In discussing a legal case involving the University of North Carolina and their refusal to fund a Christian fraternity (the university later reversed themselves) the other day, Reed Cartwright asked a reasonable question:
I don't see how this is any different than the city of Berekely refusing to subsidise the Boy Scouts because they discriminate. It seems to me that there exists pretty clear precident that allows government entities to not provide freebies to discrimatory organizations. That is why I am confused that UNC thought that it was going to lose.
I didn't have time then to fully address this, but it's actually started quite an interesting exchange of views between myself and several con law scholars. First, let me give a rundown of various precedents in this area and what they say. Then I'll give some analysis of how courts and scholars have tried to draw distinctions between them. I frankly don't know where I stand at this point personally. My immediate reaction was that I thought both the Sea Scouts case and the North Carolina case were decided correctly, but now I'm not so sure.
The issue involves this question: can the government deny a generally applicable benefit or subsidy to religious groups because they engage in discrimination in terms of membership or the election of their officers? It's important to distinguish this from a special benefit, such as the one involving the Pentagon's support for the Boy Scout Jamboree that is being challenged in court right now. That is a special benefit, not available to any other group. But here we are talking about a generally available benefit or subsidy such as a university providing nominal funding and/or access to student groups.
I recently discussed the Sea Scouts case, where the California Supreme Court ruled that the city of Berkeley could lawfully deny a benefit to the Sea Scouts because they engage in discrimination. The city had a policy of giving a free marina slip to non-profit groups at the city marina, but they refused to give one to the Sea Scouts because, as a Boy Scout affiliate, they refuse to allow gays or atheists to either join or be leaders.
But contrast that with the recent North Carolina case, where a judge issued an injunction against the university over a school policy that denied funding and recognition from any student groups that engaged in discrimination. The Christian fraternity argued that they can't reasonably be expected to allow non-Christians into a Christian organization, and that to deny funding to them that is given to non-religious groups is a violation of their right to expressive association (a right upheld in Dale, which gave the Boy Scouts the right to discriminate, as a private group).
Now, it would be easy to say "different courts, different results", but there's a much more interesting dynamic going on if you start to dig a little deeper and I think it illuminates the kinds of distinctions that judges must make every day. And this is a reason why constitutional law can be equal parts fascinating and frustrating. Before I start in to some analysis of these cases and the issues, I want to thank Eugene Volokh and Dan Ray for helping me understand the precedents.
In particular, I want to thank Prof. Volokh for sending me a link to this forthcoming article on this very subject, which will be published in the Stanford Law Review shortly. In it, he takes the surprising position (surprising to me at least) that the government may discriminate against groups which engage in discrimination, even religious groups and even when it only involves the election of their own officers or membership, in the application of a generally applicable benefit. But first, let's take a look at some of the major Supreme Court precedents on the subject.
The first two that came to mind when Reed's comment was posted were Lamb's Chapel and Rosenberger, but Lamb's Chapel doesn't really apply here because it doesn't involve subsidy. The court ruled that if a public agency provides access to outside groups to use or rent the facilities they could not discriminate on the basis of religion and refuse to rent to religious groups. Rosenberger, on the other hand, was much closer.
In Rosenberger, a Christian group at the University of Virginia challenged a rule that denied funding for the printing of its group newsletter while providing funding for other student groups to do the same. The school's Student Activities Fund provided money for such printing to all recognized student groups, but they denied funding to one student group because they were religious. Both the district court and the 4th circuit Court of Appeals ruled in favor of the university, but the Supreme Court overturned those decisions and found for the plaintiffs in a 5-4 decision.
And this is where we run into something interesting when it comes to constitutional law and how to analyze precedents. At first blush, this appears to be strongly on point for the North Carolina case - it's a generally applicable benefit at a university that is provided for all student groups but denied to religious groups. The court ruled that this was unacceptable in Rosenberger, so it should be unacceptable here too, right? Well, not quite.
As my friend Dan Ray teaches his con law classes every term, you must analyze each case by considering the three F's - the facts, the forum and the framing. The facts of the cases are strongly similar. The fora are also strongly similar, both in the 4th circuit federal court. But the question of how the case was framed is where the difference comes in. How a case is framed - that is, the legal basis for the arguments made, especially by the plaintiffs - can have an enormous effect on the outcome of a case. Most cases could be argued on the basis of multiple grounds and the attorneys have to decide which ones are the ones most likely to win. There are lots of cases one can point to where it can reasonably be argued that if the attorneys had chosen a different basis for their argument, they might well have won rather than lost.
In Rosenberger, the religious student group framed the case primarily as a free speech issue, arguing that the government had established a limited public forum by funding the newsletters of student organizations, but they were denying access to that forum to religious groups. The university, on the other hand, framed it primarily as an establishment clause issue, arguing that if they funded the production of a religious newsletter, it would be tantamount to an establishment of religion. Thus, they argued, the constitution demands such a limitation and they had no choice. The court, rightly in my view, rejected that argument.
Now, what would have happened if the student group had framed the case not as a free speech issue, but as a right to expressive association issue? And what if the university had argued not on the basis of the establishment clause, but on the basis of the government's right not to fund a group that discriminates? Well, we can't know for sure. But the case may well have turned out differently. That's why framing is so important.
There are many precedents that have said that the government can deny even a generally applicable benefit to religious groups or to groups who discriminate. In Locke v Davey, for example, the court upheld a Washington state law that denied students the right to use a generally applicable Promise scholarship (awarded to all students in the state who qualified) to get a degree that is "devotional" in nature. The student wanted to use the scholarship to get a degree in pastoral ministries, but the state refused to allow that usage of the scholarship. Interestingly, the student ultimately changed his mind and is now at Harvard Law School (and was a blogger, for a time). Another interesting thing about this decision was that it was written by Rehnquist, but Scalia and Thomas dissented. It was an unusual majority opinion, with Rehnquist joining all of the liberals and moderates on the court and the other two conservatives in dissent.
And as Volokh notes, Rehnquist and O'Connor were both the primary advocates of what he calls the No Duty to Subsidize principle, the idea that the government need not subsidize the exercise of one's constitutional rights. Yes, you have the right to go to divinity school, but the government does not have to pay for it. And yes, you have the right to form a private association that restricts membership on the basis of sex, race, religion, sexual orientation, or what have you, but again, the government does not have to subsidize that group.
We've been discussing this on the religion law listserv this weekend, however, and some have raised what seem to me to be compelling difficulties in Prof. Volokh's analysis. For instance, Daniel Bort asked him about the cases of Lamb's Chapel and Good News Club, both of which ruled that the government could not deny access to public facilities on the basis of religion:
Are you saying that the school districts in Lamb's Chapel and Good News Club could have lawfully sustained their desire not to rent school premises in off hours to religious organizations if, instead of saying "we will not rent to religious organizations," they had simply established a rule that they would not rent to any organization that dicriminated on the basis of religion in the selection of its leaders?
This is an excellent question, and Prof. Volokh's answer caught me very much by surprise:
I think the answer turns out to be yes, surprising as it might appear. Recall that these were designated public fora (at best) -- government property that the government had no obligation to turn over to any speakers. If the government opens the property to private speakers, then it may not discriminate in viewpoint-based ways (or in content-based ways, except when the content-based ways are necessary to enforce the government-defined limits of the forum).
But the government may choose to open its property, I think, only to groups that make their programs -- and the programs' organizational committees -- open to people without regard to race, sex, sexual orientation, religion, and so on. That is a designation that's neutral as to the content of the group's speech, and as to the viewpoint of the group's speech. The government may not impose such a restriction as to speech on private property, or in traditional public fora. But when it opens its non-traditional-public-forum property, it's entitled to require that the groups that use it use it in nondiscriminatory ways.
I didn't find this terribly persuasive, but I couldn't really put my finger on why. Then Mark Scarberry of Pepperdine jumped in and articulated it well:
All expressive groups "discriminate" in a sense in choice of leaders based on consistency of the leaders' views with the groups' views. To say that groups that "discriminate" on the basis of religion in choice of leaders cannot use a forum but that groups that "discriminate" on other ideological bases in selection of leaders (e.g., on basis of belief in environmentalism) may use the forum is in fact to discriminate against religion. The use of
the term "discriminate" to describe a religious group's decision to choose leaders who reflect the group's views is quite unfortunate, at least if we choose to extend to such choices the connotations of the word as it is used
with respect to racial discrimination and other invidious forms of discrimination. It is only those connotations that provide the seeming justification of the state's discrimination.Of course the state's discrimination against religion should raise constitutional red flags that are not raised by a private group's choice of leaders, and thus in effect we have constitutional values being trumped by
nonconstitutional values. Worse than that, we have nonconstitutional values (the desire to stigmatize religious "discrimination" in religious groups' choice of leaders) that trump not only the constitutional value of government viewpoint neutrality in public forums but also the constitutional value of freedom of religion. Freedom of religion requires that religious groups be able freely to choose leaders on religious grounds, without being penalized by the government for doing so.
This strikes me as a very persuasive argument. I have to confess, though, that it's a bit unusual for me to disagree with Prof. Volokh on a first amendment issue and agree with Prof. Scarberry on one. But here I must. I don't think we should view a religious group's right to discriminate on the basis of religion in choosing their leaders as being any different than any other group that "discriminates" in choosing their leaders based on their ideological position.
A feminist student group is obviously going to elect officers and allow members who agree with their position and no one blinks at that or suggests that the government should not fund any such groups because they "discriminate". Likewise an environmental group, a humanist group or virtually any other. The fact that a religious group restricts its membership and leadership to those who share their religious views is no different. To treat it differently is to engage in precisely the sort of viewpoint discrimination that Volokh objects to, even if not as pointedly as he might demand in order to condemn it.
I don't think such ideological questions should be considered discrimination in the same sense that we condemn discrimination. No one would demand that the NAACP hire racists; why should anyone demand that a Christian church hire an atheist or a Muslim? Rehnquist would no doubt respond that it's not a question of what a group may do, but what the government may choose to subsidize. But I would argue that if you are denying a generally applicable benefit on the basis of such a flimsy and ubiquitous type of "discrimination" - one that all private groups engage in - but only to one type of group that does so, you may well run into an equal protection problem.
There's much more that could be said on this subject, of course. There are lots of hypotheticals one could come up with, and lots of different ways to look at it depending on how the issue is framed. My own thinking is still a bit muddled on the subject. As a general rule, I think that Rosenberger was rightly decided, Locke wrongly decided, but the Sea Scouts case also rightly decided. Is there some tension between those? Possibly, depending on how the issue is framed in each case. But that is the sort of tension that is present almost inevitably in this sort of constitutional analysis. I'd be interested in hearing the views of others.
Update: By the way, here's a link to yet another conflicting case going on right now. The Hastings College of Law (Sandefur's alma mater, I believe) refuses to recognize the Christian Legal Society, which filed suit in Federal court. The district court ruled for the university and now the CLS is appealing to the 9th Circuit Court of Appeals. So total opposite result from the North Carolina case.
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There are some differences between many religous organizations and most other non-profits: the requirement of a statmement of faith or loyalty oath. I think that a Christian organization that didn't require members or leaders to agree to a specific statement of faith would satisify non-discrimination requirements. (Of course that doesn't mean that they'd ever elect an atheist to any position of power.)
I'd also carefully apply the UNC case to other cases because it was mooted before trial and the Court appears to have issued its only opinion about discrimination in the injunction. I wonder if the distinction between "status" and "belief" will catch on.
I should also point out that it appears that there is a movement amongst Christian clubs that had previously agreed to not discriminate to descide that they can't follow non-discrimiation policies anymore. I think they are doing it solely to sue and overturn non-discrimination policies.
This post is interesting to me because I'm a Boy Scout from way back. Made it all the way to Eagle Scout and was very active in the organization throughout my childhood. I haven't been so active since I started college (pursuing a PhD in evolutionary biology now).
It is interesting to note that I spent my formative years in Saudi Arabia (my parents worked there), and that Boy Scouts was one of the shaping sources of my idea of what it was to be an American. When I returned home, there was a great deal of cognitive dissonance to overcome when I found out that ideal of America wasn't quite true. But, such realizations characterize everyone's road to maturity. It was only late in my association with the Boy Scouts that the ideas of discrimination began to show up on my radar.
My best friend was in Boy Scouts before he moved to my state in high school, but he was kicked out right before he gained the rank of Eagle because he confessed to being an atheist. In my organization, no one ever asked me what my religious views were, and back then they were a vague, teenage deist-esque melange. Truth be told, I didn't really have a concrete spiritual set of beliefs. Needless to say, my friend's poor treatment at the hands of the organization I was a part of and which had taught me so much about American ideals outraged me.
I'm still trying to figure out how I feel about the Boy Scouts now that I'm an adult. I value my time in the organization greatly and my understanding of American values, history, and law (which I think is at least better than most average citizens) is in no small part thanks to the Scouts. The fact is that the subset of troops I spent my time with weren't overtly religious or draconic in their harassing of gays or atheists. Religion rarely, if ever, came up. It was mostly learning about camping and hiking, with an occasional history or law lesson thrown in. However, my best friends' story proves that there are subsets of the organization that do operate on a contemptable level.
So far, I've sort of settled on the position that the Scouts are a huge organization that has a few (IMO) out-of-date and un-American rules, but that those things will fix themselves over time. I tend to give them a pass, legally, because they're a private organization and can do whatever they want, even if I disagree with it. I also happen to know that there's a growing block within Scouting that wants to see these rules change because I still have many friends who are now leaders in the Scouts. But, honestly, I don't have any real answer when someone asks me if Scouts should be denied any and all benefits from the government. I can certainly see a case to be made for that, but I'm also convinced that it's an organization that, on the whole, does great things for a great many kids and promotes most (though, admittedly, not all) American values.
I'm clearly conflicted about this subject. Since you're obviously well-read on this subject (Ed and Reed), I'd appreciate it if you could point me towards any resources that discuss these conflicts (the legality of Boy Scout policy and its interplay with governments). Thanks.
I think that a Christian organization that didn't require members or leaders to agree to a specific statement of faith would satisify non-discrimination requirements.
The problem there is that you don't move past the idea of shared views. Personaly I find no difference between being required to allow an atheist to lead a Christian group I might be involved with or having a leader who expoused certain Christian dogma.
Frame it from an environmentalist standpoint. If you are in an organization that believes strongly in fighting global warming should you be required to allow someone to become leader who doesn't believe in global warming, even if he is an ardent recycler who also actively fights for clean water? Obviously his views are contrary to that of the orginazation in an irreconcilable fashion but he is also quite obviously an environmentalist.
Ultimately I believe there is a very fine line involved here. It is virtualy impossible to set one standard that will reign supreme over all, this is why I think we have a great legal system when it comes to these situations. I also think that cases like this with fine nuance effecting the outcome is why some people truly love being part of the legal proffesion.
That said I do believe way to many people make ridiculous claims of discrimination. I have been trying to put together a single dads group, I want to use ne of the local community centers to host it and have had soem problems because they are afraid of potential discrimination issues. I know my church will let me do it but I am hoping to set up the group in a manner that will leave religion out of the picture. The whole point of the group is to create a forum for single dads to work together to be better parents - why the bloody hell should we not be allowed to restrict membership to single dads?
Treban, I think I side with you in this issue. But, to play the devil's advocate, why couldn't you meet at members' private homes, or the meeting room of a local restaurant? As Ed pointed out, it has been argued that the government has no duty to subsidize discrimanatory behavior, but you also have private avenues to pursue for your meetings.
The problem, of course, is that there are no doubt other organizations who "discriminate" in their leadership that have access to the same government fascilities you want access to. I dunno, I certainly wouldn't have a problem with it, but I don't have the keys to those fascilities.
Any and every grouping / assembly of human beings forms around some set of ideals and goals (the Charter), with membership being conditional upon some level of conformity to the charter, and wherein the natural leaders are those whose conformity is the greatest. Speaking optimistically, that is. From this point of view, if there is any public money at all for any private group activity, then it has to be available to all groups (at least, those that are performing according to their charter) regardless of their ideals and goals.
So it seems to me that the only basis for witholding such public funds has to be when some aspect of the charter can be shown to be functionally irrelevant yet used to qualify participation, and in such a way as to conflict with other anti-discrimination law.
Religious groups can legitimately refuse participation to people who do not subscribe to their charter, because they could successfully clain admitting such people would materially negatively impact their achievemtn of their goals.
But in the case of the Boy Scouts, and as a past BS myself, sexual orientation and religious preference are in practice irrelevant to the goal (as I understood it then) of becoming a competent, useful, and compassionate human being even in the face of adversity.
Yes, the local troups were typically associated with a church of one denomination or another, but that was because only churchy folk were in the habit of organizing along character-building lines whilst not being military.
And I'm sure the usual 5% or so were gay. Never mentioned in official teachings. Although, come to think of it, that may have been because the BS do have a clause about criminals, and back then it was illegal to be gay in the UK.
Baka wrote:
Well, there is only one Supreme Court precedent, Boy Scouts of America v Dale (2000). That case ruled that the BSA is a private organization with a right to expressive association that encompasses their right to choose their own leaders and rules for membership. But that decision triggered some consequences that the Scouts don't like at all - yes, they have a right to discriminate, but that also means that many states and localities have laws against any aid or subsidy to them, including use of public facilities. The two cases involving them so far are the Sea Scouts case I mentioned above from California, which ruled that the city of Berkeley was within their rights to refuse a free slip at the marina to them because they discriminate. The other is the ongoing case of Rumsfeld v Winkler, which is currently being argued in the 7th circuit court of appeals. That involves Federal funding of the Boy Scout Jamboree, funding that is mandated by a Congressional act. The district court ruled against the Boy Scouts and the appeal is now pending.
My gut feeling about this seems to be in line with most people here: if it is discriminatory or not is dependent on if the selection is functional from the point of view of the organisation.
So requiring members of a christian association to be, well, christian is functional since that is part and parcel of the aims of the group. There's been a simmering debate in sweden about priests that confess to be nonbelievers; it would probably be well within the law to refuse new priests employment on that basis since they can't do their main job in a credible fashion. It is somewhat akin to fighter pilot candidates needing good eyesight and a maximum height. Since it's arguably needed by the job, it's not discrimination.
Asking Boy Scout members not to be gay is different; nothing in their activities requires a particular sexual orientation (the idea from some people that it does is vaguely troubling, actually; the only reason it matters is that these people are thinking of interactions with boy scout members in terms of sex).
Had it not been the Boy Scouts, but the Manly Heterosexual Support Hotline, you'd probably be able to argue that a heterosexual orientation was a valid part of the job requirement, while disqualifying a hotline candidate due to their inability to make a fire by rubbing two boy scouts together would be discriminatory.
The question of whether the form of discrimination being practiced is tied to the function of the group may be an interesting one, but legally it doesn't really matter much. The courts have already ruled, and I believe rightly so, that private groups a right of association, and that right is not function-dependent. You or I can form a private club of whatever type - golf club, book report group, poker group - and decide to keep out redheaded people, short people, religious people, or whatever we like. The only relevant question here is government subsidy and whether a generally available benefit can be denied to groups because of this.
I have two opinions on this:
#1) The government shouldn't be funding any fraternity. Why are we wasting money by giving it to clubs? Clubs made up of the most financially stable nonetheless. At a time when we are cutting benefits from social security, cutting medicaid, etc. People who want to form clubs should spend their own money to do so.
#2) Knowing that #1 is a nutball position that will never happen, I do find this a somewhat difficult issue to solve. But I don't find Scarberry's argument convincing at all. The establishment clause says that the government can not endorse religion. It doesn't say that it can not endorse any ideological positions. The government can and does endorse particular positions all the time. The government can endorse environmentalism or feminism or capitalism, and depending on the administration we see this happening.
I think I would probably take a "back of the line" position on this. Provided that there is enough money to go around anyways, the government can give subsidies for sectarian religious groups. But i reserve the right to change my mind.
You have to be careful that you are not betrayed by language. Organizations don't "believe" anything. Organizations are made of of people who have some beliefs, values and interests in common. There's nothing wrong with this.
That's not to say that most organizations are monolithic in their ideology. I belonged to an environmental group while in university and membership was not contingent on subscription to any set of propositions. In fact, we were "invaded" by a group of young republicans who thought that they could disrupt the group by joining and voting against whatever the group had planned to do. They didn't realize that the group was run on consensus and the appearance of significant resistance didn't actually change anything. Events which had been planned went on because there was no consensus to stop them. The campus recycling program continued and we even got the YRs to show up and help empty the paper and can bins. The group didn't enforce conformity with values. No one was expelled for suggesting we were doing the wrong things with our time. The YRs eventually gave up out of frustration with dealing with an organization run by consensus instead of by up and down votes.
Most organizations don't have the means, structure or inclanation to expel members who disagree with one or more of the organization's shared beliefs. Many religous organizations, OTOH, do have the means, structure and inclination to expel members who challange the group's orthodoxy.
There's a difference between active discrimination and the natural tendancy to choose people with whom you share some values in common to join you in an organization.
Ed, I was not thinking specifically of the US (indeed, my limited knowledge of matters legal pertain mostly to Sweden). And I believe that in employment situations, Swedish law does do something like what I described, detemining if there is an objective cause for the discrimination and allowing it in those instances.
And I do know that for clubs and associations that receive public aid (where the aid may simply be to borrow a meeting room at a public hall once a week) the restrictions are stricter than what seems to be the case in the US if I understand you right. A feminist study circle can't bar a male from joining unless they state as a goal to make it a space for women to meet without patriarchical oppression or somesuch (in which case the study circle is of course evaluated in terms of its applicability to aid from that perspective instead).
Ed, I was not thinking specifically of the US (indeed, my limited knowledge of matters legal pertain mostly to Sweden). And I believe that in employment situations as well as publicly financed activities, Swedish law does do something like what I described, detemining if there is an objective cause for the discrimination and allowing it in those instances.
My post was mostly about why I thought we do feel differently about those two cases; it was not an attempt to recast existing law anything.
Matthew wrote:
In most such cases, the funding we're talking about comes through universities. Most universities have programs for official student clubs that includes a small stipend per semester that allows the club to print flyers and so forth. It's usually paid for out of student fees charged each term. So it really doesn't have anything to do with the Federal budget.
But this really has nothing to do with endorsement. With such a generally applicable benefit, there is no endorsement. A stipend for student clubs can't possibly be considered an endorsement for the obvious reason that it funds, for example, both College Democrats and College Republicans, chapters of which exist on virtually every campus. Because any student group can take advantage of the opportunity, it can include a Christian group, a Muslim group, a humanist group, an objectivist group, and so forth. That's why UVA lost in Rosenberger when it tried to argue that the establishment clause mandated their position; it doesn't do any such thing.
On a broader level, there is no getting around the fact that a generally applicable benefit may be used, at the discretion of the person who gets the benefit, for a religious purpose. Someone who gets food stamps, for example, can spend it on the makings of a passover meal. That's also why the court ruled in Zelman that a school voucher program that gives money to the parents to decide where they want to send their kids to school is not an establishment clause violation, because a generally available benefit that leaves the choice up to the parents and that allows a full range of religious and non-religious options is neither establishment nor endorsement.