In addition to constitutional limits on state power to interfere with religious discrimination by religious groups, federal law offers explicit protections to public school students engaged in religious activities. The federal Equal Access Act prohibits school administrators from denying student groups, like Truth, equal access or opportunity based on religion. Naturally Truth claimed that denying it official status violated the Act. The court countered by narrowly interpreting the Act's requirements, holding that the school's refusal to recognize Truth was based on a "content neutral" rule against discriminatory membership requirements and was not directed at the "religious content" of the groups' speech.

Maybe in the abstract the court's reasoning makes sense, to lawyers batting arguments around. But as a practical matter, it seems difficult if not impossible to distinguish between the group's right to choose members who share its religious beliefs and the group's right to express and uphold those beliefs. In Truth v Kent, the 9th circuit trivialized what the 7th circuit stressed in CLS v Walker - the central role of membership criteria in forging the group's message: the membership is the message, at least in part.



The 9th circuit relied on a legal fiction - that "the school is not denying Truth access based solely on its religious viewpoint, but rather on its refusal to comply with the District's non-discrimination policy." It's a fiction that ignores Truth's apparent inability to abide by District policy without violating its religious views.



The harm to a sectarian religious group of conditioning official recognition on a change in its membership rules and message is obvious. How might others be harmed if groups like the Christian Legal Society or Truth were recognized without altering their messages? Students who disagree with Truth that the Bible is the only infallible word of God or who consider CLS's beliefs about sexual conduct intolerant, anachronistic, or utterly unrealistic are free not to seek CLS or Truth membership, which would probably not offer them many like-minded colleagues anyway. But critics of these membership requirements are not content simply to take their business elsewhere; they want to deny the offending clubs official recognition partly because recognition generally entails financial as well as in-kind support and what some consider a symbolic endorsement. As the dissent pointed out in CLS v Walker, "CLS is trying to force an affiliation between itself and a state institution."



Can CLS claim the inviolate rights of a purely private association to discriminate when it seeks to avail itself of public support? The Supreme Court effectively answered that question in the affirmative when it upheld the rights of the Boy Scouts to exclude gay people, despite the public subsidies it enjoyed. But questions about the BSA's right to public support have lingered: Dale was something of a pyrrhic victory for the Scouts, which lost private and public sponsorship in the controversy over its exclusion of gay people; recently, for example, the BSA has been battling an effort by the City of Philadelphia to evict it from public space it has occupied for years.



Questions about public support for exclusionary private groups are even more complicated when they involve sectarian religious activities. In l995, in Rosenberger v University of Virginia, the Supreme Court required a public university to finance a Christian student newspaper engaged in religious proselytizing. The university relied on its policy denying support for all sectarian activities, in the apparent belief that funding the newspaper would violate constitutional strictures against establishing religion. The Court, however, held that not funding the paper was viewpoint discrimination in violation of the group's religious freedom. (In Truth v Walker, the 9th circuit distinguished Rosenberger by holding that denying recognition to the student bible club was not analogous to denying funding for a newspaper and did not constitute viewpoint discrimination.)



If you're confused by these cases and the conflicts between guarantees of private associational or religious rights and prohibitions on publicly supported discrimination or sectarian proselytizing, you can appreciate the challenges they present to the federal courts - and the unavoidable, variable judgment calls that metaphoric "umpires" on the bench are required to make. In my view, both Rosenberger and Truth v Kent were wrongly decided, with Rosenberger requiring unconstitutional state support for sectarian religious activities and Truth v Kent disregarding students' First Amendment religious and associational freedoms. But my view entails value judgments too: I consider the state interest in avoiding entanglement with sectarian religious activities, like publishing a proselytizing newspaper, more compelling than the state interest in imposing its vision of equality on religious groups.



Providing public support to discriminatory groups is legally problematic, of course, but at least in the school club cases, it seems a lesser threat than requiring private associations to abide by popular mandates to diversify, even, or especially at the expense of their religious beliefs. You don't have to be a whiny wing-nut to wonder if the denial of official status to Christian student groups reflects some measure of political correctness: Truth was denied official status partly because of objections to its name, which was insufficiently ecumenical, I guess. And both CLS v Walker and Truth v Kent involved credible claims that school non-discrimination policies had been applied discriminately to Christian student groups and not, for example, to single sex clubs or even other religious groups.



Conservative Christian groups convinced that they tread the one and only path to eternal salvation and liberals insistent that only their notion of diversity advances public welfare on earth obviously diverge ideologically, but they share a mistrust of dissent. What's troubling about the liberal mandate for equality reflected in these cases is the ideological conformity it demands. High school and college administrators who deny Christian groups official recognition engage in the discriminatory conduct they condemn - excluding people who will not pledge allegiance to official views. The difference is that private religious groups have essential First Amendment rights to exclude heretics; public officials have an obligation to protect them.





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