Should Christian Organizations Be Able to Discriminate on the Basis of Religion? Sexual Orientation?

Intervarsity Christian Fellowship an evangelical student organization with 949 chapters on 616 campuses was “derecognized” last week by the California State University system. The offense leading to the derecognition was that the ICF required its leaders to have Christian beliefs. This constituted discrimination on the basis of religion. I am no fan of ICF or of evangelical Christianity, but this sanction against ICF strikes me as indefensible.

It generally makes great sense for the University system not to recognize organizations that discriminate on the basis of religion. Ordinarily, such discrimination is rightly against public policy.  The Sierra Club ought to be able to select its leaders by taking their environmental views into account, but refusing leadership to Catholics, Jews, or Muslims makes no more sense than it would for the Sierra Club to discriminate on the basis of race. But ICF ought to be able to select its leaders on the basis of their conformity with the religious mission of the organization. Both the Sierra Club and the ICF ought to be able to pick leaders in terms of their missions. It is certainly arguable that the recognition by the University of a religious organization (and the subsidies associated with it) violates the Establishment Clause. But the Court has rejected similar arguments in cases involving student groups and vouchers. Regrettably, from my perspective, the Ninth Circuit has held that a state university can refuse to recognize a religious group that discriminates on the basis of religion. Alpha Delta Chi-Delta v. Reed, 648 F.3d 790 (9^th Cir. 2012). My views have been rejected. It’s not the first time.  

More difficult, for me, is the question whether ICF should be able to exclude those involved in same sex sexual relations (or gays altogether) from its leadership since ICF believes such relations are sinful. Here I think the University need not recognize an organization that discriminates on the basis of sexual orientation though it ought not be able to exclude the organization from campus. Recognition involves various University subsidies, but non-recognized organizations can have access to university classrooms for meetings. In the case of gays, non-recognition without exclusion to my mind strikes a reasonable balance. 

Comments

[Clark West]

Thanks, Steve. That's very helpful.

[Steve Shiffrin]

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Clark
In the second paragraph I assume that the exclusion by the organization is based on deeply held religious convictions, but I do not believe a University has
to recognize and subsidize organizations that discriminate on the basis of race or sexual orientation regardless of their reasons for doing so. I agree that the effect is to privilege some theological sets of beliefs over others, but not because the state
has made a theological judgment. The state has made the political judgment that racial equality and equality for gays and lesbians is important for the polity.

Steve

[Steve Shiffrin]

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Clark
I may have misinterpreted your question. Suppose an organization excludes any person who engages in sex outside of heterosexual marriage whether gay or straight.
The impact of the policy is to exclude gays. That impact in my view should count as discrimination against gays even though the policy covers more than gays. I think the same of neutral regulations that have a discriminatory impact on the basis of race, but
the Court has long held that impact without intent in the area of race does not give rise to any form of heightened scrutiny.

[Clark West]

Steve,
This may be a naive question, but what if the organization insists that a core belief is sexual expression only within the context of heterosexual marriage. In other words, if they insist that this is an essential part of their religious identity.

I have heard it said by some evangelicals that those who support same sex marriage and/or non-heterosexual sexual behavior are not actually Christian.
Of course I disagree, but why would this exclusion be any different from excluding a non-Christian from leadership. IF their theology rejects as non-Christian the non-celibate lgbt person, regardless of how that person self-identifies, can one restrict them legally without wading into the murky waters of privileging certain theological systems/beliefs over others?

In other words, could not your argument in your first paragraph be made by those who run afoul of your restriction in your second paragraph? How would you respond?