May 2

Gay Rights vs. Religious Rights

A federal judge has ruled that the Georgia Institute of Technology had materials in its office to support gay students that amounted to unconstitutional support for some religious groups over others.

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The case may have no practical impact at Georgia Tech as the materials in question are already gone. But the legal group that brought the suit and other analysts agree that such materials may well exist at other public colleges and may now become the focus of more scrutiny or legal battles. The Georgia Tech ruling is believed to be the first of its kind.

The ruling came in a case involving a range of issues over speech codes and support for religious groups at Georgia Tech — issues that mirror those being raised at other public colleges and many of which were resolved in earlier rulings or agreements between the parties in the case. The new part of the ruling, however, focused on a set of materials used in the “Safe Space” program at Georgia Tech, a part of the institute’s diversity office designed to support gay and lesbian students.

The case was filed on behalf of two Georgia Tech students, assisted by the Alliance Defense Fund, a legal group that has sued many public colleges accusing them of violating the rights of religious students. The portion of the suit about Safe Space argued that materials at the public university were effectively religious in that they endorsed some faiths over others — and that these materials were as a result unconstitutional. Judge J. Owen Forrester agreed.

The materials in question dealt with issues that may be faced by religious gay students, or by gay students challenged about the sexuality by people from different faiths. One passage cited in the ruling says that “historically, Biblical passages taken out of context have been used to justify such things as slavery, the inferior status of women, and the persecution of religious minorities.” Such attitudes have led some religious groups to declare “that homosexuality is immoral,” the group’s materials state, while others “have begun to look at sexual relationships in terms of the love, mutual support, commitments and the responsibility of the partners rather than the sex of the individuals involved.”

In another section, the materials discuss specific faiths, noting which faiths recognize same-sex unions, and the conditions under which some faiths will ordain gay clergy. While the Episcopal Church is praised as “more receptive to gay worshipers than many other Christian denominations,” the Church of Jesus Christ of Latter-day Saints is described as having “the most anti-gay policies of any religion widely practiced in the United States.” The section on Roman Catholic belief also notes that some theologians have argued, “much to the embarrassment of the Vatican,” that the medieval church recognized unions for same-sex couples.

In his ruling, Judge Forrester noted that Safe Space is not just one among many student groups, but one with close ties — financial and staffing — to the university. In this context, he said, it is irrelevant that officials involved in the program stressed that the materials in question had no religious purpose, and were simply motivated by a desire to help students understand the views of different religious groups on questions of sexuality.

Because of the close ties to the university, Judge Forrester said, the issue is the “clear preference of one religion over another contained” in the Safe Space materials, which he said was clearly unconstitutional. The decision ordered Georgia Tech to remove the materials in question.

A statement from the university said that it “disagrees” with the decision, but that it is “moot” because the materials are no longer used by the Safe Space program.

Nate Kellum, a lawyer at the Alliance Defense Fund, said that the issues are not moot elsewhere. While the exact names of programs and the materials they use may vary, “these kinds of things are all over the place,” he said, and other public colleges would be well advised to note this week’s decision.

Even in other parts of the country, where a ruling by a single federal judge would not be binding, he said, “I think the logic and reasoning would support the idea that this practice is unconstitutional.”

A professor making comments in a classroom similar to those in the Safe Space materials would not be unconstitutional, Kellum said, because such statements would not carry the same weight as coming from the institution. He added that his group was not opposed to all services public colleges offer for gay students.

“The problem with this was that the university was denigrating firmly held religious beliefs,” he said. The Safe Space materials “held in high regard certain denominations that found no moral implications in homosexual relations, but denigrated those that did find moral implications.”

Brian Moulton, a lawyer for the Human Rights Campaign, a national gay rights group, agreed that the Safe Space materials were problematic. He noted that nothing in the decision makes it impossible for a public college to offer programs for gay students, and that the only limitations concern discussion of religion.

The language used in the materials about religions “did very much sound like taking sides,” which is “very problematic with public funds.”

Others were more critical of the decision. Steve Sanders, a Chicago appellate lawyer and former public university administrator, said that some of the materials at issue “might strike some readers as rather shallow and tendentious,” but he added that “I think you have to squint awfully hard to conclude that, as a First Amendment matter, they either denigrate or proselytize on behalf of any particular religious perspective. While the materials may betray a certain political or cultural point of view and we can debate the extent to which universities should be in that business, I think it was something of a stretch for the court to say they amounted to government favoritism toward one set of religious beliefs at the expense of another.”

Sanders also noted that “religious activist groups” like those frequently supported by the Alliance Defense Fund “have properly sought to contribute their perspective on homosexuality to the larger market place of ideas” and that these groups “understandably employ religious texts and religious concepts,” when they do so. He added that “I read the Georgia Tech Safe Space materials not as a foray into theology for its own sake, but rather as an effort to engage and critique the claims made by anti-gay religious groups.”

Sanders said that “some might see it as a bit hypocritical for a religiously partisan group like the Alliance Defense Fund,” which says it wants to promote “robust public debate,” to “show this sort of hypersensitivity and file a lawsuit when a group like Safe Space criticizes those perspectives.” The suit, he added, “raises the suspicion that this isn’t so much about having an open and robust debate as it is about using the tools of law to shut down the other side.”

— Scott Jaschik

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Comments

Very Dangerous

Gosh, I can hardly wait until the Alliance Defense Fund gets a load of what is said about various religions in the books and journals of the typical university library, an institution that also has “close ties — financial and staffing — to the university.”

Cranky Old Prof, at 8:40 am EDT on May 2, 2008

This Ruling Is an Attack on Free Speech on Campus

This ruling reflects a terrible threat to academic freedom. By ruling that students and employees involved with a program at a public college have no right to express views about religious groups, the judge misreads the First Amendment and imposes a tremendous burden on free speech. In essence, the judge has banned any employee at a public college from making an “unconstitutional preference of a particular religious view of homosexuality.”

The Safe Space program, an optional Housing Department staff training program, imposed no burden on any religious group; it did not ban any religious organization or restrict their speech.

Certainly, a university has the right to have a program supporting gay and lesbian students and their needs. Certainly, the notion that all religious are equally accepting of homosexuality is absurd. Certainly, a program can inform its participants about what the views on homosexuality are among various religions. The fact that there is “substantial administrator involvement” in the program is irrelevant. Administrators have academic freedom, too.

The Safe Space Training Manual expresses certain opinions about the views of various religions on homosexuality. These views may be wrong. These views may be pointless. But they are opinions, and for a court to ban employees (and student coordinators) at a public university from expressing critical views of religion is fundamentally opposed to academic freedom and free speech.

The plaintiffs argue that the Safe Space Program “denigrates” the views of religions that oppose homosexuality. It does. So what? In a free society, people are free to denigrate religions.

Citing a flawed ruling involving 8th grade curriculum materials supporting gay rights, the judge ruled that the Safe Space Program fell under the same approach. But there’s a problem here. The Safe Space Program isn’t part of the curriculum, and these aren’t preteens. They’re adults.

Georgia Tech administrators have done plenty of stupid things and sought to restrict free speech. But that’s no excuse for the conservative students to attempt to restrain free speech on campus criticizing religion.

John K. Wilson, collegefreedom.org, at 9:15 am EDT on May 2, 2008

Please read the article

Dear Cranky,The issue wasn’t that the materials were simply available in a library, but that they were the official materials being used by the Safe Space program in its work with students. It has no relevance whatsoever to the contents of college libraries.

Not So Cranky, Not So Old, at 9:15 am EDT on May 2, 2008

Gee, I wonder who their commencement speaker will be?

Greg, at 9:45 am EDT on May 2, 2008

terrible ruling

Dear “Not so Old/Not so cranky",

I suggest you re-read Cranky Old Professor’s comment once again. He is *extrapolating* the outcome of this decision and speculating on the chilling effect this will have on campus free speech, up to and including selection of library materials.

I do take issue with the materials stating “taken out of context, the bible has been used to justify slavery, condemn homosexuality, etc."; I’m myself an atheist, but I do have a problem with that assertion;Namely, I don’t think it’s taking the bible out of context to at all to say it does advocate those things...it clearly does, and it’s wishful thinking and willful ignorance to take a rosy, hallmark card/children’s Sunday school vision of the totality of the bible, cherry pick the nice bits you like and dump the rest. To gay and religious, do yourself a favor and read some speeches by “the Great Agnostic” of 19th century America, Robert Green Ingersoll. The Bible as a guide to morality is quite a mixed bag. Take it as a human invention, a product of its time, part of the cultural heritage, as a scholar like Robert Price does, fine; Take it as THE TRUTH as spoken from the Supreme Being, utterly infallible (despite glaring inner contradictions), and you’re going to run into problems quite quickly.

Still, the court’s decision strains credulity. The materials were clearly mostly informational in nature, along the lines of ..."you will probably find Methodists more welcoming than Southern Baptists, and Unitarian Universalists even more welcoming still, while other homosexuals prefer to socialize with self-declared atheists”

Unfortunately, American law always comes down to flawed human judges who are not always free of private prejudices. Not sure this decision would survive higher court review, if the university decided to appeal.At least I hope it wouldn’t.

JJR, at 9:55 am EDT on May 2, 2008

This is what happens when an administration with a clear anti-gay agenda engages in aggressive court-packing.

keer, at 10:25 am EDT on May 2, 2008

It seems preposterous that any subject, including religion, is exempt from critical examination by any entity or sub-section of the university. It seems the confusion comes from the state subsidy these universities receive, or rather, that these universities are state/governmental institutions. Perhaps it points out some of the problems when governments are involved in educating people. If states fund universities and states can’t be in the religion game, then universities are not allowed to be in the religion game.

Grad Student in Missouri, at 10:35 am EDT on May 2, 2008

Insatiable

Let me get this straight. The Catholic Church, Orthodox Jews, LDS, Baptists and other religious groups have spent considerable time and money denigrating and condemning homosexuality. Now the vehemently anti-gay Alliance Defense Fund files suit against a student run organization merely for identifying this hatred and bigotry. They should be thankful that anyone pays attention to their ludicrous ideas at all.

Charles Bittner

Charles Bittner, at 10:40 am EDT on May 2, 2008

Gay materials/religious materials

Hey, you can’t have it both ways, Cranky.If we focus on free speech, then allow profs and students and groups to talk against homosexuality from their religious or moral roots. If you won’t allow that speech, then you can’t allow homosexuals to state their preferences for one religion over another.

Why do we use the “free speech” card for almost everything except religion?

Bob, at 10:40 am EDT on May 2, 2008

Whose free speech?

Mr. Wilson seems unwilling to concede what the court actually ruled: “Georgia Tech is a willing state actor in this instance", and, “that an objective student observing the manner in which the Safe Space program is administered would perceive it as receiving the stamp of approval from administration of Georgia Tech.” That is what is unconstitutional, academic freedom notwithstanding. The speech of students, student groups, and faculty speech is not being limited.

justaguy, at 10:45 am EDT on May 2, 2008

Two sides of the same coin

While I sympathize with the concerns about free speech expressed above, I wonder where the free speech advocates were when people with diverse viewpoints on homosexuality were having *their* freedom of speech rights taken away on modern campuses.

For example, within medicine and clinical psychology, the facts still leave room for debate about the “innateness” of homosexuality. However, what is accepted (without labeling of “homophobia") is far less diverse.

Live by the sword, ......

Stubbornly Rational, at 10:45 am EDT on May 2, 2008

Keer, Except this was a 1981 Reagan appointee. Undoubtedly conservative, but I doubt the anti-gay agenda was central to his appointment.

aaa, at 10:50 am EDT on May 2, 2008

I wonder if this decision would survive the appeals process?

I’m doubting it wouldn’t due to several recent supreme court rulings involving religion/free speech.

Sam, at 12:20 pm EDT on May 2, 2008

Not Freedom of Speech, Freedom to State Facts

What is at stake in this case is not even freedom of speech, which guards the right to state opinions. Rather, it is freedom to state facts. It is an objective fact that certain religious traditions are more intolerant, and others more tolerant, of LGBTQ persons and our relationships. If a student organization can speak out against genocide in Darfur, then the same or other student organizations have a right to speak out against institutions that oppress human beings on the basis of sexual orientation. The ruling is a step toward a police state and away from a civilized society.

JW, at 1:40 pm EDT on May 2, 2008

Is This Issue Constitutional ... Or Biblical?

Wow, it seems that every day or so I find myself responding to an InsideHigherEd article from my perspective as an elder in The Church of What’s Happening Now.

First, JJR is correct. Anyone who thinks one must take statements in the Holy Bible out of context in order to conclude that It advocates – or at least condones – slavery, sexism (against women), homosexuality, and, my favorite, our rarely-mentioned intellectual responsibility to take issue with the Almighty when He’s not thinking clearly is simply not reading that very entertaining Book very closely.

Some may call us cafeteria Christians, because we don’t believe everything embraced by their particular Christian dogma. For example, we support gay and lesbian marriage, we have no problem with taking God’s name in vain, we’re all for graven images and have, for example, worshiped those in the Sistine Chapel on more than a few occasions, we approve of abortion even when the fetus coming to term is not hazardous to the health of the woman, etc.

You see, we’re not buying into the infallibility of the Holy Scripture ... and for two reasons. First (at least for most of us), it’s a translation of a translation, virtually all of it “translated” from the “original” waaay after the fact. Second – and this is discussed much too infrequently — who’s to say God gets it right every time and on the first try.

For example, at The Church of What’s Happening Now, we think those stories about Moses trekking up Mount Sinai for a little R&R, and then returning with as many commandments as he had fingers on his hands and toes on his feet is just too coincidental.

http://www.youtube.com/watch?v=aPWMtKwsNt0

In our view, he got up there, brainstormed for three days, decided murder was bad (except when you’re doing it for your country or are trying African-Americans in Texas) and stealing was bad most of the time, and then got stuck (don’t forget, he was over 80 years old at the time and climbing Mount Sinai is no small peanuts even for a much younger man).

http://www.touregyptphotos.com/sh...d=&sort=1&cat=998&page=1

Anyway, we think he quickly wrote down the other eight commandments (faulty translation) and his carelessness has wreaked havoc in the Judea-Christian world ever since.

So, if you ever discover a member of The Church of What’s Happening Now admiring the stained glass windows at St. Vitus Cathedral in Prague, or going trout fishing on Mills River on the Sabbath, or admitting that his father was an anti-Semitic racist, or engaging in a bit of plagiarism (stealing), or wishing his azaleas were as beautiful as his neighbor’s ... well you’ve got my point. Either Moses was overworking his not inconsequential imagination (he had a habit of doing that) or else the god who happened to be hanging out in Egypt and looking out for the Israelites back in the 13th century BCE has to be one of the most insecure, self-centered fellows ever (Zeus, for example, had those personal characteristics himself ... I think it comes from spending too much time “being God”).

Insofar as Judge J. Owen Forrester’s decision is concerned, there is no doubt that parts of the Bible – and especially the Book of Leviticus – come down pretty hard on homosexuality, even indicating that it is a sin punishable by “death.” Of course it is impossible to miss that the same Book of Leviticus promises that those of us who eat anything that lives in the sea that has no fins or scales – including shrimp, scallops, clams, oysters, lobsters, and my all-time favorite, Alaskan king crabs – do so at the risk of eternal damnation. And eating a cloven-hoofed animal that is anatomically unable to chew its cud – hmmm, I think I’ll pass on the baby-back ribs tonight – will assure you of a future that’s hotter than Dave’s Insanity. And that’s not to mention the consequences of eating your steak rare or wearing clothes made of two different materials. According to Leviticus, you’ll burn in Hell for those offenses too. I suppose we should anticipate Judge Forrester soon hearing a case brought by some litigious students against the culinary fare in the fast food restaurants at Georgia Tech ... and on constitutional grounds related to the separation of church and state.

All I can say to Judge Forrester and the author of the former Georgia Tech “Safe Space” program is that if the God who was speaking to them earlier in the week is the same one who was whispering in the ear of the writer of Leviticus, we’ve got a lot more to worry about than whether our colleges and universities try to provide a few social benefits to gays and lesbians.

Frizbane Manley, at 1:55 pm EDT on May 2, 2008

try a reversal...

Think of it the other way... if the materials were for religious students and said, “You may find that heterosexuals are nicer than homosexuals,” everyone would be fuming. I’m all for academic freedom. Obviously, professors interpret the Bible and other religious materials in class on a regular basis. This, however, was an office in a state university... having them say whether or not the Bible was interpreted correctly by churches is offensive. The Bible is rather clear on homosexuality. If you disagree, fine, but don’t say that followers have “misinterpreted” the Bible in this case.

Liz, at 3:05 pm EDT on May 2, 2008

In Rosenberger, the Supreme Court said a public institution had to give student activity funds to a narrowly-religious publication because to withhold money was violating the First Amendment. It stifled free speech of a religious group, just because it was a religious group. The university was trying to remain neutral on religious issues by not funding any political or religious advocacy, but that didn’t fly. This seems to rule in the other direction — that the university SHOULD refrain from supporting any religious speech in order to remain neutral. So, it will be interesting to see if this ruling stands outside of the deep South.

Hied junkie, at 3:20 pm EDT on May 2, 2008

just wondering. . .

Why is it that when traditionalists fight back, it is a violation of “academic freedom.” But when non-traditionalists fight back, it is a defense of “academic freedom"?

Likewise, when traditionalists are on the attack, the non-traditionalists often have their civil liberties violated. But when the non-traditionalists advance their causes, the traditionalists’ civil liberties are not a concern?

Just wondering. . ., just wondering. . ., at 6:10 pm EDT on May 2, 2008

What are the implications?

Some religious believe that the Bible supports punishment by death for gay people.

Does this current ruling mean that Tech campus police (who are paid by GATech) aren’t allowed to protect the life of someone who is perceived as GLBT by a person/s who adhere to that religion?

This ruling is scary!

AuntieEm, at 7:05 am EDT on May 3, 2008

No Room for Response = Tacit Endorsement

The problem here seems to be that the religious groups who were challenged on public-owned property were not afforded an opportunity to respond within the context of the display. That’s where the unconsitutional endorsement argument falls in. I support gay rights but think the court was right here. If the same display had been slanted towards a conservative view that some religions are wrong in accepting homosexuality, I feel confident that the court would have ruled the same way — and rightly so. The first amendment protection on freedom of religion cuts both ways.

“Religion and sexuality” is a valid issue for public debate, but it’s not the state’s role to endorse one side or the other. And there are lots of ways the university could have offered “Safe Space” without infringing on the constitutional rights of others.

Jeff, at 9:50 am EDT on May 3, 2008

Religion vs. Sexuality

The article on Gay Rights vs. Religious Rights and the outcome by the Georgian Judge is I believe a hint at a larger problem, and one that again points to the religious communities at large.

Religion is not a uniting force nor has it ever been in history. Ultimately it is a massively divisive force. And when one religion decries unfair balance or representation over another, it is because the one usually doing the crying/complaining is the more divisive and the one that is not as open or accepting as they usually state they are.

J. Keith Henry, at 1:35 pm EDT on May 3, 2008

What next?

This ruling seems like the proverbial camel’s head under the tent.

How long before GA-tech sanctioned textbooks incorporating evolution are banned because they are offensive to religious groups who believe in “creation science"?

Buster, Purdue University Alumnus, at 9:30 pm EDT on May 3, 2008

The judge did the right thing. Two factors created the establishment clause challenge:

1. The dean had editorial power over the literature in question, creating state entanglement with its content.

2. The literature used a theological justification for the notion that homosexuality is not a sin. It’s not okay for the government to do stuff like that. We don’t need the state telling us how to correctly interpret the Bible or when some verse has be “taken out of context.” Read the judge’s ruling and you’ll appreciate how far the literature strayed over into Bible opinion land.

I’m surprised the matter even went to court. The dean should have recognized the problems in the handouts and requested that they be changed. A simple list of gay friendly churches in the area would have sufficed. No theology necessary.

Please everybody, be happy! State schools can continue to create forums for free speech for both faculty and students. Administrators simply must avoid

1. asserting editorial influence or control over the speech expressed in those forums

2. offering theological opinions.

Dr Benway, It’s ultimately a pro-free speech, pro-gay ruling, at 10:50 am EDT on May 4, 2008

If a school wants greater freedom of speech, simply quit taking government money. Obviously cash trumps principles every time.

Dennis Ruhl, at 9:20 pm EDT on May 4, 2008

moving the line

The previous two comments before mine said pretty much what I wanted to say about the ruling. Good, sound ruling based on the laws available and the materials in question.

I’ve been in China for nearly four years, doing research, working as a participant observer and collecting data for my dissertation. Living here as afforded me to look at my Motherland “from the outside”

The issue here is not whether the judge is competent; remove your glasses (lenses if you prefer) and you’ll see clearly he was in this particular ruling.

The issue is not free speech, as the two previous posters (and others) eloquently pointed out.

The issue is the ‘moving boundaries’ we have in the U.S. States’ laws sometimes contradict with national guidelines (or even laws!) so people are not confident saying “no” to a group when said group requests funding for something.

As iterated before, the responsibility was with the dean’s or key administrator’s office to recognize those particular materials were not proper under the ‘current set of laws’

Until we recognize that having all this freedom will make us “busier and busier” and regulate ourselves to interpreting the laws and actually doing what we are paid to do, we’ll have more problems like this.

In the U.S., we draw lines and say, “don’t cross those lines.” Various groups have said over our country’s brief history, “but your line makes me uncomfortable"Sometimes the U.S. says to (at times it seems random) some of those groups, “we warned you, byebye.” see Ruby Ridge, Waco, etc.

But most of the time in Student Affairs, Academic Affairs and the other (again at times seemingly random) times when the U.S. doesn’t ‘go postal’ on a group, we say, “okay, let’s move the line for you and give you more room” Disgustingly, this seems to be the norm, not the exception in Student Affairs today.

Where are the “teachable moments?” If we constantly “move the lines” so there are no mistakes made by students...?

See, we are living in a time that is already the product of “avoiding responsibility” It won’t get better until our profession develops some backbone.

This constant “line shuffling” as I call it gets confusing at best, unfathomable at the worst of times.

Living in China illuminates this. China says, “we have lines, don’t cross’em” There are clear consequences and examples of what “line-crossers” can expect. It is refreshing at times, to know that the country and the provinces mean what they say and the line won’t be moved every single time someone complains.

I’m not blanketly promoting China’s policies over the States policies: some of your responses above lead me to believe that would be believed by you.

I’m simply saying, it is refreshing to have a set of rules that everyone understands and knows will not change overnight.

With freedom comes responsibility, and we’ve shirked that responsibility far too long. Stand up for what you believe in, fine. I do. Don’t expect it to be without a fight and don’t expect the “legal” decision to be “legal” tomorrow.

Vincent Nix, PhD Candidate at Washington State University, at 4:15 am EDT on May 6, 2008

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