Harvey A. Silverglate :A Campus Crusade Against the Constitution
http://online.wsj.com/articles/harvey-a-silverglate-a-campus-crusade-against-the-constitution-1411081302?mod=Opinion_newsreel_9
Limiting First Amendment rights for Christians undercuts rights for everyone else.
In my lifetime I have been fortunate to see private associations within civil society promote astonishing social and political advancements in civil rights for African-Americans, women and gays. The voices of a like-minded minority, when allowed to associate and present a unified message, can be powerful. Yet we cannot pick and choose which groups have rights. Thus the current controversy surrounding evangelical Christian organizations on college campuses is a test of our commitment to liberal and constitutional ideals.
Earlier this month the California State University System “de-recognized” 23 campus chapters of the InterVarsity Christian Fellowship (IVCF). This decision stems from a December 2011 chancellor’s executive order stating that “No campus shall recognize any . . . student organization unless its membership and leadership are open to all currently enrolled students.”
The new policy has insidious implications. Any student may attend IVCF meetings or participate in its activities regardless of belief. But because IVCF asks its leaders to affirm their adherence to evangelical Christian doctrine—a “belief” requirement—California state-university administrators have deemed the group discriminatory. IVCF chapters will no longer have use of certain campus facilities and benefits available to other groups. This policy guts the free association right that was enshrined in the First Amendment precisely to protect minority or unpopular views.
It is obvious why IVCF would want to restrict leadership to true believers. It would be anomalous for a conventional religious group of any kind to open its top leadership to, say, atheists who would want to change the group’s beliefs and activities. The pope has to be Catholic, after all.
Yet this concept of associational rights is apparently foreign to college administrators, especially regarding religious students who hold out-of-favor views about marriage and abortion rights. As contentious as these issues are—especially within the ideological rigidity of the college campus—it is the constitutional right of students to hold unpopular beliefs and collectively espouse them.
The battle over the status of evangelical and other orthodox religious groups was long resolved in favor of the rights of such students to organize and enjoy equal access to colleges’—especially public colleges’—facilities. But this changed in 2010 when a narrowly divided Supreme Court decided Christian Legal Society v. Martinez.
In a confused 5-4 decision, the justices held that a public university did not violate the Christian Legal Society’s First Amendment rights in depriving equal access to campus funds and facilities—as long as the university adopted an “all comers” policy that required all student organizations to accept all students as voting members and leaders, regardless of belief. Martinez was decided in the same muddled spirit as the California state-university policy, with all the same pitfalls.
The trouble with the “all comers” approach: It is fine for some groups—the campus French club’s mission isn’t likely to be compromised by a sudden influx of anti-francophone zealots—but not for others.
Given the heat that surrounds discussion of gay marriage and abortion, out-of-the-ordinary disruptive tactics—by either side against the other’s organizations—are a realistic concern. This is one reason why in an earlier era beleaguered minority groups like the NAACP and gay-rights groups were most in need of, and usually received, official protection from those who would undermine them.
In more recent years on college campuses the tables have turned, and religious groups that were once conventional now find themselves in need of protection. The Martinez ruling inadvertently compromised, rather than protected, the rights of minority groups.
The Martinez case and the plight of IVCF on campuses calls to mind an incident in 1995, some months after a wiser Supreme Court decided Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston. The Hurley court held that a socially conservative organization that for decades had sponsored Boston’s St. Patrick’s Day parade had the right to exclude a gay-liberation group from marching while displaying its own gay-rights banners and placards.
Writing for the unanimous court, Justice David Souter declared that “a speaker has the autonomy to choose the content of his own message” and that the conservative Boston group didn’t have to include marchers who would “alter the expressive content of their parade.” The parade was a form of expression, and organizers didn’t have to include off-message contingents.
One of the lawyers who lost in Hurley told me that he came to have a better understanding, and even an appreciation, of the ruling: He told me he had cited the Hurley opinion as precedent while representing a gay-rights group that went to court to prevent neo-Nazi brownshirts from marching in full regalia in the gay group’s parade. Only when the First Amendment is applied equally to everyone can it fulfill its crucial role.
Mr. Silverglate, a Boston criminal-defense and civil-liberties lawyer, participated in the filing of a friend-of-the-court brief on behalf of the Christian Legal Society by the Foundation for Individual Rights in Education, of which he is chairman.
Comments are closed.
