Sequence of Events

BLinC were approached by the gay student about possible leadership in the group. The student himself openly noted that this was an issue that might cause problems. BLinC indicated that he would be welcome to be a general member of the group, but that the executive were involved in leading prayer, Bible study and other spiritual input. These activities were meant to reflect the commitment to the Bible’s teaching that the group was set up to promote among business students. They indicated that it was not a matter of the “orientation” of the student, but his proposed behaviour, which was of concern. As Judge Rose noted (at p 5):

“Thompson {President of the club who had been approached} emphasized to the member that her decision was not because he was gay, but because he did not agree with BLinC’s biblically based views on sexual conduct.”

The gay student then complained to the University. After discussions the University asked BLinC to redraft their rules to indicate that they would comply with the University policy. The redrafted rules affirmed that that the club would not discriminate on the basis of status, but included as part of a “Statement of Faith” required of all office holders the following:

All Christians are under obligation to seek to follow the example of Christ in their own lives and in human society. In the spirit of Christ, Christians should oppose racism, every form of greed, selfishness, and vice, and all forms of sexual immorality, including pornography. We believe God’s intention for a sexual relationship is to be between a husband and a wife in the lifelong covenant of marriage. Every other sexual relationship beyond this is outside of God’s design and is not in keeping with God’s original plan for humanity. We believe that every person should embrace, not reject, their God-given sex. We should work to provide for the orphaned, the needy, the abused, the aged, the helpless, and the sick. We should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death.

This was held to be not acceptable, and the club was formally de-registered on Nov 16, 2017. They filed the application for a preliminary injunction on Dec 11, 2017, noting that there was need for urgency as spring recruitment fairs for student organisations were to be held on Jan 24, 2018, and their absence from this event would have an impact on their membership. With commendable alacrity, Judge Rose handed down her decision on 23 Jan, 2018.

Legal Reasoning

BLinC’s main complaint (and the one on which they succeeded for the moment) is that the University’s action was in breach of the Free Speech Clause of the First Amendment to the US Constitution. There was of course also a possible “Free Exercise” complaint under the religion clauses of the First Amendment, but in light of the Judge’s decision that an injunction was warranted under the Free Speech clause, she did not consider the Free Exercise arguments. The Free Speech argument is as follows: the University had created what is called a “limited public forum” to allow expression of various viewpoints by student clubs. In doing so it cannot discriminate against those clubs on the basis of the content of the views they put forward. Previous decisions of the US Supreme Court have held that a University cannot deny access to facilities to a Christian group if it allows those facilities to be used by groups expressing other points of view- for example, Widmar v. Vincent, 454 U.S. 263, 265 (1981); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995). In response to this argument, the University referred to the more recent decision of the US Supreme Court in Christian Legal Soc. Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661 (2010) (Martinez). This decision at first seems fairly on point and contrary to the argument being made by BLinC. In that case a Christian Legal Society chapter had argued for its right to require its executive to hold certain beliefs, contrary to the University policy, which said that approved organizations had to “allow any student to participate, become a member, or seek leadership positions in the organization, regardless of . . . status or beliefs.” (Martinez, at 671). The University policy was upheld by the Supreme Court as “content neutral” and not in breach of the First Amendment. So was this precedent applicable here? Yes, Judge Rose concluded that it was, and that the “University’s decision to revoke BLinC’s registration is permissible if the University’s requirement of compliance with the Human Rights Policy is reasonable in light of the purpose of the forum and viewpoint neutral”- at p 20. Her Honour held that in light of the Martinezprecedent the requirement was “reasonable”, but the important factor present in this case, which had not been established in Martinez, was that the University was not behaving in a way which was “viewpoint neutral”. An earlier appellate decision of the US Court of Appeals 9th Circuit, Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 798 (9th Cir. 2011), had held that if, as put into practice, a policy distinguished between different groups on the basis of the content of their views, then it would not satisfy the requirements of Martinez. Here Judge Rose found clear evidence that, as put into effect (as opposed to what it said on paper), the University of Iowa’s policy was not even-handedly applied between different groups. BLinC cited the example of other groups which were allowed to operate in accordance with their policy commitments on various issues. In particular, however, they were able to refer to the “Imam Mahdi” organisation, a Muslim student group which had an explicit requirement that its members (not just its leaders) all be Shia Muslims. The argument was simple: if the University was generally applying its Human Rights Policy in a “content neutral” way to all clubs, clearly a requirement that members be of a particular religion was just as objectionable as a requirement that officers adhere to Biblical standards of morality. But the University had taken no action to de-register the Imam Mahdi group. Her Honour concluded:

In light of this selective enforcement, the Court finds BLinC has established the requisite fair chance of prevailing on the merits of its claims under the Free Speech Clause.

Conclusion

As noted, the order in this case is not a final resolution of the matter, and the interim injunction expires in 90 days from the order. It will be interesting to see if the University of Iowa decides to improve its chances of success by threatening to deregister the Muslim student group mentioned, and whether it will also attack other groups set up for religious or other purposes. For example, other prohibited grounds of discrimination under the University Policy (see n 1 on p 2 of the judgement) include “national origin” (would this preclude a Korean club from requiring leaders to be Korean?) and “sex” (would this preclude the Feminist Club from only electing women to leadership positions?) (These two examples are drawn from actual clubs cited by BLinC in their pleadings, the Korean American Student Association, and the University of Iowa Feminist Majority Leadership Alliance- see p 27 of the judgment.) These are issues that have come up previously in Australia- see my earlier post “Religious Ethos and Open Membership at Sydney University” (March 17, 2016). The result of that situation was that the Sydney University Union later withdrew its threat to de-register the Sydney University Evangelical Union for its policy requiring members to be Christians. That Australian case did not directly involve the issue of sexuality, which complicates the Iowa and other similar situations. It is worth noting that a main argument put forward by BLinC was that there was a difference between a decision based on “sexual orientation”, and one based on sexual activity. However, this distinction was rejected by the University authorities, and while not explicitly addressed by the Judge, it seems would also have been rejected by her Honour as well. While I think there is still an important point here, it has to be said that courts around the world continue to rule that a distinction based on homosexual sexual activity is equivalent to a distinction based on a person’s “sexual orientation”. (For previous discussion of this point, see my earlier post here.) In the case of heterosexual persons, of course, it used to be widely accepted that a person who is heterosexual in “orientation” may legitimately choose not to indulge their sexual preferences, by living in chastity outside marriage, or indeed in celibacy if so called to this option (for example, if marriage is not entered into). That such honourable choices seem unbelievable to many in the highly sexualised world of the secular West, does not mean that they are not made all the time. Why then is it not possible to accept that an organisation may be perfectly happy to accept as a member a person of homosexual orientation, so long as that person indicates that they undertake not to act on their sexual preferences? Feeling tempted to act, and declining to do so where the action would be wrong, used to be seen as something which is admirable. Indeed, it might be said with some force that if such a view had been widely accepted for the last few decades, there would have been less tolerance of the powerful sexual predators who have been recently exposed in the entertainment industry and elsewhere. Be that as it may, it seems that at the moment it is hard to persuade decision-makers that a distinction based on sexual activity is not equivalent to one based on sexual preference. Nevertheless, student groups and others who hold to a Biblical view of sexual morality should not be denied official status because they hold a different view on these matters. I would argue that the legitimate diversity of opinion on these matters between different views of the world, especially among religious groups, means that the University ought not to impose a “one size fits all” approach. Judge Rose briefly considered the “harm” that would result by allowing BLinC to operate its policy, and concluded that it would not be serious enough to refuse to enjoin the actions of the University in denying its Free Speech rights.

An injunction may not affect Defendants inasmuch as it may impact the University community by exposing members of the student body to discrimination. Nevertheless, the likelihood of this occurring appears slim; BLinC is a small organization and one of over 500 student organizations.

In other words, students who would be upset by the policy need not become members of BLinC, there were many other options for clubs. Her Honour does not seem to regard the “dignitary harm” suffered by same sex attracted persons knowing that there was a club which did not accept them as leaders, as sufficiently serious to tip the balance. This seems, with respect, the correct view. Christian students would know that the Muslim society would not accept them as members, just as Lithuanian students would know they would not be accepted by the Korean American society. It can be of no surprise to anyone that some religious groups believe that homosexual activity is not consistent with God’s purposes for humanity. But, especially in the context of a robust discussion on major world views that ought to happen at tertiary institutions, it is far better to allow those views to be debated and discussed, than to force minority groups off campus by denying them facilities. Both free speech and religious freedom principles are at stake. They ought to be principles that are valued by Universities above all.