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).