The Ninth Circuit issued a disappointing decision yesterday against a Christian fraternity and sorority at San Diego State. The University allows campus organizations that it officially recognizes to exclude students who disagree with the message advocated by the group, unless the groups are religious. San Diego State views it as "religious discrimination," in violation of the campus nondiscrimination policy, when a Christian group requires its officers or members to believe in Christianity. So that means the vegan club can exclude student deer hunters and those who advocate eating steaks at Morton's, but the Christian groups must permit Buddhists and atheists to join.
In this case, the university denied a Christian fraternity and sorority recognition because their constitutions stated that members and/or leaders must profess a specific religious belief. That has meant the groups cannot meet in campus buildings for free, cannot set up tables in the main mall where students walk each day, etc. The Christian groups are in effect banished from the main avenues of communication with students and relegated to a second class status.
The 2-1 majority upheld the policy. Although the judges admitted that the policy as applied here treated the religious groups worse than non-religious student groups, it was constitutional because there is "no evidence that San Diego State implemented its nondiscrimination policy for the purpose of suppressing Plaintiffs' [the Christian groups'] viewpoint..." Slip opinion at 9996. Intent is irrelevant. The government cannot excuse its policy that violates a group's constitutional rights because "it didn't mean to do so."
There is some good news in the decision. The Ninth Circuit remanded the case to the trial court because we had raised sufficient evidence that San Diego State did not enforce its policy consistently across the board, and allowed other groups to exclude non-adherents, but not allowing the Christian fraternity and sorority to do so.
Judge Ripple, a visiting appeals court judge from Wisconsin, reluctantly agreed with the ruling because of precedent for the Ninth Circuit. But in his concurring opinion, he urged the Supreme Court to take the case, and rule strongly in favor of religious liberty:
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 support 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.
We are examining our options about returning to the trial court, or appealing the case to the U.S. Supreme Court.
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