Preserving Orthodoxy on Secular Campuses: The Right of Student Religious Organizations to Exclude Non-Believers

Abstract:     
Increasingly, it is common for public universities and student religious organization to litigate over the membership policies of the organization. On the one hand, many public universities ban discrimination based on sexual orientation, political, or religious belief in all aspects of campus life. On the other hand, many faith-based groups wish to exclude those who believe that homosexual conduct is sinful or those who adhere to different theological tenants. In Christian Legal Society v. Walker, the Seventh Circuit held a state university’s interest in preventing discrimination against homosexuals did not outweigh the organization’s interest in expressing its disapproval of homosexual activity by barring active homosexuals (and others) from serving as voting members or serving in leadership capacities even though they participate in its activities. Conversely, in Christian Legal Society v. Kane, the Ninth Circuit, relying on circuit precedent from a similar case in the K-12 context, reached the opposite result.

Yet, despite the conflict between the Seventh and Ninth Circuits, existing Supreme Court precedent suggests that student religious organizations should prevail against public institutions. Quite simply, orthodoxy may be enforced. Student religious organizations have a right to exclude non-believers.

The purpose of this Article is to explain why student religious organizations have a constitutional right to control their membership. Part I details the Seventh Circuit decision in Walker and the district court opinion in Kane, which the Ninth Circuit summarily affirmed. Part II views the issue through three different constitutional lenses - the Free Exercise of Religion, the Freedom of Expressive Association, and the Court’s student organization jurisprudence.

Number of Pages in PDF File: 20

Keywords: Freedom of Speech, Freedom of Religion, Freedom of Association

Accepted Paper Series