Faith tests okayed for campus Christian group at ASU

[Newsom Michael]

Alan, I agree with you that the issues here are, at a theoretical level,
very complicated indeed.  Several interests, most or all of which are
constitutionally protected to one degree or another are in collision
with each other.  But I think that, underlying this obvious conflict,
there is a battle of norms and prescriptions.  The ASU case is just
another outcropping of the culture wars.  

 

As far as controlling principles are concerned, assuming that there are
any, Dale would suggest that the principle of free association trumps
the anti-discrimination principle.  Also, given cases like Good News,
the principle of free speech, combined with a curious
"anti-discrimination against [certain, i.e. evangelical Protestantism]
religion" principle (an anti-discrimination principle that has preferred
status as compared with "anti-discrimination" against various and sundry
minorities), trumps the nonestablishment principle. 

 

This ordering of principles applies across the board to the facts that
you supposed, I think, for it serves and advances the goals and purposes
of organizations like this campus Christian group at ASU, an evangelical
Protestant group, I'd wager.  And that, I am afraid, is the whole point,
principled or otherwise.

 

(I know that I am beating what many on this listserv think is a dead
horse.  But the fact of the matter is that this strange atextual free
speech-anti-discrimination principle has been invoked only to serve the
interests of evangelical Protestants, and perhaps Mormons as well.  I am
not aware of it being used to advance the interests of any other
religion, largely because these other religions have not sought to do
so.  Most religions, with the obvious exception of evangelical
Protestants, and perhaps Mormons, simply want to be left alone, free
from the overweening importuning of evangelical Protestants.
Evangelical Protestants and perhaps Mormons, if one is to believe the
cases and news accounts, are the only religions that are seeking to use
the law to extend their reach and influence.  Like it or not, that is
the way that the world is working these days.  The right way to think
about all of this, I think, is to view it as a question of persistence
(evangelical Protestants) versus resistance (everybody else).  There is
NO parity or equality between those who persist and those who resist,
although the rhetoric of many would suggest otherwise.  For a fuller
discussion see my article on Common School Religion, particularly its
rather lengthy conclusion.)  

 

  _____  

From: Alan Brownstein [mailto:aebrownstein at law.ucdavis.edu] 
Sent: Wednesday, October 19, 2005 6:39 PM
To: Law & Religion issues for Law Academics
Subject: RE: Faith tests okayed for campus Christian group at ASU

 

Can someone describe the controlling constitutional principle that
applies to these cases. Does it extend only to access to what may be
characterized as some kind of forum (public or non public)? Does it
apply Does it apply only to "official recognition" or also to financial
support or preferential access (perks/perqs)?  (For example can a
university decide to provide additional financial support or meeting
opportunities to campus groups that agree not to discriminate on the
basis of various characteristics - age, sex, race, sexual orientation,
religion etc.) Does a University have the constitutional authority to
prohibit discriminatory practices by recognized campus clubs. Can it
prohibit the Chess Club from refusing to accept black or Jewish
students?

 

I know nothing about the ASU case - but these issues have always seemed
more complicated to me than they apparently are to other people.

 

Alan Brownstein

 

  _____  

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brad M Pardee
Sent: Wednesday, October 19, 2005 11:00 AM
To: Law & Religion issues for Law Academics
Subject: Re: Faith tests okayed for campus Christian group at ASU

 


Marty Lederman wrote on 10/19/2005 11:34:46 AM:

> Yes, of course, the private club has a "right" (although not a 
> constitutional one, I'd argue) to exclude from membership any 
> persons who are sexually active outside marriage (which is what the 
> settlement apparently involves).

As I read the settlement description, though, they ARE able to exclude
from membership any persons who are sexually active outside marriage.
They have drawn a distinction between sexual orientation and sexual
behavior, and according to the lawyer for CLS, this "is what we asked
for in the lawsuit".   

> The question at issue, however, is not "membership," as such, but 
> instead the group's eligibility to be "recognized" by the 
> university, and to be given the public perqs that come with such
recognition.

I don't know what it's like at ASU, but at the University of Nebraska,
where I work, official recognition isn't so much about "public perq" as
much as it is about the ability to function on campus.  If your group is
not recognized, there are limitations on being able to advertise your
group's activities, your group can't reserve a meeting room on campus,
and so on and so forth.  Those hardly qualify as perqs but rather the
essentials of being able to function. 

> ASU has decided, like most schools, that it will not afford such 
> recognition and perqs to any groups that discriminate on the basis 
> of sexual orientation -- on the quite reasonable theory that ASU 
> does not wish to facilitate, or be party to, any activities for 
> which a percentage of its student body would be ineligible by virtue
> of their sexual orientation.   

Every campus has a percentage of its student body which would be
ineligible for membership in some organizations.  Are the College
Republicans required to be allowed to join the College Democrats and
serve in leadership?  Is a campus pro-life group required to accept
members who are actively involved in preserving the legal right to an
abortion?  Is an organization of Jewish students required to accept
members who are Christian, Muslim, Hindu, Buddhist, etc.?  Of course
not.  So why should the Christian organizations be the only
organizations that are forced to accept members who don't subscribe to
the group's beliefs? 

Brad

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