The Ninth Circuit and Religious Discrimination by Religious Groups

Yesterday the United States Court of Appeals for the Ninth Circuit upheld the non-discrimination policy of San Diego State University which denies official campus status to any group that “discriminates 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.” From my perspective, this policy is laudable on its face (though I recognize that many on this site would be troubled by the inclusion of sexual orientation among the forbidden grounds of discrimination). Groups with official status receive funding among other benefits and a state university need not subsidize discrimination.

The problem with yesterday’s decision in Alpha Delta Chi-Delta Chapter v. Reed is that the Court upheld the application of this policy to a religious organization that discriminated on the basis of religion. At the same time, San Diego permits secular groups to confine their membership to those who agree with their ideology such as the Republicans, the Democrats, and the  Socialists.  Even the Hispanic Business Students Association confines membership to those who support its goals and objectives. These groups are permitted to exclude those who do not support their ideology because their exclusions are not based on any of the forbidden grounds such as race or religion.

To be sure, it is ordinarily problematic for an organization to discriminate on the basis of religion. If the Sierra Club were to exclude Catholics or Jews or Muslims, it would be an outrage. But there is nothing outrageous about a religious organization confining its membership to those who agree with its ideology any more than it is problematic for the Young Democrats to do so.

In response to this, the Ninth Circuit argues that the liberty of the religious organization is not denied. It may still participate on campus without official recognition. But the problem is the inequality in application of the policy. In response to this point, the Circuit says that this inequality was not part of the purpose of the policy. Perhaps so, but that is beside the point. The effect of applying the policy in this way should have been regarded as constitutionally unreasonable.

Without question, this issue is on its way to the Supreme Court. Its fate there is uncertain. The closest case to it is CLS v. Martinez. There a divided Court upheld a policy of the Hastings Law School giving official status only to those student groups that were open to all students. In that context, the inequality I have been discussing did not exist. The Ninth Circuit recognized that its ruling was not dictated by Martinez.  I predict that the Ninth Circuit will be reversed 5-4, but I am not prepared to back this shaky prediction with a bet of any kind. Nonetheless, Roberts, C.J., Scalia, Thomas, and Alto, JJ., are certain to vote for reversal if the case gets there. No one in Martinez joined Stevens, J., concurring opinion in which he approved of using a non-discrimination policy involving religion against a religious group. Kennedy is a possible vote to join his usual bloc of voters and one of the liberals could join as well (though to say the least liberals are divided on this issue).

crossposted at religiousleftlaw.com