worst offenders (in) not tolerating opposing views.”
The observation, written by Gary Ganu at RedBlueAmerica.com, is a familiar one in the national discourse. As the argument goes, liberals waving the banner of tolerance amount to nothing more than hypocrites, lightning quick to condemn and punish expressions of religion and politics not to their liking.
To hear it from such critics, tolerance is a wishy-washy commitment to non-commitment, a moral weakness that refuses to make a judgment about anything — and, worse yet, one that’s selectively applied or, when it suits its promoters, conveniently ignored.
But tolerance means much, much more. At its heart, it is a philosophy and moral commitment to accepting the rights of others to believe or behave differently from ourselves without excluding or penalizing. Don’t expect champions of tolerance to “tolerate” acts of exclusion or bigotry that represent the very opposite of the principle they hold so dear.
Seeking a middle ground
As to the matter before the high court, must a public university tolerate acts of exclusion performed in the name of religion?
Robert O’Neil, director of The Thomas Jefferson Center for the Protection of Free Expression, has studied and written about the Hastings and Southern Illinois cases. A middle path, he says, might well be the wise one. The justices could rule, for instance, that the Christian student group might rightly be expected to include gay students as rank-and-file participants, but not as officers.
He also suggests this possibility: Clearly communicate the anti-discrimination code, and expectation to abide by it, to all student groups. But refrain from action against any of them unless a real-life, excluded individual steps forward with a legitimate grievance.
As O’Neil says in an interview with Inside Higher Ed, such compromises might be the only way to respect both the “institutional interest in enforcing non-discrimination policy and the religious freedom and free association interests of these organizations.” Don’t both deserve that protection?
Today, it seems compromise has gone the way of the VCR. A nuanced resolution of the law school cases certainly won’t give any of us our daily dose of certitude or outrage.
But in this case and others like it, the middle road might be the right road: the road to reconciliation, the road to moving the country ahead.
Tom Krattenmaker, a Portland, Ore.-based writer specializing in religion in public life, is a member of USA TODAY’s board of contributors. His book Onward Christian Athletes was published this fall.