The Dangers of the 7th Circuit Decision

To answer Robert’s questions above: (1) SIU CLS bans anyone who engages in homosexual conduct or who thinks homosexual conduct is not sinful. So technically, a self-hating celibate gay student might be permitted. It’s sort of like saying, we welcome all Muslims, as long as they’re willing to spit on the Koran. (2) The Rutgers decision was a settlement, not a legal ruling. This would be the first at the court of appeals level, and it is now certain that SIU will lose. SIU might settle (or give up), unless they want to appeal the case.(3) To my knowledge, SIU does not permit any student groups to have constitutional rules banning certain types of students. It is permissable to have certain housing-based groups that are gender-segregated (fraternities and sororities), but that is the only exception.

David French, head of FIRE, celebrates the decision here: http://thefire.org/index.php/article/6222.htmlIn reality, the proper injunction by the court would have been to require SIU to recognize the group, but require the group to admit all students. By its injunction (and its complete indifference to the rights of students to join a student group at a public college), the 7th Circuit makes yet another attack on the individual rights of college students (see Hosty v. Carter, www.collegefreedom.org).

John K. Wilson, Illinois State University, at 9:55 am EDT on August 29, 2005

No absolutes

Freedom of speech & association have never been absolute. The state (here the university) must also ensure equal protection of the laws, eg. Further, it cannot act as an agent to establish any religious principles (and case law on the Establishment Clause surely demonstrate how complex THAT boundary is).

If the group was private and sought neither recognition nor support from the university, its discriminatory practices would likely be permissible. However, in seeking recognition, they ask the University to support and permit its discriminatory practices.

In any case, recognition is the crux of the issue, as it was decades ago — the courts at that time precluded universities from denying recognition to politically radical groups, eg, so long as they agreed to abide by university policy. A non-discrimination policy is not a new concept at a public university — it has roots a half century old. It is not a pretext for precluding neo-discriminators. It’s integral to the state’s duties under the civil war amendments.

IF this university uniformly requires such a commitment from all student organizations, the exception made judicially for this group makes little sense. I hope the 7th Circuit hears the case en banc, and if the ruling is upheld, the Supreme Court offers additional guidance in this matter.

The courts have had to deal with this issue in relation to race (eg, the Bob Jone Univ. tax emeption case). If a group argued its religious beliefs required they deny membership to any non-caucasian, would the court require recognition? If not, how is that case distinguishable? The direct conflict with the 14th Amendment? Perhaps. But the issues here are remarkably complex and intertwined. I hope folks don’t try to strip away the complexity — the 2-1 split and the sharp dissent from the 1st bench is indicative that this may be a fault line case.

Mike Sacken, prof of educ at tcu, at 11:44 am EDT on August 29, 2005

Backlash, I imagine, is a more oppressive burden for any minority group, such as gays, than the actual denial of membership in some organization or group—such as the military—. In other words, in an effort to iron things out and make way for supposedly kind treatment of gays, we could pass laws that create far more hatred of and trouble for gay people than they would have experienced if that special requirement (such as that they be allowed in the military) had not been put in place and enforced. Maybe it HAS to be that way but I wonder. For example, I heard something to the effect that in some part of California all special education students had been exempted from some standardized test for graduation. Now won’t everybody assume—or at least wonder—whether their graduation diploma has meaning? Do any African-Americans feel uncomfortable about set asides or other affirmative actions taken on their behalf because they feel that after such actions their credibility is reduced? And if so do they rail against those actions—or is the pressure so great to keep quiet about it that they say nothing. Are there studies on this sort of thing? Especially, in the case of the SIU thing, as regards gays? Do anti-discrimination rules reduce or increase mistreatment of gays?

Vincent, at 5:06 am EDT on September 3, 2005