December 23, 2014

Which of these policies setting the conditions for "recognized" student groups at a university actually reflects and fosters diversity, tolerance, and student freedom (recognized student groups can easily promote themselves and their events to students, routinely get space for meetings, and often are eligible for some funding):

 

Ohio State University: "A student organization formed to foster or affirm the sincerely held religious beliefs of its members may adopt eligibility criteria for its Student Officers that are consistent with those beliefs."

 

University of Michigan: Allows religious student groups to maintain religious standards for their leadership, and says, "Free speech and diversity, including religious diversity, are core principles at U-M. We value the existence of . . . faith-based student organizations at U-M. Their existence and their voices add significantly to our academic community and support those students who find solace, camaraderie, and guidance in their presence."

 

California State University system: "No campus shall recognize any fraternity, sorority, living group, honor society, or other student organization that discriminates on the basis of race, religion, national origin, ethnicity, color, age, gender, marital status, citizenship, sexual orientation, or disability. The prohibition on membership policies that discriminate on the basis of gender does not apply to social fraternities or sororities or other university living groups."

 

About the Cal State policy, Charles Haynes of the Religious Freedom Center at the Newseum Institute says, "College and university officials argue that their non-discrimination policies prohibit student organizations from imposing a faith-based requirement for leadership. Any student must be eligible to lead any group - whatever his or her beliefs. . . . When colleges and universities enforce 'inclusion' by excluding some religious voices, they cripple the spirit of free inquiry and robust debate that should be at the heart of their mission. The 'marketplace of ideas,' it should be remembered, is not confined to the 'marketplace of ideas we like'"  (italics added). 

 

Read more:

 

Chelsea Langston, "Civil Discourse and Principled Pluralism on University Campuses," Capital Commentary, Dec. 15, 2014  

 

Charles Haynes, "Welcome to college, where religious freedom goes to die," Newseum Institute, Sept. 29, 2014.

 

The end of the current Congress may well spell the end of the 20-year effort to pass a federal Employment Nondiscrimination Act--and the start of a campaign to pass a comprehensive LGBT civil rights bill that provides almost no accommodation for countercultural religious people and organizations.

 

A year ago, the Senate passed ENDA, to prevent LGBT discrimination in the workplace, after strengthening the protections for religious organizations that have always been integral to ENDA bills. But the House chose not to consider the bill--and in reaction to the Supreme Court's Hobby Lobby decision, and encouraged by President Obama's LGBT Executive Order for federal contractors, most LGBT and civil rights groups disavowed the religious organization exemption in the Senate ENDA bill.    

What's next? There's a chance that some Republicans in the new Congress will seek to pass an ENDA bill like the Senate bill, which sought to balance LGBT and religious-organization rights.  

 

Whatever comes of that, LGBT and civil rights groups have their sights set on a much more sweeping bill: an LGBT civil rights act that would provide sexual-orientation and gender identity nondiscrimination protections across the wide range of American society: all levels of public and private education, housing and emergency shelter, businesses and other public accommodations, loans and jury selection, and all federal funding--grants as well as contracts.

 

Bills are promised in the new Congress. In the meantime, there is a report with recommendations from the Human Rights Campaign and a more complete one from the Center for American Progress.

 

The reports urge that what they regard as discrimination based on sexual orientation and gender identity should be treated in federal, state, and municipal law just as racism is treated, with only the most minimal accommodation for religious practice and religious organizations. The HRC report shows its dismissive view of religious freedom mainly by giving it little attention.

 

The Center for American Progress report is more forthright, including a separate section devoted to arguing that religious freedom should yield when the issue is anti-discrimination law. It praises the New Mexico Supreme Court's denial of protection to the small photography business that declined to help commemorate a lesbian commitment ceremony, citing approvingly that court's view that religious freedom should be respected only as long as it doesn't intrude into how a believer conducts his or her life out in society. It celebrates the notorious religious-freedom undermining US Supreme Court decision of 1990, Employment Division v. Smith: as long as a law is not designed specifically just to undermine religious exercise, it is perfectly constitutional even if it has the effect of undermining religious exercise. And in response to Hobby Lobby and other decisions that honor the heightened religious exercise protection restored by the Religious Freedom Restoration Act (RFRA), the Center for American Progress report urges Congress to dramatically reduce RFRA's protections "to ensure it cannot grant a license to discriminate."

 

But actual "American progress" requires not the suppression of religious freedom but rather a fair balancing that does not undermine religious exercise and religious organizations when society works to suppress unjust discrimination.  To come to that balance, Congress will need to do more than just say No to these unbalanced proposals.  

* Lorna Dueck, "Trinity Western affair a trial of Canadian civility and tolerance," The Globe and Mail, Dec. 11, 2014.

 

"Canada's next chapter on going godless is gearing up for a nasty fight. It's a David versus Goliath match over a proposed law school. For now, "David" is Trinity Western University, a Christian school funded solely by donations and unsubsidized tuition fees of its 4,000 students. . . . Enter Goliath: Law societies in Ontario, Nova Scotia, and the civil rights lawyer, Clayton Ruby are in court battles to shut the school down as discriminatory. . . .

 

"What we're really fighting over is the right to diversity. Lost in the fireworks of this case is that Canadian students choose TWU and its Covenant because it reflects their identity. Mr. Ruby's and the law societies' fight imply that such identity can't be trusted in their definitions of public life. . . .

 

"The most radical outcome of this case would be for the courts to decide that the two visions have to live side by side, with neither identity group able to force its morality on the other. Stretching and difficult, this is what it means to make space for authentic diversity in Canada. It's a case where Canadian civility and tolerance is on trial."

 

. . .

 

 

* Essential new book on religious exercise in the world of corporations: Ronald J. Colombo, The First Amendment and the Business Corporation (Oxford Univ. Press, 2014).

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