David French, with whom I’ve been having a very enjoyable discussion about this case, posts further on the subject:
I want to focus my response on one item [from Volokh's previous post] — a point that I believe to be absolutely critical not just to the legal analysis but also the equities of the case. In response to my question, “What conceivable state interest exists in requiring open membership by expressive organizations?” Professor Volokh writes:
The answer, I think, is a variant of what President Kennedy set forth as a justification for Title VI of the Civil Rights Act of 1964: the desire that “public funds, to which all taxpayers of all races contribute, not be spent in any fashion which ... subsidizes ... racial discrimination,” or, adapting it here, the desire that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion which subsidizes religious or sexual orientation discrimination. This too is a justification that is independent of the content of speech, a content-neutral rule that, to be sure, isn’t aimed at preventing disruption, but is aimed at preserving the funds for the purposes for which they were set aside. (And, let me mention again, Healy expressly stressed that the case did not involve rules such as that “Applicants must limit membership to ‘matriculated students’ and may not discriminate on the basis of race, religion or nationality.”)
But isn’t Title VI aimed squarely at invidious discrimination? By its terms it’s limited to the identity-based categories of race, color, and national origin. Is it invidious discrimination for expressive organizations to ask that their members and officers agree with the group’s mission and conduct themselves accordingly? I think it’s a mistake to equate such commonsense, mission-based “discrimination” with invidious racial discrimination. Of course, that doesn’t mean the individuals don’t get their feelings hurt when they’re excluded from organizations, but that doesn’t provide a pretext for state action.
One of my favorite examples of these kinds of real-world controversies is an old one from a private school, Central College in Iowa. There, a Christian group asked their president to step down after he “came out of the closet” and stated that he not only didn’t agree with the organization’s beliefs regarding sexual morality; he also didn’t even consider himself a Christian (I advised the Christian group in the case). The student was enraged when he was asked to step down, but — honestly — did he have a reasonable expectation that he should be permitted to lead? Is it invidious discrimination for a Christian student group to ask that its leaders be Christian?
As an aside, while the current debate is centered around the ability of groups to exclude based on sexual-conduct rules and beliefs regarding sexual conduct, not all religious disputes deal with sex. Under the Ninth Circuit’s ruling in Martinez, the university would find itself in the middle of discrimination complaints based on the finer points of theology, if — to take from a real-world example — a student group had a dispute over the doctrine of justification. Or what if a student group wanted to expel a malicious Fred Phelps-type pseudo-religious lunatic? Is it really the role of the university to step in and tell CLS that they have to keep such malignant individuals in their midst?
Even further, where is the state interest in forced inclusion when excluded individuals have the right to form competing student groups, seek student-fee funding, and gain access to facilities? In other words, they have the right to confront what they perceive to be bad speech with their own, better speech?
Regardless of the framework for deciding Martinez — whether it’s the Seventh Circuit’s Healy-based associational analysis, the Ninth Circuit’s forum analysis, or something else entirely — the question of state interest will come up. And at that point, CLS can rely not just on common sense, but on a long line of Supreme Court precedent acknowledging (and protecting) the right of private organizations to form around shared beliefs and to enforce rules that protect the integrity of their message.
The bottom line? There’s a qualitative legal and moral distinction between invidious racial discrimination and a religious group’s asking that its members share the groups’ religious beliefs. I believe (and hope) the Supreme Court will see (and recognize) that distinction.
It seems to me that Title VI wasn’t limited to “invidious” discrimination in the sense of discrimination motivated by hatred, hostility, or a desire to harm. An Armenian-American organization, for instance, that only benefits Armenian-Americans — not because its managers dislike others but because they feel a special concern for the welfare of their own group — would be covered. It may well be that, especially in 1964, most instances of race, color, and national origin discrimination were motivated by hostility; but certainly not all were, yet the law covered discrimination generally, without any special inquiry into its motivation. (This was in some measure modified by Bakke‘s interpretation of Title VI in 1978, but even after that proof of hostility is not required for Title VI to apply.) Likewise, Title IX’s extension of Title VI principles to many forms of sex discrimination applies to discrimination that isn’t motivated by hatred, hostility, or a desire to harm.
Likewise, it seems to me that there is an eminently conceivable, and legitimate, state interest in denying government funds to groups that discriminate based on religion, sexual orientation, and such, even when the discrimination is “commonsense” and “mission-based.” It is reasonable and legitimate for the state to say that public funds, to which taxpayers and students of all religions and sexual orientations contribute, not be spent in any fashion — even noninvidious fashion — which subsidizes religious or sexual orientation discrimination. And this is so even though some of the applications of this prohibition would apply to discrimination that isn’t motivated by hatred, hostility, or a desire to harm, but is itself commonsense and mission-based. The government may choose not to subsidize the exercise of the right to discriminatory expressive association, even when the discrimination is perfectly well-motivated, just as the government may choose not to subsidize electioneering or substantial amounts of lobbying, even though such electioneering or lobbying may be perfectly well-motivated.
As I’ve said before, I think the decision to completely exclude groups that discriminate from subsidies is unwise, for some of the very reasons that Mr. French gives. I think universities should allow university-funded groups to discriminate in ways that further their missions, especially based on religion (which as an ideology is especially important to maintaining certain groups’ mission) but also based on sexual orientation, race, sex, and the like. Allowing this would likely actually enhance the options available to students, and enhance the intellectual diversity of the marketplace of ideas in universities. But that I would make a certain choice doesn’t make the alternative choice on the university’s part inconceivable or illegitimate.
Finally, if one is using the broader definition of “invidious” to mean “offensive” or “objectionable,” the result is the same: A state may reasonably take the view that it’s offensive or objectionable for public funds, to which taxpayers and students of all religions and sexual orientations contribute, to be spent in any fashion which subsidizes religious or sexual orientation discrimination, even though Mr. French and I might not see it as offensive or objectionable (for instance for the reasons that Mr. French gives.