The tragedy of removing some religious organizations from campus would not be merely the loss of religious liberty, an enormous and embarrassing loss indeed, but also the tacit admission by the administration that pluralism is not, in the end, a possibility. It’s an admission that, at the end of the day, the university must ask student communities to surrender their particularities to guard against controversy and debate. Our social responsibility in a diverse university is to protect and preserve ideas, not only one’s own ideas or popular ideas, but all ideas that are peacefully and thoughtfully expressed. I’ve seen this lived out beautifully these past months as students and campus chaplains, despite real differences in belief and practice, have met, dialogued and sought together to preserve liberty on campus for all student groups. This is the promise of pluralism — that communities can have opposing ideologies, yet not silence one another, but instead learn to live as neighbors and, more radically, as friends.2
Allowing religious student groups to maintain their unique religious identities promotes a healthy intellectual, social, and religious diversity on campus. Vanderbilt is not simply silencing religious voices, but also reasonable voices that call upon the university to practice the tolerance and diversity that it preaches, if only for the sake of American pluralism.
The Brave New World of Bronx Household of Faith
The use of nondiscrimination policies to bludgeon pluralism and religious liberty is not limited to the college campus. In a petition for certiorari now before the Supreme Court, the Second Circuit upheld New York City’s Board of Education’s denial of a church’s request to use a middle school on Sundays, just as other community groups could use school facilities outside of school hours. In dicta, the court suggested that the church could be excluded because it denied Communion to unbaptized persons.3
The case began in 1995 when the Board of Education refused a New York City church, Bronx Household of Faith, access based on the Board’s written policy at the time that prohibited access for “religious services or religious instruction,” although the policy allowed “discuss[ion of] religious material or material which contains a religious viewpoint.”4 The Board, then and now, ignored the Supreme Court’s 1981 Widmar decision that held that religious worship is a form of speech and association protected by the First Amendment.5
Nor is this the first instance in which Second Circuit judges have refused to heed Supreme Court precedent protecting religious speech. In its 2001 Good News Club decision, the Supreme Court majority reprimanded the Second Circuit for ignoring its 1993 Lamb’s Chapel decision.6
In both Lamb’s Chapel and Good News Club, the Supreme Court reversed Second Circuit rulings that upheld a school district’s denial of access to a religious community group. Both times, the Supreme Court rejected the districts’ worn arguments that the Establishment Clause justified their exclusion of discussions from a religious viewpoint or religious instruction.
Each time, the Supreme Court rejected the Second Circuit’s ultra-fine line-drawing between religious speech and, well, “other” religious speech. Remarkably, in the latest iteration of the Bronx Household case, the fourth published Second Circuit opinion in the case’s sixteen year lifespan, the Second Circuit concedes that religious speech, religious instruction, religious discussions, and religious worship cannot be excluded from public property, but insists that “religious worship services” can be.7
Even more troubling than imaginary line- drawing and Establishment Clause misuse are the irrational arguments advanced by the school districts or the courts. For example, in Lamb’s Chapel, the school district informed the Supreme Court that it denied “use of its property to a ‘radical’ church for the purpose of proselytizing, since to do so would lead to threats of public unrest and even violence,” an argument the Court rejected.8 In Good News Club, the Second Circuit discerned that the “’Christian viewpoint’ is unique . . . because it contains an ‘additional layer’ that other kinds of viewpoints do not,” again an argument the Court rejected.9
Similarly, in Bronx Household, the Second Circuit mystically explains that a “worship service is an act of organized religion that consecrates the place in which it is performed,making it a church.”10 But the Establishment Clause would collapse under the weight of such a legal standard. National cemeteries are not churches even though religious worship services occur on a daily basis. Yellowstone National Park does not morph into a church because religious worship services occur regularly in its campgrounds to accommodate travelers. Nor does an aircraft carrier become a church because its chaplains regularly hold religious worship services for the sailors.
Yet another Second Circuit argument is sobering and brings us full circle to the use of nondiscrimination principles to exclude religious groups from public spaces. Twice the Second Circuit has floated the suggestion that the Board of Education use the specter of discrimination to justify its exclusion of religious groups. As the Second Circuit has explained,“the religious services Bronx Household conducts in the school are not open on uniform terms to the general public. Bronx Household acknowledges that it excludes persons not baptized, as well as persons who have been excommunicated or who advocate the Islamic religion, from full participation in its services.”11 And what exactly does the Second Circuit mean by “full participation in its services?” One judge wrote more bluntly in his 2007 concurrence, identifying three separate measures by which Bronx Household was insufficiently inclusive. First, church members who “publicly advocat[ed] the Islamic religion” might be excommunicated. Second, “people who have not been baptized” could not receive Communion. Third, there “may be a substantial question whether Bronx Household’s meetings are truly ‘open’ to people who reject Christianity.”12 The irony of religious groups being excluded in the name of inclusion hardly impedes the court’s desire to be of assistance in excluding the church.
Will Justice Kagan Be Justice Brennan 2.0?
The United States Solicitor General recently adopted a miserly view of the First Amendment’s protection of religious liberty in the Hosanna-Tabor case.13 There a church dismissed a teacher, who was credentialed as a minister by the church, from its religious school because, in the church’s view, she had violated church doctrine. The teacher and the government claim she was terminated in retaliation for asserting rights under federal law prohibiting disability discrimination. The church invoked the “ministerial exception,” a forty year-old doctrine adopted by federal judges to avoid violating churches’ First Amendment protections when ministers claim that their employment decisions violate discrimination laws.
Try as it might, the United States Government was unable to find protection for churches’ employment decisions in the Free Exercise or Establishment Clauses (except possibly against a remedyofreinstatement). Atoralargument,Justice Kagan found it “amazing” that the government thought that “neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.”14 While Justice Kagan recently showed herself to be a strict separationist in the Establishment Clause context of standing,15 hope remains that she will be sensitive to religious liberty when free speech and free exercise rights are at stake. She may take counsel from the late Justice Brennan’s example. While sometimes overly strict in his Establishment Clause approach, he frequently championed a religion-friendly application of the Free Exercise, Free Speech, and Establishment Clauses.16
In another opportunity to learn more about Justice Kagan’s views, the Court will consider a petition for certiorari to review the recent Ninth Circuit decision in Alpha Delta Chi-Delta Chapter v. Reed.17 There the Ninth Circuit acknowledged that in Martinez, the Supreme Court avoided the question whether a public university could apply a nondiscrimination policy to prohibit a religious group’s requirement that its leaders and members affirmitsreligiousbeliefs. Fourjusticeswouldhave decided the issue in favor of the religious groups and found that application of a nondiscrimination policy to restrict religious groups’ ability to choose their leaders violated the First Amendment. Only one justice, now retired Justice Stevens, stated that such a troubling application of a nondiscrimination policy was permissible. The remaining four justices explicitly stated they were not addressing that question.
Despite its acknowledgement that Martinez did not mandate its result, the Ninth Circuit went ahead to conclude that a public university could exclude religious groups from campus because they required their officers and members to agree with their religious beliefs. The case, however, was remanded to determine whether the policy had been applied to other student groups and not just religious groups.
Judge Ripple, sitting by designation from the Seventh Circuit, brilliantly elucidated the error of the majority’s reasoning when he wrote:
Most groups dedicated to forwarding the rights of a “protected” group are able to couch their membership requirements in terms of shared beliefs, as opposed to shared status . . . . Religious students, however, do not have this luxury—their shared beliefs coincide with their shared status. They cannot otherwise define themselves and not run afoul of the nondiscrimination policy... The Catholic Newman Center cannot restrict its leadership—those who organize and lead weekly worship services—to members in good standing of the Catholic Church without violating the policy. Groups whose main purpose is to engage in the exercise of religious freedoms do not possess the same means of accommodating the heavy hand of the State. The net result of this selective policy is therefore to marginalize in the life of the institution those activities, practices and discourses that are religiously based. While those who espouse other causes may control their membership and come together for mutual support, others, including those exercising one of our most fundamental liberties — the right to free exercise of one’s religion — cannot, at least on equal terms.18