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A federal appeals court ruling this week could significantly diminish public university religious groups' ability to restrict membership and leadership to students who agree with their teachings.

The 9th Circuit Court of Appeals ruled Tuesday (Aug. 2) that San Diego State University (SDSU)'s nondiscrimination policy for officially recognized campus groups is constitutional and does not violate the rights of two Christian groups. The policy is based on a nondiscrimination policy used at all the schools in the California State University system.

The two Christian groups, sorority Alpha Delta Chi and fraternity Alpha Gamma Omega, had sued SDSU in 2005, alleging the policy violated their free-speech and religious-freedom rights. In order for the groups to be recognized as official campus groups, they were required to allow all students to be members, even if their beliefs were contradictory to the group's beliefs.

The three-judge panel disagreed with the groups, stating the policy is a "rule of general application" that is not unconstitutional in its intent. "[We] do not doubt that, regardless of [SDSU]'s purpose in enacting its nondiscrimination policy, the policy will have the effect of burdening some groups more than others," circuit judge Harry Pregerson wrote in the panel's decision. "But the fact that a 'regulation has a differential impact on groups wishing to enforce exclusionary membership policies' does not render it unconstitutional. … Any burden on religion is incidental to the general application of the policy."

But Jordan Lorence, senior counsel at the Alliance Defense Fund and a lawyer who argued for the Christian groups, said the intent of SDSU's policy is irrelevant. "If there is an official policy that violates the First Amendment rights of Christian organizations, it's unconstitutional," he said. "Intent does not exonerate the policy because the First Amendment violations remain."

The panel did state that while the policy might not be unconstitutional, SDSU's implementation might have been. The judges told a lower court to determine whether San Diego State exempted other groups from the nondiscrimination policy and whether it denied the Christian groups exemptions because of their religious viewpoints.

The court noted that the Newman Center at San Diego State requires that its members be "in good standing with the Catholic Church" and that the African Student Drama Association's constitution limits leadership positions to students from Africa. "It is possible that these groups were approved inadvertently because of administrative oversight, or that these groups have, despite the language in their applications, agreed to abide by the nondiscrimination policy," Pregerson wrote. But the record isn't clear, he said.

The Ninth Circuit is the first court of appeals to make a decision in a case like this since the Supreme Court handed down a ruling in the Christian Legal Society [CLS] v Martinez case last year. In that instance, the court said that the Hastings College of Law in California could require student groups to open membership and leadership to all students, even critics.

The "all-comers" policy at Hastings was an unusual one, but SDSU's rule is more selective and more common among state schools. The school says campus groups cannot restrict membership or leadership positions "on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition, except as explicitly exempted under federal law."

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August (Web-only) 2011, Vol. 55

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