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, December 15, 2020

Church guidance on voting should include rebuilding of social trust

Now that the dust from the presidential election is (hopefully) beginning to settle, we need to revisit the guidance the United States Conference of Catholic Bishops has provided to Catholic voters, not to remove any of the current criteria, but to add what strikes me as a glaring omission: the rebuilding of social trust.

Surveys show that Americans’ trust in institutions and in their fellow Americans is in rapid decline, especially among young people.  This is a broader and deeper challenge than any candidates for political office can solve on their own, with causal connections to media, technology, gerrymandering, and the sorting of America along demographic and geographic lines.

But elected officials play a key role.  It is tempting to say, and many friends and relatives have told me, that “all politicians lie.”  Resting on such categorical assertions abdicates our responsibility as faithful citizens to discern what is true from what is false.  It is simply not the case that Bill Clinton’s inclination toward falsehoods was shared by George H.W. Bush or Jimmy Carter.  And there has been no recent president who trafficked in falsehoods as frequently as President Trump, nor any who weaponized disinformation as a core political strategy as pervasively as he has done.  There are clear differences among candidates, and those differences matter.

And yes, rebuilding social trust is about more than avoiding falsehoods.  It’s also about mutual respect, and characterizations of one’s political opponents as “deplorables,” some Americans as “cling[ing] to guns or religion,” or Mexican immigrants as “rapists,” are also corrosive to social trust.  We need to evaluate candidates in terms of their propensity to speak with respect toward all Americans – that must be part of the equation.

In “Forming Consciences for Faithful Citizenship,” the USCCB addresses solidarity by focusing on the preferential option for the poor.  That’s important, but solidarity also presumes a degree of unity, or at least the semblance of a common perception of reality.  We should aspire to share an accurate understanding of the world before we engage our political opponents on hard questions about human dignity and the common good.  When the “is” is deeply contested, debates about the “ought” are largely pointless.  And when survey data is underscored by stories of Catholics actively participating in Q-Anon and outrageous disinformation events such as the Jericho March, we have a serious problem on our hands. 

So, in addition to the importance of recognizing the truth of the Church’s moral teaching – reflected in policy issues that have long been addressed at election time – the bishops should speak out about truth more generally.  Weaponizing false information to divide Americans is morally unacceptable.  Tackling the many pressing challenges facing our country is only possible if we begin to rebuild social trust.  Truth matters, and it must matter to our elected officials.     

December 15, 2020 in Vischer, Rob | Permalink

Sunday, December 13, 2020

When Lawyers Fuel the Fire

Now that the U.S. Supreme Court has unanimously rejected Texas’s attempt to overturn the election of Joe Biden, it’s worth pausing to reflect on what we’ve learned over the past few weeks about the role of lawyers in our country.  At a time when we need lawyers to bring fact-driven advocacy to our political turmoil, Jenna Ellis and her team have worked furiously to discredit the election‘s outcome, claiming that the election was “stolen” and that President Trump “won by a landslide.” Their rhetoric, though not matched by admissible evidence, has nevertheless fueled distrust of the election results, especially among those already inclined to believe the worst about their political opponents.  By asserting wild claims in press conferences that do not match the evidence submitted with their court pleadings, the Trump campaign’s lawyers have driven cynicism toward our democratic institutions to new levels.

The rule of law depends in significant part on trust. There have always been lawyers – from both the left and right sides of the political spectrum – who make outlandish arguments for which the evidence proves inadequate. The difference with the lawyers’ behavior in the election’s aftermath is two-fold: 1) the far-reaching dangers of an incumbent president using all of his influence to attack our democratic infrastructure as corrupt; 2) the already wide polarization resulting from an ongoing red-blue sorting of our country along demographic and geographic lines. By seeming to legitimize the conspiracy theories circulating on social media, the Trump campaign’s lawyers have brought gasoline to the growing flames of social distrust.

One key dimension of a lawyer’s work is two-way translation: helping opposing parties and decision-makers understand our clients’ perspectives, and helping clients understand the perspectives of decision-makers and opposing parties. When those relationships cross the red-blue chasm, we may need more than translation – we may need a restoration of trust as a precursor to mutual understanding. In an environment as politically charged as the election’s aftermath, wisely stewarding the trust on which our institutions depend is especially important.

You can read the rest here.

December 13, 2020 in Vischer, Rob | Permalink

Friday, December 11, 2020

Three cheers for an independent judiciary!

I'm feeling grateful for our independent judiciary, and I hope you are too. And no, I’m not just talking about the U.S. Supreme Court's unanimous rejection of Texas’s attempt to overturn the election results in other states.  It’s also important to note that the Court issued four unanimous rulings yesterday on a variety of thorny legal issues. Since 2000, in fact, a unanimous decision has been more likely than any other result.  The public too often has – and too often is deliberately given – the impression that the Supreme Court is simply another battlefield for our political and cultural tribalism with “conservative” justices pitted against “liberal” justices in a no-holds-barred death match.  It’s not.  Our laws are shaped by competing visions of the good, to be sure, but the rule of law matters in ways that transcend politics. The legal merits of a case are not simply a function of political preference.

Even the 5-4 decisions are about more than politics.  Back in 1989, Justice Scalia provided the fifth vote in ruling that the constitutional right to free speech includes a right to burn the American flag.  He later explained, "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king."

We are a nation of laws, not monarchs.  In the election’s aftermath, the legal system is working as intended.  Judges are focusing on the evidence and applying laws established through legislation and centuries of precedent, regardless of their own political affiliation. 

To cite one example of many, Justice Brian Hagedorn of the Wisconsin Supreme Court was president of the conservative Federalist Society in law school and served as Republican Governor Scott Walker’s chief counsel. Last week, when his court rejected an attempt to invalidate Wisconsin’s election results, he wrote separately to warn that “judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election." 

At a time when long-accepted political norms are under serious strain, our courts’ continued commitment to the rule of law is a reason for gratitude and hope.

Robert Bolt, in “A Man for All Seasons,” famously depicts an exchange between Sir Thomas More and a young idealist, William Roper, about giving the accused the benefit of the law.

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I'd cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

In our highly polarized nation, Americans do not agree on who the Devil is.  Fortunately, we don’t have to.  An independent judiciary helps us ensure that the laws apply to devils, angels, and everyone in between.

December 11, 2020 in Vischer, Rob | Permalink

Thursday, December 10, 2020

From "I Have a Dream" to "Stop the Steal"

On December 12, in what organizers are calling “the Jericho March,” Christians are invited to gather in Washington D.C. to protest fraud and corruption in the presidential election. Organizers are asking participants to march around the U.S. Capitol seven times as the culmination of regional protests in which people of faith will march seven times daily around state capitols (in swing states, of course), following the biblical example of Joshua in bringing down the walls of Jericho. The event’s organizers urge participants to “Let the Church Roar!”
This comes fifty-seven years after Martin Luther King Jr. gave his “I Have a Dream” speech at another Washington protest steeped in Christian imagery. Do the sharp contrasts in the events tell us anything about Christianity’s changing relationship to American culture? Three broad conclusions emerge.
First, Christians have become more comfortable claiming victim status. Dr. King did not speak in terms of victimhood. He shared powerful stories of injustice without focusing on his own suffering, much less exaggerating it. After years of conservatives mocking liberals for playing the victim, President Trump is embracing the label wholeheartedly on behalf of his supporters. Consider last weekend’s rally at which the President proclaimed, in conjunction with alleged election fraud, "We're all victims. Everybody here, all these thousands of people here tonight, they're all victims. Every one of you.” Surveys show that a majority of white evangelicals believe that Christians face discrimination in the United States and are more likely to face discrimination than Muslims.
Second, facts now seem to matter less than feelings. The election conspiracy claims have been wildly unsuccessful in court – where evidence matters a great deal – but quite popular on social media, where a viral video doesn’t require more than a passionately articulated hunch. After the President’s rally last weekend, Rush Limbaugh confidently concluded that thousands of people would not have shown up to see someone who lost the election. Trump is not a loser, so he could not have lost, the reasoning seems to go. The 1963 March on Washington, by contrast, was not based on hunches or gut feelings; it followed decades of grass-roots organizing and litigation documenting specific policies and practices of racial injustice to be remedied through proposed legislation. The Christian call to justice targeted both hearts and minds.
Third, we’re no longer all in this together. In 1963, Dr. King left no ambiguity that “we cannot walk alone,” noting the many “white brothers” who “have come to realize that their destiny is tied up with our destiny,” and “that their freedom is inextricably bound to our freedom.” Dr. King protested against the perpetrators of injustice, to be sure, but his goal was not power to be wielded against “the other” – his goal was the restoration of relationships broken by segregation, the building of what he called the beloved community.
By contrast, the Jericho March organizers warn that “globalists, socialists, and communists” are set to “destroy our beautiful nation by sidestepping our laws and suppressing the will of the American people through their fraudulent and illegal activities in this election.” Several of the Jericho March speakers have called for the President’s political enemies to be jailed for attempting to steal the election. The beloved community is very tough to discern in such rhetoric.
Our country has benefited immeasurably from a rich and noble tradition of Christians protesting injustice, and I fully support the right of religious believers to protest peacefully for whatever cause they choose. I wonder, though, whether Jericho March organizers understand the messages about our faith that this particular cause is conveying to the broader world. What if Christians on both the left and the right were to join together to proclaim that:
  • Christians in other parts of the world suffer horrible persecution, and we should lift our voices on their behalf early and often.
  • Facts are essential to the fair administration of our elections, and we will respect the rule of law by trusting the independent judiciary to sort out those facts when we disagree.
  • The diversity of our nation is a blessing, and the voice of every American matters – especially those who have traditionally been excluded from our national conversations, regardless of whether they agree with us about politics.
That strikes me as a cause worth marching for.

December 10, 2020 in Vischer, Rob | Permalink

Snead's "What It Means to Be Human" makes Wall Street Journal's "Books of the Year" list

The new book by my Notre Dame friend and colleague Carter Snead, What It Means to Be Human:  The Case for the Body in Public Bioethics, has been included in the Wall Street Journal's "10 Best Books of 2020" list.  As I've mentioned before, Snead's book is an outstanding reflection and exposition of the content and implications of Christian moral anthropology, and a model, in my view, of what "Catholic legal theory" should look like.

December 10, 2020 in Garnett, Rick | Permalink

Wednesday, December 9, 2020

Staying Calm About Critical Race Theory

In the wake of George Floyd’s killing and subsequent protests drawing attention to our nation’s scandalously wide racial disparities, some American Christians appear to have become convinced that we must rise to meet an urgent threat: Critical Race Theory. Last week, for example, Southern Baptist seminary presidents issued a joint statement condemning racism but affirming that “Critical Race Theory, Intersectionality and any version of Critical Theory is incompatible with the Baptist Faith & Message.” It’s hard to know precisely why the presidents felt compelled to disavow Critical Race Theory (CRT) in particular, though Jason Allen, president of the Midwestern Baptist Theological Seminary, explained that “Confusion abounds on [CRT], but one thing is clear: the closer you look into the history, advocates, and aims of Critical Race Theory the more troubling it becomes.” Dr. Allen is correct that confusion abounds, with vague accusations of Marxism at the core of many criticisms, so let’s take that closer look.

Richard Delgado and Jean Stefancic, two CRT pioneers, explain that the wide-ranging and loosely organized movement is united by five key propositions. First, racism is “ordinary, not aberrational,” and so it is difficult to root out apart from the most glaring examples (i.e., we can end lynching, but it’s much more difficult to end employment discrimination). Second, because racism can advance the material and psychological interests of white people, there is limited incentive to eradicate it. Third, race is a product of social thought, not biology, and societies racialize different people at different points in history. Fourth, no person has a single, unitary identity, and “everyone has potentially conflicting, overlapping identities, loyalties, and allegiances.” (This is intersectionality.) And finally, because of their different life experiences, people who are Black, Indian, Asian, or Latino/a may be able to communicate insights that white people are unlikely to know on their own.

A faithful Christian can disagree with one or more of these core tenets, but Christian orthodoxy does not compel disagreement with any of them. Are there particular arguments made by particular advocates who invoke CRT that are in tension with Christian beliefs? Yes, including arguments, for example, grounded in cynicism about the efficacy of free will or the possibility of objective truth. Occasionally statements are made implying that historically oppressed populations not only have important insights to offer, but a sort of moral superiority as a result of their oppression. However, suggestions that the entire school of thought holds zero educational value for Christians is unjustified.

Indeed, CRT offers insights that may take Christian teaching more seriously than many Christians do. Consider, for example, the contentious issue of systemic racism. If the Fall tainted only individual choices and left our human-created systems untouched, that would be a surprisingly weak – and unbiblical – understanding of Genesis 3’s far-reaching effects.

Moreover, some Christians have rooted their opposition to CRT in what amounts to a radical individualist worldview – i.e., “I didn’t engage in slavery or Jim Crow, so what does racism have to do with me?” The Bible is filled with stories of sin’s collective consequences extending across generations, and the Christian understanding of the human person is rooted in mutual dependence. Those truths are not lost on CRT.

Compare the Christian response to another school of legal thought that is arguably more influential than CRT: Law & Economics. Put simply, this movement has shown the extent to which the function of our common law system aligns with economic principles. These insights have helped us design legal rules that promote economic efficiency, which is, generally, a good thing. But when it comes to putting a price on a human life, for example, Christians will (and should) start to squirm. When Ford decided not to fix the Pinto’s susceptibility to rear-impact explosions because paying jury verdicts for the ensuing deaths would be less expensive, that decision is tough for Christians to defend given our commitment to human dignity.

I have not seen many joint statements from Christian leaders making sweeping condemnations of Law & Economics. Such a condemnation, in my view, would also be imprudent.

Here’s why: for Christians, no theory of society captures reality more fully than the person of Jesus Christ. Resting secure in that knowledge, though, does not mean that Christians have nothing to learn from human efforts to make sense of the world. Especially when our churches still meet during what Martin Luther King Jr. called “the most segregated hour in Christian America,” it is unfortunate that those who train pastors chose to condemn a school of thought that has emerged from the lived experiences of our black and brown brothers and sisters. We should be listening, learning, and discerning truth – even when the truth is incomplete. CRT is not a comprehensive Christian theory of the world, nor does it aim to be. It is also not a reason to panic.

December 9, 2020 in Vischer, Rob | Permalink

Virtual Event: Advancing Religious Freedom in U.S. Foreign Policy and Foreign Assistance


Over the last four years, the United States has continued to push forward the more than 20-year legacy of International Religious Freedom policy. U.S. leadership has helped to galvanize an international coalition to advance this fundamental human right in the IRFB Alliance of more than 30 countries, through the annual Ministerial to Advance Religious Freedom, engagement with the growing network of civil society-led International Religious Freedom roundtables, and multilateral engagement at the United Nations and other fora.

With Executive Order 13926, IRF policy, as established by the International Religious Freedom Act (1998) and expanded with the Frank R. Wolf International Religious Freedom Act (2016), was given additional resources and an increased priority requiring religious freedom to be strategically integrated by the State Department into foreign policy and by USAID into foreign assistance.

To discuss the opportunities for implementation of that executive order and its importance, RFI President Tom Farr, founding director of the Office of International Religious Freedom, will host a conversation with Sam Brownback, Ambassador at Large for International Religious Freedom at the Department of State, and Samah Norquist, Chief Advisor for International Religious Freedom at U.S. Agency for International Development, and discussant Chris Seiple, Principal Advisor, Templeton Religion Trust.


December 9, 2020 | Permalink

Tuesday, December 8, 2020

What It Means (for Lawyers) to be Human

In his important new book, What It Means to Be Human, Carter Snead critiques expressive individualism through the lens of our embodiment and mutual dependence.  He focuses on issues of bioethics – abortion, assisted reproduction, and end-of-life concerns – and explains how “the virtues of acknowledged dependence” might be a corrective to the paradigm of the self-determining and self-sufficient individual. 

Snead looks to parenthood as the most powerful example of practices that “draw one’s gaze from inside toward the outside,” or as Michael Sandel described parenthood, as a “school of humility.”  Underscoring the “radical reorientation of one’s perspective as a parent,” Snead cites Steven Spielberg:

At the conclusion of his film Close Encounters of the Third Kind, Steven Spielberg’s protagonist leaves his family to join the aliens on their spacecraft to pursue his lifelong dream and obsession. In a documentary on the making of the film, Spielberg observed that he wrote this ending before he became a parent and “would never have made Close Encounters the way I made it in ’77, because I have a family that I would never leave.”

How does “acknowledged dependence” shape our understanding of the lawyer’s role?  Do we approach clients as pre-parenthood Spielbergs? Under the traditional view, the lawyer serves the client’s legal interests and suspends her own moral judgment regarding the client’s underlying goals.  Expressive individualism may find no stronger champion than Lord Brougham, for example, who famously remarked to the House of Lords in 1820 that an advocate “knows but one person in all the world, and that person is his client,” and that “to save that client by all means and expedients, and at all hazards and costs to other persons . . . is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”

Today there is no shortage of examples of lawyers defining their clients’ interests as though they are self-defining, self-sufficient, fully autonomous beings.  From Enron’s counsel, to lawyers defending the Church from sexual abuse suits, to the Trump campaign’s lawyers lobbing wild accusations about conspiracies to steal the election, the profession could benefit from an immersion in the work of Sandel, Alasdair MacIntyre, Charles Taylor, and Snead.

Not that the work of translation hasn’t been going on.  Tom Shaffer, most notably, spent decades bringing the insights of an authentic anthropology to legal ethics conversations, as has David Luban, among others.  But it’s still an uphill climb.  In public bioethics debates, we fear any curtailment of expressive individualism, and in legal ethics, that fear is magnified because the lawyer is the agent, not the principal.  So we make assumptions about the client’s stance toward the broader world without ever unpacking those assumptions or inviting the client’s reflection on their substance.  Perhaps the client will jump aboard the expressive individualism train wholeheartedly, in which case the attorney must either come along for the ride or resign.  But it’s a conversation worth having. 

Facing the fact of our mutual dependence matters well beyond our debates over bioethics, and Carter Snead has provided a very important nudge to reflect on the assumptions that shape legal practice. 

December 8, 2020 in Vischer, Rob | Permalink

2020 Report: The Business Case for Abortion (as if it were not obvious)

"Hidden Value: The Business Case for Reproductive Health" makes explicit what was already implicit in equality arguments in Planned Parenthood v Casey: abortion is a cheap way to keep women fully engaged in the workforce and so doing their part to increase GDP and make shareholders wealthier.

The 2020 report by Rhia Ventures offers five reasons businesses should better support contraception and abortion for women (or rather, "anyone who can become pregnant"). Number three says it all: "Providing High-Impact Benefits with Low-Cost Investments." After all, "[c]overage of contraception and abortion requires minimal investment from companies." 

Recognizing the contributions of women to the workplace and responding to societal demand, leading companies have invested significant resources to promote women’s advancement. Attention has focused on the gender pay gap, sexual harassment, and benefits, especially improvements to paid family leave, childcare, and fertility treatments that enable women and their partners to balance professional, personal, and family goals.


Despite these commitments and actions, one fundamental area remains largely overlooked: women’s access to contraception and abortion.

In light of the fact that relatively few businesses offer paid family leave or other supports for family life, it seems to me that abortion is still the privileged way we seek to enable women to "participate equally in the economic and social life of the Nation."  Our country's reliance on abortion for such participation has been especially devastating, in my view, on the poor. 

Rhia Ventures concludes its report with the final reason companies ought to pay for abortion: "Preparing for Greater Scrutiny: Employees, customers, and investors increasingly expect the private sector to act on social issues—and reproductive health is no exception." 

Employees are a significant source of support for reproductive health access. Employee giving platform Benevity cites reproductive health care provider Planned Parenthood as one of the top three beneficiaries of employee charitable giving for the past three years....


Pressure on the business community is coming from all sectors. San Francisco became the first major city to institute a procurement ban on companies headquartered in states with restrictive abortion policies. In the media, companies have received negative attention for campaign finance contributions to elected officials who sponsored restrictive abortion legislation, noting that the companies were acting contrary to their gender equity commitments. For example, a 2019 report by Equity Forward used publicly available data to detail financial support from 66 leading U.S. firms for legislators who have sponsored and passed abortion bans in states like Georgia, Alabama, Louisiana, and Missouri.


Investors have also taken notice. Coverage for reproductive health is now included as a factor in both the Bloomberg Gender Equality Index (GEI) and the Equileap Global Gender Equality Index (EQUAL). In 2019, 39 institutional investors representing $236 billion in assets under management signed a letter to more than 30 major corporations to inquire about insurance policies and benefits related to reproductive health, as well as positions on public policy and
political spending that impact reproductive rights.


A widely-noted 2019 statement from the Business Roundtable, signed by 181 CEOs, proposed to redefine corporate purpose from delivering value exclusively to shareholders towards value for a broader set of stakeholders. This expanded vision will encourage higher expectations for companies across many areas—including reproductive health care. As Bank of America CEO Brian Moynihan noted, “Our jobs as CEOs now include driving what we think is right. It’s not exactly political activism, but it is action on issues beyond business.”

So, take note Fortune 500, et al: don't just pay for your employees' contraception and abortion; publicize and lobby and "create a culture that encourages the use of reproductive health benefits," too. Isn't this the corporate responsibility we've all been waiting for!?

December 8, 2020 in Bachiochi, Erika | Permalink

Sunday, December 6, 2020

Student Religious Groups, "Religious Discrimination," and Greek Organizations: St. Thomas RL Clinic Brief

Wayne State University deregistered the InterVarsity Christian Fellowship (IVCF) as a student group in 2018 (and asserts it could still do so now) on the ground that IVCF commits "religious discrimination" by requiring that its prospective leaders sign a statement of faith agreeing with IVCF's beliefs. Deregistration means the usual things: paying steep room-rental fees, losing place in the line for room choices, losing access to school communications channels, etc. IVCF, represented by Becket, is suing the university in federal court. 

       The Religious Liberty Appellate Clinic at St. Thomas has filed an amicus brief on behalf of multiple national Christian campus groups, including the Fellowship of Catholic University Students. Our brief, on which my students Allie Cole and Garrett Stadler did initial drafting, argues first that by its nature and operation, applying the ban on "religious discrimination" to religious groups singles them out as the only groups that cannot demand that their leaders commit to the group's animating beliefs and ideology. That's a familiar argument, and (I think) utterly compelling.

       I especially want to tell others about our second argument: that because the university (among other exceptions) allows social fraternities and sororities to engage in sex discrimination, creating a gaping hole in its nondiscrimination policy,  its refusal to recognize an exception for religious groups to choose their leaders devalues religious interests and is not "generally applicable." The preference for social Greek organizations is a particularly scandalous aspect of various universities' mistreatment of religious groups. Our brief lays out the case as fully as I've seen anyone do it. Here's a part (I removed URLs from cites):


This exception creates a significant hole in the Nondiscrimination Policy. WSU recognizes 27 social fraternities and sororities. See Dean of Students Office: Fraternity and Sorority Life, Organizations. Together these organizations (and any others WSU recognizes in the future) are permitted to deny students of one sex or the other dozens of leadership offices, and hundreds of membership places. See Dean of Students Office: Fraternity and Sorority Life, Quick facts (WSU social Greek organizations had 550 members in Winter Semester 2019). WSU not only allows these organizations; it actively assists them in “promotion and marketing.” Dean of Students Office: Fraternity and Sorority Life, Promotion and marketing. Looking beyond these significant numbers, this Court can take judicial notice that at many colleges, Greek organizations pervasively affect campus social life and culture. Peter Jacobs, Why Fraternities Will Never Disappear from American College Life, Business Insider (Dec. 3, 2014, 11:30 AM).  By allowing—even encouraging—this gaping exception to its Nondiscrimination Policy but refusing a religious exception, WSU violates neutrality and general applicability and devalues religious groups’ interests.


           WSU’s defenses for its selective policy merely highlight that it devalues religion. It asserts that Greek organizations’ discrimination based on sex is not “the kind of invidious discrimination that [its] policies seek to prevent.” But when religious groups set criteria for leadership based on their religious beliefs, WSU calls that invidious. Its exceptions thus reflect WSU’s impermissible “value judgment” favoring other interests, while disfavoring religious interests, in setting leadership criteria. Fraternal Order of Police, 170 F.3d at 366....


           In short, single-sex social Greek organizations undercut WSU’s asserted non-discrimination interests as much as or more than student religious groups do. WSU exempts Greek organizations because it values them more than it values religious organizations. The discrimination may have an economic motivation. This Court can take judicial notice that “[f]raternity and sorority alumni are more likely to give to their colleges and are larger lifetime donors than other graduates. Especially at cash-strapped public universities, colleges rely on their housing as quasi-official dorms and would have to come up with an expensive alternative.” John Hechinger, True Gentlemen: The Broken Pledge of America’s Fraternities 112 (2017). But economic self-interest is no excuse for devaluing and disfavoring the constitutionally protected activity of religious exercise. If WSU wishes to accept the significant hole in its Nondiscrimination Policy created by its exception for Greek organizations, it must take the simple and reasonable step of allowing religious groups an exception so they can ensure their leaders adhere to the group’s beliefs. Cf. Calvary Chapel of Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2614 (2020) (Kavanaugh, J., dissenting from denial of application for injunctive relief) (“[N]o precedent suggests that a State may discriminate against religion simply because a religious organization does not generate the economic benefits that a restaurant, bar, casino, or gym might provide.”); Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1229 (C.D. Cal. 2002) (rejecting argument that revenue generation is a compelling interest justifying discrimination against religious organizations).

December 6, 2020 in Berg, Thomas, Current Affairs, Religion | Permalink