Suspect Class?
Stephen M. Bainbridge July/August 1998
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Imagine Christian groups that--by religious conviction--are opposed to the practice of homosexuality, yet are nevertheless required to admit practicing homosexuals in membership, or even leadership roles? Certainly, with America's wonderful heritage of religious freedom, that could never happened here.
Or could it?
In 1995 the University of Wisconsin suspended a Christian group accused of discriminating against homosexuals, purportedly on procedural grounds. In 1996 the University of North Carolina student government denied funding to an InterVarsity Christian Fellowship chapter because it refused to appoint practicing homosexuals to leadership positions. In 1996 the Davidson College student government revoked (and then restored) an InterVarsity group's charter for the same reason. In 1997 Grinnell College kicked off campus another InterVarsity chapter for excluding homosexuals from leadership positions.
If free exercise of religion means anything, it means that Christian groups should not be required to admit practicing homosexuals into membership or leadership roles. Yet in many U.S. colleges and universities that's not the case. Through various nondiscrimination policies these institutions have placed severe restrictions on the free exercise rights of student groups that view homosexual behavior as a sin that disqualifies those who practice it from membership or leadership within the group.
In September 1993, for example, at the University of Illinois, the campus chapter of the Christian Legal Society applied to the university for recognition as a registered student organization. The application form required the group to sign a pledge against discrimination on, among other things, sexual orientation. A CLS officer crossed out the words "sexual orientation" before submitting the application. When the CLS, refusing to submit a new application without the omission (as it was told by the school to do), was denied registered student organization status, it sought legal help, claiming its free exercise rights were violated.
Of course, that's not so easy a violation to litigate successfully anymore. Though in Sherbert v. Verner (374 U.S. 403 [1963]), the Supreme Court held that the state must show a compelling interest to justify a burden on religious activity-in Employment Division v. Smith (494 U.S. 872 [1990]), the majority rejected the compelling interest test, holding that a statute burdening religious exercise does not violate the free exercise clause so long as the challenged statute is facially neutral and of general applicability. In other words, so long as the state does not single out religious activity for regulation, religious convictions do not entitle an individual to an exemption from the law.
The response to Smith was RFRA, passed (as some members of the House Judiciary Committee put it) "'to turn the clock back' to the day before Smith was decided." RFRA applied to all levels of federal and state government, to all governmental agencies and actors, as well as to all forms of governmental action, including denials of government benefits, such as the university's denial of registered student organization status to CLS.
RFRA established a three-step inquiry. The preliminary question was whether the challenged state action substantially burdened someone's exercise of their religious beliefs. If so, the state had to prove that the action taken furthered a compelling government interest. If the state failed to make that showing, the individual claiming the act's protections prevailed without further inquiry into the merits of the state's action. If the state succeeded in showing it had a compelling interest, it then had to prove that the action taken was the least burdensome means of furthering that interest.
The university's denial of registered student organization status to CLS clearly burdened its free exercise rights. Courts have held that conduct motivated by religious belief is one of the ways in which people exercise their religious beliefs, even when such conduct takes the form of discrimination against some individual or class. Courts also generally accept that requiring religious organizations to comply with nondiscrimination statutes or policies constitutes a burden on the exercise of their religious activities.
The burden also was clearly substantial. Like many other student religious organizations, CLS principally engaged in a variety of activities central to religious exercise: evangelism, Bible study, fellowship. The ability to discriminate in choosing the members who participate in these activities, and especially the leaders who organize them, is an integral aspect of free exercise. No one disputes that a Protestant church could refuse to hire a Muslim as its minister, for example. CLS contended that requiring it to admit unrepentant homosexuals to membership and leadership amounted to the same thing.
Because CLS insisted that unrepentant homosexual activity is a sin, barring practicing homosexuals from membership and leadership was essential to ensuring its religious activities were conducted only by those committed to CLS's religious mission. By requiring CLS and like-minded religious organizations to ignore the sexual orientation of persons seeking membership or leadership positions within the group, the university opened such groups to those who do not share its religious beliefs. Worse yet, the university forced CLS to accept as members and leaders persons who might well seek to change the group's religious mission. As such, the university effectively compelled CLS to relinquish a central tenet of its message: that if Christ is the Lord of someone's life, that individual will not knowingly continue to disobey biblical directives as the group perceives them.
Some university administrators contended that denial of registered student organization status was not a punishment, but simply the withholding of a benefit. Given that RFRA applied to denials of benefits, as well as any other action that burdens religious exercise, this argument failed.
The university's refusal to register CLS harmed the chapter in a variety of ways. First, the chapter was stigmatized as a discriminatory organization. Second, it was denied access to funds made available to other student groups and previously made available to CLS. Third, it was barred from on-campus fund-raising activities. Finally, the foregoing sanctions, taken together, deterred CLS from conducting publicly visible activities on university grounds for fear that doing so would lead to the imposition of further sanctions. In effect, the denial of registered student organization status thus amounted to a punishment because it left CLS without means to carry out the public aspects of its religious mission.
Under RFRA, the substantial burden imposed on CLS by the university's nondiscrimination policy required the latter to justify its actions by showing that the state has a compelling interest in prohibiting private discrimination based on sexual orientation. This it could not do.
The nearest Supreme Court precedent is Bob Jones University v. United States (461 U.S. 574 [1983]), in which the court rejected free exercise arguments made by a university denied tax exempt status because of racially discriminatory policies. In concluding that the federal government had a compelling interest in eradicating private racial discrimination, the court relied on two principal factors: first, its own pronouncements dealing with the constitutional status of racial discrimination, which established "beyond doubt [the] Court's view that racial discrimination in education violates a most fundamental national public policy, as well as the rights of individuals"; second, the numerous legislative and executive pronouncements against racial discrimination that testified to "the public policy against racial discrimination." Having discovered that the government had an interest in proscribing racial discrimination of the sort practiced by Bob Jones University, the Court concluded that this interest was sufficiently compelling as to outweigh the burden that the denial of tax benefits imposed on the university.
Does eradicating private discrimination on the basis of sexual orientation similarly constitute a compelling government interest? Hardly.
First, if there were a strong constitutional proscription of discrimination against a "suspect class" (such racial minorities), perhaps then the same rationale justifying that proscription could mean that the government did indeed have a compelling interest in eradicating private discrimination against that suspect class on the same basis. Yet the Supreme Court has never held that homosexuals are a suspect class. To the contrary, in Bowers v. Hardwick (478 U.S. 186 [1986]), the Court explicitly denied that a right to homosexual activity was "implicit in the concept of ordered liberty." As such, it is much harder to infer that the state has a compelling interest in eradicating private discrim-ination on that basis than on the basis of racial discrimination.
Moreover, no general federal proscription of discrimination based on sexual orientation exists. Illinois' constitution forbade discrimination for many reasons, but not that. The Illinois Human Rights Act likewise prohibited discrimination on a variety of causes, but not sexual orientation. In fact, a proposed amendment to add sexual orientation to that statute was defeated in the same year that the university kicked CLS off campus.
In contrast, Illinois law strongly protects religious liberty. The Illinois constitution guarantees the free exercise of religion and, further, forbids the state from denying someone "any civil or political right, privilege or capacity" on account of their religious opinions. The Illinois housing discrimination statute exempts most religious organizations (except with respect to property used for commercial purposes); its employment discrimination statute likewise exempts these same organizations from prohibition based on religious discrimination.
This evidence substantially undermined the university's argument that its nondiscrimination policy was supported by a compelling state interest. The state had given no special constitutional or statutory protection to homosexuals. Unlike Bob Jones, where there was pervasive evidence of a paramount national policy of eradicating private racial discrimination, no evidence existed in this context. Given the state's policy of protecting religious liberty, the evidence from legislative pronouncements cut strongly in favor of granting exemptions from administrative proscriptions of discrimination on the basis of sexual orientation.
Of course, there is a difference between situations in which the state requires believers to act in ways that offend their religious sensibilities and those in which the state interferes in core aspects of religious worship. A state prohibition of discrimination on the basis of sexual orientation can burden religious belief in both ways. Suppose a devout Christian, who believes homosexual activity is a sin, seeks to rent out a basement apartment in his home. If the state forbids the landlord from discriminating on the basis of sexual orientation, the landlord's religious sensibilities may be offended, but his core religious activities remain unaffected. If the state forbids his church from discriminating on the basis of sexual orientation in selecting a minister, however, the state is now obviously interfering with the central core of religious exercise, namely, the worship experience.
Application of university nondiscrimination policies to student religious organizations falls into the latter category. While not true churches, student religious organizations engage in worship and other religious activities. The practice of meeting regularly in small Bible study groups, typical of student religious groups, is one of the hallmarks of the evangelical and funda-mentalist Christianity. Larger group meetings for prayer, song, and the giving of testimonies, which are also commonplace, differ but little from a fundamentalist or evangelical church meeting. Evangelism, an important part of the activities of student religious groups, is central to evangelical Christianity.
Courts have been sensitive to the distinction between the sorts of core religious activities at issue here and regulations that merely offend religious sensibilities. The cases in which courts have refused to exempt religiously motivated conduct from nondiscrimination laws typically involved commercial settings. Hence, for example, some courts refused to exempt landlords from laws prohibiting housing discrimination on the basis of marital status, even though being obliged to rent to unmarried cohabitants would offend the landlord's religious beliefs. Cases denying a free exercise exemption in noncommercial settings typically involved state actions that merely require believers to act in ways that offend their religious sensibilities and, moreover, have only "incidental" effects on their ability to exercise their religious beliefs rather than burden their core beliefs and practices.
Student religious groups are often engaged in core religious activities, a crucial point because courts have routinely refused to apply nondiscrimination laws to religious organizations when doing so would intrude on core religious activities. The right of free exercise thus has been held to preclude application of Title VII to the relationship between church and clergy. A federal ban on gender discrimination was likewise held inapplicable to a religious agency. A Catholic archdiocese was exempted on free exercise grounds from the Age Discrimination in Employment Act in parochial school hiring. Most notably for present purposes, a church was permitted on free exercise grounds to discharge an organist because of his sexual orientation, despite a city ordinance forbidding discrimination on that basis. Similarly, a pastor was permitted to withdraw an offer of employment as a parochial school teacher from a homosexual, despite a city ordinance prohibiting employment discrimination on that basis.
The logic of these cases is that a church or other religious organization is entitled to have leaders and employees who share their beliefs. The same logic applies to a student religious organization's choice of members and leaders. In either setting, the existence of the religious organization is linked to the selection of those who teach its message and practice its doctrines. Once the state begins interfering with those decisions, the ability to exercise one's religious beliefs freely is fundamentally undermined.
No doubt the University of Illinois adopted its nondiscrimination policy to promote tolerance and diversity, an admirable goal, unless "diversity" is simply a code word for liberal political morality. Otherwise diversity must also include respecting differences in opinion and belief. Tolerance and diversity achieved by coercing dissenters into conforming with prevailing academic mores is a barren accomplishment.
The freedom to be different was the foundational principle RFRA was intended to reestablish. Accordingly, as long as RFRA was on the books, universities could not require student religious groups to compromise their beliefs by adopting a politically correct position on religious issues as a condition of their right to equal access to university facilities. The University of Illinois eventually acknowledged the validity of this argument by granting CLS and other student religious organizations an exemption from this aspect of its nondiscrimination policy.
Now, though, RFRA is history. In City of Boerne v. Flores (117 S. Ct. 2157 [1997]), the Supreme Court struck down RFRA on grounds that it went beyond Congress's legislative powers. One of the sad results of this decision (and there are many) is that state laws burdening religious exercise are again valid as long as they are facially neutral.
What does this mean for student religious groups? It means that state universities and colleges can once again deny benefits to, or even kick off campus, any student group that, based on their religious convictions, excludes unrepentant practicing homosexuals from membership or even leadership. In other words, state university officials can now be back in the business of setting the membership policies of student religious groups.
The bottom line is that unless other action is taken (such as state RFRA), for now, student groups may still be required to do things that strike at the core of their basic religious values--in blatant defiance to the most fundamental principle of freedom: the free exercise of religion.
Stephen Bainbridge teaches law at the University of California at Los Angeles.