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9th Circuit: University Can Force Christian Groups Open to Non-Christians

But court says policy may have been enforced unconstitutionally.

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."

Being unable to choose leaders on the basis of religion could be a significant problem for campus religious groups, said Carl Esbeck, a constitutional law professor at the University of Missouri. "For most campus ministries, Christian and non-Christian, that's why it's a campus ministry. It's led by people who are like-minded for the particular sponsored faith."

While this case is the first to be ruled on since Martinez, it's not the first of its kind. In 2005, the Seventh Circuit Court of Appeals ruled Southern Illinois University (SIU)'s School of Law had to restore official recognition to its chapter of CLS. The university had ruled the group had broken its nondiscrimination requirements because it did not allow practicing homosexuals to become voting members or officers.

But the Seventh Circuit ruled SIU's enforcement of the policy on a religious group was viewpoint discrimination because it was singling them out, said Thomas Berg, professor of law and public policy at the University of St. Thomas. "[SIU had said] religious groups are the one belief-based group … that can't require some commitment to that belief in order to be a member or an officer, and that is viewpoint discrimination," he said. "That singles out a belief or a viewpoint and discriminates against it, and that is at the core of what the First Amendment is meant to prohibit."

Related Elsewhere:

The decision is available at the 9th Circuit's website.

Our earlier coverage of campus groups' legal fights includes:

Christian Legal Society Loses in Supreme Court Case | Group must allow leaders who disagree with its statement of faith. (June 28, 2010)

Supreme Court on Major Discrimination Case: 'Huh?' | Before the justices can render an opinion in the Christian Legal Society dispute, they'll have to figure out what the facts are. (Apr. 20, 2010)

The End of Religious Freedom? | The nightmare scenarios could very well unfold, but they are not the last word. A Christianity Today editorial (Apr. 19, 2010)

Small Ruling Is Potentially Huge for Student Groups | Christian Legal Society lawyer notes that exceptions to rules can be as discriminatory as rules themselves. (Mar. 19, 2009)

Faith Test Okayed | University says Christian group can require beliefs, behavior of its members. (Oct. 13, 2005)

Campus Collisions | Why InterVarsity Christian Fellowship was derecognized at some of America's leading universities (Oct. 2003)

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