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Disagreeing with Professor Volokh (Warning: Long Post)



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I never thought I’d type these words, but I must: I think Eugene Volokh is incorrect on a matter of constitutional law. Drafting this post, I feel a bit like a mortal approaching the Man of Steel and saying “Mr. Superman, sir, I’m afraid your strategy for attacking Lex Luthor is all wrong.” But here goes anyway.

Yesterday, he commented extensively on the Christian Legal Society’s and the Alliance Defense Fund’s lawsuit on behalf of “Brothers Under Christ” against the University of Florida. The Christian fraternity had been “de-recognized” for religious discrimination because it limited its membership to Christian men. Other student organizations on campus are permitted to discriminate on the basis of shared values, but religious groups are not permitted to discriminate on the basis of religion. (Full disclosure: I am a senior counsel with the Alliance Defense Fund but am not heavily involved in this case, since it was mostly litigated while I was in Iraq.)

Framing the question as, “May [a] public university deny funding and access to groups that discriminate based on religion?” Eugene argues that they shouldn’t as a matter of policy but can as a matter of constitutional law. I won’t repeat his argument (his own words are better than mine anyway), but before you read the following paragraphs, I would urge you to read his whole post.

Eugene cites two cases, Boy Scouts of America v. Dale and Rosenberger v. Rector and Visitor of the University of Virginia as foundational to the fraternity’s position. Yet this is incomplete. Boy Scouts (holding that the Scouts could exclude scoutmasters who were openly engaged in homosexual behavior) and Rosenberger (holding that religious student organizations were entitled to viewpoint-neutral access to student-fee funds) are certainly important, but they rest on a foundation of other cases, most importantly Healy v. James (reversing a university’s decision to deny recognition to Students for a Democratic Society) and Widmar v. Vincent (holding that universities had to provide religious student organizations with equal access to university benefits).

Healy is particularly crucial, because it places the discussion of student-organization associational rights in the right context — the university context. I think Eugene’s key flaw is to treat the university environment and university student-organization system as essentially like any other government program, when they most assuredly are not. The Healy court got this, holding that there was a free-association interest in student-organization recognition: “There can be no doubt that denial of official recognition, without justification, to college organizations burdens or abridges that associational right.” On campus, recognition typically equates with existence.

Everything flows from this initial determination. Once the free-association right locks in, the panoply of associational rights attach — including the now well-established right to expressive organizations to exclude those who do not share the organization’s mission or message. In fact, in Christian Legal Society v. Walker, a similar case, the Seventh Circuit found Healy to be “legally indistinguishable” and then went on to apply Dale to decide the precise associational issue.

On the university campus (this qualifier is critical), the Supreme Court has clearly established the following: Student organizations have a free-association right in recognition; religious student organizations have a right to access university facilities; and religious student organizations have a right to access student-activity-fee funds. On and off campus, expressive organizations have a free-association right to exclude those who don’t share their beliefs. And in fact, at Florida, every other kind of student organization has a right to exclude those who don’t share their beliefs, except for religious organizations.  

Three final points. First, student-fee funding is not “government funding” in the classic sense, and I don’t think Eugene adequately notes the distinction. As the Supreme Court noted, it is a fund that belongs to the students, and students can only be required to pay into that fund if they have the same viewpoint-neutral access to that funding as other students (or student groups). In other words, the university has in essence struck a constitutional bargain with students, forcing students to pay for expression they may abhor (pro-life students can’t opt out of funding a Planned Parenthood event) but giving them an equal shot at the funds for expression they support.  

Second, if I haven’t made this clear enough already, my analysis applies to universities that have recognized (and funded through mandatory fees) a vast apparatus of expressive organizations within the unique university free-speech environment. It does not necessarily apply to all government programs in all contexts, nor does it necessarily apply to all forms of “government funding” or other financial support of expressive associations. The university recognizes student groups (opens a forum) because it wants to foster student expression. It then opens another kind of forum by requiring student financial support for student expression. It cannot then uniquely burden religious groups who seek to participate in those fora.

Finally, what conceivable state interest is served by burdening religious organizations — and only religious organizations — in this manner? Does the state have an interest in ensuring that Buddhists can join a Christian fraternity? It surely doesn’t have an interest in ensuring that Democrats can join College Republicans or that hunters can join PETA. The sad reality of these cases is that universities are taking nondiscrimination rules that were originally created to protect religious expression and twisting them into instruments of religious censorship.  



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