Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, June 30, 2009

"Discrimination Under God"

Wendy Kaminer has an essay, at The Atlantic, about the various lawsuits involving challenges to the application of schools' and universities' non-discrimination rules to religious associations and clubs that restrict leadership or voting privileges to co-religionists.  As she puts it,

On college and university campuses and in high schools, Christian student groups risk being denied official school recognition because their religious beliefs conflict with anti-discrimination policies.  These controversies often involve groups that bar gay students from qualifying for voting membership or leadership positions if they don't acknowledge the alleged sinfulness of their ways.   Liberal advocates of equality applaud the denial of official status to conservative groups deemed hostile to gay people; conservatives and some traditional civil libertarians decry the denial of fundamental associational and religious rights to Christian groups.

Several of us have blogged in the past about these cases, and most MOJ readers are familiar with the issues they raise.  Kaminer does a pretty good job, though, of boiling things down:

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.  . . .

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.

In my view, as I've suggested before, the word "discrimination" has acquired a meaning that renders it inapplicable to a decision by a religious organization to limit membership or leadership to co-religionists.


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