Today, the Seventh Circuit Court of Appeals issued an injunction against Southern Illinois University requiring the university to “recognize” the Christian Legal Society. This case presented yet another example of a university using an expansive nondiscrimination policy to “derecognize” a Christian organization that had the audacity to require that its voting members and leaders be, well, Christian and had the audacity to apply traditional Christian sexual morality to those members and leaders (no adultery, fornication, or homosexual sexual behavior).
According to the university, these rules violated university prohibitions against discrimination on the basis of religion and sexual orientation. A lower court had denied the Christian Legal Society’s request for an injunction and the Seventh Circuit reversed. The Court made three common sense arguments. First, according to the Court, a Christian organization that applies religious tests for membership and leadership and applies traditional religious rules of conduct does not violate any federal or state laws. In other words, CLS was engaged in entirely lawful conduct. Second, in a straightforward application of Boy Scouts of America v. Dale, the Court held that it impaired CLS’s rights to freedom of association to compel the club to include members or leaders who did not share its mission and message. The Court stated:
Our next question is whether application of SIU’s
antidiscrimination policy to force inclusion of those who
engage in or affirm homosexual conduct would significantly
affect CLS’s ability to express its disapproval of homosexual
activity. Dale, 530 U.S. at 648. To ask this question is very
nearly to answer it. As we have noted, while voting mem-
bers and officers of CLS must affirm and abide by the
standards of sexual conduct contained in its statement of
faith, CLS meetings are open to all. SIU’s enforcement of its
antidiscrimination policy upon penalty of derecognition can
only be understood as intended to induce CLS to alter its
membership standards—not merely to allow attendance by
nonmembers—in order to maintain recognition. There can
be little doubt that requiring CLS to make this change
would impair its ability to express disapproval of active
CLS is a faith-based organization. One of its beliefs is
that sexual conduct outside of a traditional marriage is
immoral. It would be difficult for CLS to sincerely and
effectively convey a message of disapproval of certain types
of conduct if, at the same time, it must accept members who
engage in that conduct. CLS’s beliefs about sexual morality
are among its defining values; forcing it to accept as
members those who engage in or approve of homosexual
conduct would cause the group as it currently identifies
itself to cease to exist. We have no difficulty concluding that
SIU’s application of its nondiscrimination policies in this
way burdens CLS’s ability to express its ideas.
Third, the Court noted that the university’s selective application of its policy indicated that CLS may have been targeted for its viewpoint. Women’s groups were limited to women only and the Muslim student group to Muslims only, yet they were not subject to any disciplinary action.
It is difficult to overstate the importance of this ruling. Over the last five years, dozens of universities have either tossed (or attempted to toss) Christian groups from campus because those groups limit membership to Christians or impose rules of conduct on their members. These actions have represented a fundamental threat to religious expression, and lawsuits have been filed against Rutgers University, the University of North Carolina at Chapel Hill, Penn State, Washburn College, the University of Minnesota, Cal State, Hastings, and others in an effort to maintain an evangelical Christian presence on campus. While the vast majority of cases have settled favorably, there has been at least one adverse ruling (at Hastings). Against this backdrop, the Seventh Circuit’s ruling is a critical rebuke to university efforts to outlaw orthodox Christianity.
There is much credit to go around. Many thanks to Greg Baylor and the excellent litigators at the Christian Legal Society’s Center for Law and Religious Freedom and to co-counsel (and my employer), the Alliance Defense Fund. Also, the Foundation for Individual Rights in Education weighed in with an excellent amicus brief. This is a big day for our first liberty.