The case is Alpha Delta Chi-Delta Chapter v. Reed (9th Cir. Aug. 2); the opinion basically agrees with Justice Stevens’s concurrence in Christian Legal Society v. Martinez, which took the same view. The Christian Legal Society majority held only that a policy that recognized groups must take all comers — with some modest exceptions — is constitutional. But the logic of that opinion does suggest that policies which simply require groups not to discriminate based on race, religion, sex, sexual orientation, and so on would likewise be constitutional, if they are applied evenhandedly to all groups.
The court did note, though, that such a policy may not be applied in a deliberately discriminatory way:
In this case, Plaintiffs also offer evidence that San Diego State has granted official recognition to some religious student groups even though those groups, like Plaintiffs, restrict membership or eligibility to hold office based on religious belief. For example, the Catholic Newman Center’s application for official recognition by San Diego State provides that its officers must be “members, in good standing, with the Catholic Church.” Further, some non-religious but officially recognized groups appear to discriminate on prohibited grounds, in contravention of the policy. For instance, the African Student Drama Association’s constitution limits its leadership positions to students from Africa.
[T]he evidence that some student groups have been granted an exemption from the nondiscrimination policy raises a triable issue of fact. We note that Plaintiffs’ characterization of the evidence may not be correct. For example, 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. But as it stands now, the record does not adequately explain why some official student groups at San Diego State appear to have membership requirements that violate the school’s nondiscrimination policy. We therefore reverse in part the district court’s grant of summary judgment in favor of Defendants on Plaintiffs’ free speech and expressive association claims. We remand for consideration of the question whether San Diego State has (1) exempted certain student groups from the nondiscrimination policy; and (2) declined to grant Plaintiffs such an exemption because of Plaintiffs’ religious viewpoint.
The court’s decision strikes me as correct, for reasons given in my Freedom of Expressive Association and Government Subsidies, 58 Stanford Law Review 1919 (2006). Judge Ripple’s concurrence did point out that bans on religious discrimination by student groups do pose special problems for such groups that aren’t shared by nonreligious groups:
[The University] has required that organizations not discriminate in membership or leadership on specified grounds: “race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition.” Under this policy, most clubs can limit their membership to those who share a common purpose or view: Vegan students, who believe that the institution is not accommodating adequately their dietary preferences, may form a student group restricted to vegans and, under the policy, gain official recognition. Clubs whose memberships are defined by issues involving “protected” categories, however, are required to welcome into their ranks and leadership those who do not share the group’s perspective: Homosexual students, who have suffered discrimination or ostracism, may not both limit their membership to homosexuals and enjoy the benefits of official recognition. The policy dilutes the ability of students who fall into “protected” categories to band together for mutual support and discourse.
For many groups, the intrusive burden established by this requirement can be assuaged partially by defining the group or membership to include those who, although they do not share the dominant, immutable characteristic, otherwise sympathize with the group’s views. 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. Opponents of violence against women could limit their membership to all individuals dedicated to eradicating physical, mental or emotional abuse against female domestic partners. A gay, lesbian and transgender students group could limit their membership to all individuals dedicated to achieving equal political and social recognition of gay, lesbian and transgender persons.
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. See Truth, 542 F.3d at 645 [an earlier Ninth Circuit precedent] (“Even assuming that non-Christians would be able to comply with Truth’s view of ‘Christian character, Christian speech, Christian behavior and Christian conduct,’ we hold that the requirement that members possess a ‘true desire to ... grow in a relationship with Jesus Christ’ inherently excludes non-Christians.”). 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.
I agree that this is a good policy argument against such broad antidiscrimination policies. But I don’t think that this argument suffices to make such policies unconstitutional, where the policies simply limit access to certain government-provided benefits. (Judge Ripple, I think, was arguing that the policies were unconstitutional, and concurred only because he acknowledged that Ninth Circuit precedent was against him on this point.)
As I’ve argued before, both in my article and earlier blog posts, the disparate impact of the no-religious-discrimination condition — it has the effect of burdening religious groups much more than it burdens nonreligious groups — isn’t enough to make a facially content-neutral rule into something that’s based on the targets’ viewpoint (or even based on the content of their speech). The test for content discrimination is whether a rule is justified with reference to the content of the speaker’s speech. A no-religious-discrimination condition is likely not justified by the content of the groups’ speech. Rather, it’s justified by a judgment that discrimination against prospective group members based on their religions is less proper than discrimination based on their other ideologies.
I think that judgment is not persuasive as a moral or practical matter, when applied to religious groups. But it’s a judgment that universities can reasonably make, and that is familiar from antidiscrimination law more broadly, since antidiscrimination law likewise bans discrimination based on targets’ religion and not discrimination based on targets’ other ideologies. And the judgment is not based on the content of speech, or on the viewpoint of speech, or on the religiosity of the regulated groups’ practice: It focuses on the prospective members’ beliefs, not on the regulated groups’ speech or beliefs.
Now of course the university rule, while applicable to groups without regard to their content or viewpoints, does single out a certain kind of exercise of freedom of association rights, and deny it funding. But in the absence of discrimination based on a speaker’s viewpoint, the selective denial of funding to the exercise of certain constitutional rights is permissible (see this post): The government may fund many medical procedures but not abortion, may give tax exemptions for donations that go to many kinds of speech but not electioneering, and so on.
That the government may not ban an activity doesn’t mean that it has to include it in its subsidy programs. It just can’t discriminate based on speakers’ viewpoint in awarding subsidies; and, as I argue above, the nondiscrimination rules (if evenhandedly applied) don’t discriminate based on speakers’ viewpoint, or even on their speech.