The U.S. Court of Appeals for the Seventh Circuit recently held that Southern Illinois University (SIU) must reinstate the official student organization status of the Christian Legal Society (CLS) chapter at SIU because SIU's revocation of official status violated the First Amendment.
CLS is a group of about 6-12 students. The group expressly forbids voting membership to anyone who engages in or affirms homosexual conduct or any sexual relations outside of a traditional marriage. Applicants for membership can repent from past conduct to become members. Someone complained to SIU about CLS's membership requirements. After investigating, the SIU law school dean revoked CLS's registered student organization status as violating SIU's policy requiring equal employment and educational opportunities and a policy requiring student organizations to adhere to federal and state laws on nondiscrimination and equal opportunity. CLS sued SIU and moved for a preliminary injunction on grounds that SIU violated CLS's First Amendment rights of free speech, expressive association, and free exercise of religion, and CLS's Fourteenth Amendment rights of due process and equal protection. The district court denied the motion.
A 2-judge majority of a Seventh Circuit panel reversed. The majority reasoned that it was skeptical that CLS had violated SIU's policies, in part because "CLS requires its members and officers to adhere to and conduct themselves in accordance with a belief system regarding standards of sexual conduct, but its membership requirements do not exclude members on the basis of sexual orientation. * * * CLS's membership policies are thus based on belief and behavior rather than status, and no language in SIU's policy prohibits this." (Emphasis in original).
Regarding the expressive-association claim, the majority held that it had no difficulty concluding that SIU's application of its nondiscrimination policies burdens CLS's ability to express its ideas, applying Dale v. Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (held: the presence of an openly gay scoutmaster would significantly burden the organization's right to oppose or disfavor homosexual conduct and the state's interests did not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association), Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) (held: a state's public accommodations law could not be applied to force a St. Patrick's Day parade organization to accept a parade unit marching under a banner of an Irish gay and lesbian group), and Healy v. James, 408 U.S. 169 (1972) (held: state college had violated an organization's (Students for a Democratic Society) associational rights because the college refused to confer student organization status on SDS). Under the free speech analysis, the majority also concluded that, on a spartan record, SIU's affirmative action policy is viewpoint neutral on its face, but was not applied in a viewpoint-neutral manner.
The Seventh Circuit decision is at odds with recent decisions of the Second Circuit and the California Supreme Court. Just this year, in Evans v. City of Berkeley, 40 Cal Rptr 3d 205, 129 P3d 394 (Cal 2006), the California Supreme Court held that the City of Berkeley did not violate any rights of the Boy Scouts when it rescinded its long-standing permission for the Scouts to use a city-owned marina, free of charge. The City took that action because of the Scouts' discrimination against gay people, in violation of a city ordinance. (The Seventh Circuit's suggestion that the Christian Legal Society does not discriminate against gay people is absurd.)
In Evans, the California court held that “a government entity may constitutionally require a recipient of funding or subsidy to provide written, unambiguous assurances of compliance with a generally applicable nondiscrimination policy.” Id. at 211. Such a requirement does not violate any constitutional right of the Scouts, because “the Sea Scouts were required neither to espouse nor to denounce any particular viewpoint nor to form or break any association or affiliation, but only to assure Berkeley of their adherence to the city’s policies in connection with subsidized use of Berkeley’s facilities.” Id. at 212.
The Second Circuit reached a similar conclusion in Boy Scouts of America v. Wyman, 335 F3d 80 (2d Cir 2003), cert den 541 US 903 (2004). A state entity denied the application of a local BSA chapter to participate in the state’s workplace charitable contribution campaign, “based on a ruling by the Connecticut Commission on Human Rights and Opportunities that the Boy Scouts of America’s policy of excluding homosexuals from membership and employment positions meant that the local chapter’s participation in the campaign would contravene state law.” Id. at 83. BSA sued, contending that the state’s ruling violated its First Amendment rights. The Second Circuit rejected the contention, holding that the purpose of the law in question was “to discourage harmful conduct and not to suppress expressive association” and that the law was “viewpoint neutral.” Id. at 95.
Accord Barnes-Wallace v. Boy Scouts of America, 275 F Supp 2d 1259, 1288 (SD Cal 2003) (“The government’s decision to exclude organizations with discriminatory membership policies is viewpoint neutral when the purpose for the decision is to protect persons from the effects of discrimination and not to exact a price for the organization’s protected expression”).
Posted by: Charlie Hinkle | July 20, 2006 at 09:35 AM