Governor McDonnell should defend religious freedom on Virginia campuses

Robert Shibley Senior Vice President, FIRE
Font Size:

In 2010, the U.S. Supreme Court’s ill-informed ruling in Christian Legal Society v. Martinez called into question the right of student organizations at public universities to make decisions about membership and leadership by taking into account a student’s beliefs. The Court undermined America’s long tradition of ideological and religious pluralism by finding that so-called “all-comers” policies forbidding student groups from making belief-based decisions do not violate the First Amendment. The Virginia legislature has just sent a bill to Governor Bob McDonnell’s desk that would restore this right in the Old Dominion, thereby protecting students from the absurd results that the Martinez holding has made possible.

In the Martinez case, a chapter of the Christian Legal Society (CLS) student group sued the public Hastings College of the Law in San Francisco after the school told the group that it could not require that its leaders hold certain beliefs in order to be eligible to lead the group. In other words, Hastings decreed that student groups must consider “all comers” for membership and leadership, even if they do not agree with the group’s beliefs. The dispute was driven by the politics surrounding gay rights, as CLS wished to require its leaders to both believe in and practice chastity outside of heterosexual marriage. In a 5-4 decision, the Supreme Court found that Hastings’ “all comers” policy was viewpoint-neutral and reasonable in light of the purposes served by the student organization forum.

Unfortunately, this decision made possible a number of bad outcomes for student groups. A concern frequently voiced by religious or ideological (especially Christian) student organizations is that stripping them of the ability to make belief-based decisions will make them vulnerable to hostile takeovers of their groups. Because many religious groups represent a small minority of students on campus, removing the right to require that leaders actually ascribe to the beliefs of the group could create a nightmare situation: a large group of students who are ideologically opposed to the group could come in, join the group, vote itself in as the leadership, and then change or even disband the group. This is a risk not just for minority religious groups but also for other expressive groups on campus, including political groups, LGBT groups, and environmental groups. For instance, imagine the threat the College Republicans at UC Berkeley or the People for the Ethical Treatment of Animals club at Texas A&M might face in such a situation.

Supporters of all-comers policies claim that these hostile takeovers won’t take place, citing the supposed lack of historical evidence of such attempts. In fact, such attempts have occurred, although they appear to be rare. But here’s the problem with the “it won’t happen” argument: the very reason these takeovers are rare is because the groups most likely to be targeted — Christian groups like CLS, InterVarsity Christian Fellowship, the Navigators, etc. — have had leadership criteria in place that prevented this kind of attempt. These are exactly the rules that are now under attack in the wake of the Martinez decision. Only now are organizations like these being placed at the mercy of the reigning ideologies on their campuses.

Other all-comers advocates argue that such policies pose no dangers to minority religious groups — while simultaneously making it clear that their objective is to force those groups to change their beliefs. An example is the Tufts Coalition Against Religious Exclusion, whose goal is to block the Tufts Christian Fellowship from having belief-based requirements for its leaders. In an op-ed in the Tufts Daily, two Coalition members explain the group’s motives, making it clear that they support undermining the Fellowship’s core message: “Forcing leaders’ beliefs to stay static is stifling for both [a student group] and the campus community at large.”

The Coalition doesn’t seem to grasp that whether or not the core tenets of a faith should evolve over time is, in fact, a theological question on which many different religions and denominations differ. Ask a Catholic, a Protestant, a Jew, and a Muslim about whether “static” religious beliefs are “stifling,” and you may get very different answers. But the Tufts student activists simply declare a lack of doctrinal change “stifling,” as if that were self-apparent and not a subject of hundreds of years of theological debate. Further, it’s pretty ominous to hear someone suggest that a person or group’s private religious beliefs should be the concern of the “campus community at large” at a secular or state university.

Like many university regulations, all-comers policies also invite selective application. Vanderbilt University’s half-baked policy allows fraternities and sororities to go on making sex-based membership choices, while religious groups can’t even require leaders to be able to lead Bible studies or prayers. Yet Vanderbilt Provost Richard McCarty actually told religious students that Vanderbilt was doing them a favor by enforcing the policy because students shouldn’t let their religious views dictate their life decisions. Amazingly, McCarty was seemingly unaware that his edict is the polar opposite of what most religions teach. For the state or for a supposedly non-religious university like Vanderbilt to impose such a standard is galling.

All-comers supporters also claim that they are forwarding the cause of “diversity,” when they are in fact doing damage to the American tradition of pluralism. Part of the greatness of our country is the fact that religious groups at war with each other overseas manage to share streets or even buildings in America. Groups that hold irreconcilable ideas about God nevertheless cooperate in community institutions. Pluralism is religious toleration as Americans have traditionally practiced it, and it is the reason that no country can compare to the United States in its peaceful multiplicity of religious groups. Yet when Vanderbilt passed its modified all-comers policy, 13 religious groups, including ones associated with such exotic faiths as Catholicism and Lutheranism, determined that complying with the policy could not be reconciled with their religious beliefs. This looks a lot more like a power play (“believe what we say, or get out!”) than it does a movement to increase “diversity” on campus.

States are awakening to the dangers that “all-comers” policies pose. Ohio has already passed a law preventing its public universities from adopting such policies, and Tennessee is currently considering one. Governor McDonnell should sign this bill and act to safeguard the right of religious and political groups on campus to conduct themselves in accordance with the long tradition of American religious and political freedom.

Robert Shibley is the senior vice president of the Foundation for Individual Rights in Education (FIRE).