Saturday, January 20, 2018

Religious Rights and Civil Wrongs on Campus

NOTE: This blog post does not constitute "legal advice." It does not even rise to the level of a "legal opinion" derived from legal research. It is merely an informal, uninformed exploration of some questions the dispute suggests to the author. If you are personally involved in, or affected by, litigation related to the issues discussed, you should consult a lawyer. — Nicholas Johnson, Iowa City, Jan. 20, 2018

UPDATE on Federal Court proceeding: Federal District Court Judge Stephanie Rose granted plaintiffs, Business Leaders in Christ, a temporary injunction on January 23, 2018. This will permit the BLC an opportunity today (January 24) to participate in the UI "recruitment fair" and sign up additional members. Note that this is not a final decision in this case. It only applies to the next 90 days. It does, however, require that the judge has rejected any prejudgment that there is no way the plaintiffs could possibly win on the merits (not that they will win). — N.J., Jan. 24, 2018

Additional Contents


How the University of Iowa Became 'Congress'"

Newspaper Coverage and Related Matter

A member of a University of Iowa student organization that calls itself Business Leaders in Christ (BLC), asserts that, "put simply, the school is discriminating against our group because it doesn’t like our Christian beliefs." The University insists it’s simply enforcing the legal and regulatory human and civil rights of LGBTQ students. [Jacob Estell, "Why Did UI Single Out Christian Group?" Des Moines Register, December 14, 2017; and Ira Lacher, "Op-ed left out important facts," Des Moines Register, December 22, 2017.]

What that student "put simply" is now a federal district court case. Business Leaders in Christ v. University of Iowa, U.S. District Court, S.D. Iowa, Eastern Div'n, Civil Action No. 17-cv-00080-SMR-SBJ, Memorandum in Support of Application for Preliminary Injunction Oral Argument Requested (Expedited relief before January 24, 2018 requested), December 13, 2017; Declaration of Hannah Thompson; Declaration of Kimberlee W. Colby; kDeclaratiion of Jacob Estell; Declaration of Eric Baxter.

In this age of political divisiveness — "us" vs. "them" — few political movements, if any, can resist using various forms of an often successful litigation strategy. For some, the "them" are the "billionaires and corporations."

In this case, the "them" are what the plaintiffs' financial backers, and those of similar persuasion, have at times asserted are one or more of the following: elitist, liberal, politically correct, ivory-tower, anti-Christian college faculty and students.

So who are the "us," the financial and legal backers of BLC? It’s a group called the Becket Fund for Religious Liberty — perhaps best known for its work on the Hobby Lobby case. Burwell v. Hobby Lobby Stores, 573 U.S. ___ (2014).

Here’s how The American Prospect describes the organization:
By choosing cases that will . . . slow the progression of same-sex marriage, critics contend, the fund has become ideological. The money seems to point in that direction. . . In 2012, the Becket Fund received almost a quarter of a million dollars from DonorsTrust, a shadowy middleman used to funnel money from benefactors like Charles and David Koch to conservative think tanks and advocacy groups. (The Becket Fund declined repeated requests for comment about its work and funding.)
Amelia Thomson-DeVeaux, "The Spirit and the Law; How the Becket Fund became the leading advocate for corporations’ religious rights," The American Prospect, June 18, 2014.

Thus, at the outset we need to recognize that this is not what one might normally think of as a "lawsuit." This is not two corporations suing each other because they can't resolve their differences; a consumer suing one of them; or a suit for damages suffered from personal injury in an automobile accident.

This lawsuit at least raises the possibility that it is but a single case in a nationwide political and ideological effort to make the case that (a) Christianity is under siege, and that (b) higher education is engaged in brainwashing young minds with socialism, liberal ideology, and agnostic to atheist religious views — including acceptance of same-sex marriage.

Indeed, it is even possible that Becket may have been involved in some way with the creation of the BLC, shortly before this conflict arose, in anticipation of a federal court case. I have no way of knowing if that occurred or not. Plaintiffs allege the organization has eight-to-ten members. I've not seen their names, and even if 10 that's 3/100ths of 1% of the student body. Moreover, BLC's filings in the case include a document making reference to a prior controversy at the University of Iowa nearly identical to this one. Declaration of Kimberlee W. Colby.

An effort to "follow the money" in this case is a story all its own. But with some exceptions, who is behind a law suit and why is of little relevance to the legal rights of the parties. Even serial killers are entitled to their constitutional rights. And Becket and BLC members are as well, almost regardless of motives.

Student organizations can increase their membership at the University of Iowa’s "recruitment fairs." The next one is scheduled for January 24-25, 2018. Because the controversy has resulted in the decertification of BLC as a student organization, it will not be able to participate. Therefore, Becket is asking the court for a "preliminary injunction" — by which one assumes it means the reinstatement of plaintiff as a student organization prior to January 24.

The primary requirement for preliminary injunction relief is a demonstration of the probability the plaintiff will ultimately win a permanent injunction.

Becket argues that BLC will ultimately win reinstatement, because plaintiff’s constitutional rights have been violated by the University.

Becket sites the First Amendment; but because it only limits "Congress" ("Congress shall make no law . . .") does it even apply to the University of Iowa? Yes; for the reasons why the University would be included in what the Founders called "Congress," see the Appendix, below.

What might be of relevance in the First Amendment? There are primarily three clauses (plus another three discussed below): The University "shall make no law ["law" includes "regulations"] respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech. . .."

Although the BLC's student spokesperson believes the University "doesn’t like our Christian beliefs," it’s important to distinguish between (a) beliefs that are held by students but not expressed, (b) the expression of students' beliefs in speech or writing, and (c) actions driven by those beliefs.

The University could not even know, and certainly does not restrict, students’ unarticulated beliefs or other thoughts — whether regarding religion or other subjects.

The University neither restricts students’ expression of their beliefs, nor could it legally do so — subject to some exceptions, such as disruption of the University's educational mission, or the provocation of "imminent lawless action."

This case involves BLC's actions — namely, its refusal to permit one of its members, who is openly gay, from running for a leadership position in the organization. It contends that student organizations, and student religious organizations most of all, must be permitted to retain what it believes is their constitutional right to insist that its leaders share the mission of the organization and the beliefs of its members.
Consider this hypothetical. From 1844 to 1978 the Mormon Church withheld from African Americans the opportunity to enter its priesthood — with theological arguments to support its position. Max Perry Mueller, "Is Mormonism Still Racist?" Slate, March 2, 2012. Assume that, prior to 1978, the University of Iowa had the same human and civil rights policies it has today. If the BLC's rationale were to be applied to that set of facts, could a UI Mormon Students Association successfully insist that it had a constitutional right to bar African American Mormon members from its leadership, while still enjoying the benefits of a UI-certified student organization? If not, why not; what is the distinction?
Note that University has not forbidden the existence of BLC in Iowa City, has not indicated a desire to do so, and probably could not do so. That is not at issue in this case.

This case merely involves whether a student organization at the University of Iowa, insisting on its asserted constitutional right to violate the University's written policies regarding students' human and civil rights (made expressly applicable to student organizations), is nonetheless constitutionally entitled to receive the benefits accorded University-certified student organizations. These benefits include such things as access to meeting rooms, participation in recruitment fairs, and financial support. Registration of Student Organizations ("It is the responsibility of each registered student organization to adhere to the mission of this University, its supporting strategic plan, policies, and procedures.")

All of which brings us to the distinctions between a "public forum" and a "limited public forum."

If the University, or other state institution, makes an auditorium or meeting rooms available to all organizations and members of the public, it has created a "public forum." As such, the institution cannot exclude any individual applicant or group from access to the public forum because of their religious beliefs, ideology or the content of their speech.

But that is not a public institution's only option. It can also create a "limited public forum" — that is, an auditorium or meeting rooms that are only available for designated groups or purposes. For example, use could be limited to "official university functions," or "college or department-sponsored events." That is, in effect, what the University of Iowa has done with regard to students' access to facilities, "recruitment fairs," and financial support. This privileged access is limited to student groups that have been certified as compliant with, among other things, the University's policies regarding individuals human and civil rights.

There is the possibility of some ambiguity in the BLC’s approach to students who identify as LGBTQ.

The BLC seems to accept the University’s Human Rights Policy requirement that BLC welcome all otherwise qualified students to membership regardless of the applicants’ sexual orientation. BLC Website, Membership Process ("The organization accepts anyone at any time throughout the year and will not discriminate against anyone on the basis of race, gender, sexual orientation, religion, disability or any other factor. However, because it is geared towards business students, the target audience for this organization would be for students already admitted into the Tippie College of Business, pre-business students, or students considering business as a major/minor.")
The University is guided by the precepts that in no aspect of its programs shall there be differences in the treatment of persons because of race, creed, color, religion, national origin, age, sex, pregnancy, disability, genetic information, status as a U.S. veteran, service in the U.S. military, sexual orientation gender identity, associational preferences, or any other classification that deprives the person of consideration as an individual, and that equal opportunity and access to facilities shall be available to all. (emphasis added)
Operations Manual, Ch. 3, Human Rights, Sec. 3.1; and Policies, I. Student Rights, F. University Policy on Human Rights.

The University's enforcement of these requirements is complaint-driven — thereby avoiding the intrusion, administrative difficulty, and excessive costs of investigations into the detailed operations of every student group on campus. Anyone can complain of violations, and if they do the University will inquire into the facts. My guess is that the issue plaintiffs are asserting (the University's prejudice against "Christian beliefs") has either never, or very seldom, arisen before. Thus, it is not surprising that when plaintiffs did undertake an investigation they were able to find what they allege to be the inconsistent enforcement of the human rights standards they are charged with violating. (Obvious examples would be sports teams, or Greek organizations, that limit membership to a single sex. They also found a Muslim organization with standards similar to those of BLC with regard to beliefs of the organization's leaders.) However understandable, this inconsistency in enforcement may be a problem with the University's defense. It may, at a minimum lead to a reexamination, and restatement, of the application of the University's policies regarding human and civil rights.
"U.S. District Court Judge Stephanie Rose pressed UI attorney George Carroll, specifically, on whether UI has addressed allegations it unequally enforced its human rights policy by deregistering Business Leaders in Christ for barring an openly-gay student. The student organization — which goes by BLinC — has argued other UI groups limit membership and leadership to those who agree with their ideals and religious beliefs, including Imam Mahdi, which reserves leadership posts for Shia Muslims and requires they 'refrain from major sins.' 'Has the University of Iowa taken any steps to ensure that organization has modified its constitution?' Rose asked about the Muslim group. Carroll answered, 'No.'" Vanessa Miller, "Federal judge presses University of Iowa on singling out religious student organization," The Gazette, January 19, 2018, p. A1.
It is true that BLC insists there should be a distinction between a certified student organization’s inability to reject members and what should be its freedom to apply stricter standards with regard to its selection of officers of the organization. (Becket argues an analogy to the "ministerial exception," that “a religious group’s 'selection of its ministers is unfettered.'" Brief, above, pp. 21 et seq.)

But even with regard to officers, there is an additional ambiguity in BLC’s position.

On the one hand, there is the suggestion that the organization’s Christian values are at odds with any male student self-identifying as gay –- which, while not precluding that student’s membership, would preclude their sharing leadership as an officer of the organization. (Depending on one's approach to the member-officer distinction, this would constitute a clear violation of the University's Human Rights Policy.)

On the other hand, there seems to be, as well, the profession of BLC’s Christian value that sexual relations outside of a marriage relationship are sinful. It is suggested that while individual occurrences of such a sin would not be disqualifying for BLC leadership (once appropriately atoned for), an open rejection of that value as a restraint on one’s behavior would be disqualifying –- possibly for membership, but certainly for leadership.

The complainant — an openly gay member who wished to be considered for leadership — was told he could not be an officer. It is possible that the BLC decision was grounded, not in the complainant’s sexual orientation status (his outing himself as gay), but rather on his insistence that he intended to continue to pursue sexual relations outside of marriage.

If so, and BLC applies the same standards to straights and gays alike (because sexual promiscuity is not one of the University’s protected human rights), the BLC’s decision would not seem to be a violation of the University’s prohibition of exclusion based on sexual preference.

As promised, not only is this blog post not legal advice, neither does it offer any answers, predictions of the judge's ruling, or proposals for revisions in the University's policies.

Moreover, there are many other issues involved in this case, and the others around the country involving student Christian organizations. It will continue to be interesting to follow how this case evolves over time.

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"Establishment," "Free Exercise," and Why the University is "Congress"

The University of Iowa has denied "Business Leaders in Christ" its status as a student organization because of what the University believes to be BLC's alleged anti-gay policies. WWJD (what would Jesus do)? Apparently, Jesus would sue the University in federal court, because that's what BLC is doing. Neither facts nor law are clear.

Constitution. Let’s start with the Constitution.

Mention "the First Amendment" and most folks (including myself) think "freedom of speech."

Of course, 'free speech" and "press" (media) are not only mentioned there, they are among the fundamental pillars of democracy. [See, "Defending Democracy," December 3, 2017.]

But so are other foundations of our democracy: the right "peaceably to assemble" and to "petition the government for a redress of grievances."

Religious Freedom. In fact, the First Amendment begins, not with freedom of speech, but with freedom of religion:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Is the UI "Congress"? How can the First Amendment, with its restraints on the Congress ("Congress shall make no law . . .") even apply to the University of Iowa?

Simple. The Supreme Court is said to have created this "interpretation" of the word "Congress," by adhering to Humpty Dumpty's assertion that, "When I use a word it means just what I choose it to mean" [Lewis Carroll, Through the Looking Glass, chapter 6, "Humpty Dumpty," (1871).]

Being lawyers, the justices’ logical analysis was not, in fact, that simple. Consider the case of Gitlow v. New York, 268 U.S. 652 (1925). Although the facts involve a fascinating bit of American history giving rise to New York’s punishment of Gitlow for his speech, we’ll jump to the Court’s reasoning. True, the words of the First Amendment don’t apply to New York. However, the words of the Fourteenth Amendment do: "nor shall any State deprive any person of life, liberty, or property, without due process of law." This led the Court to reason — or leap, as you may see it — to assert:
freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States. [268 U.S. 652, 666]
There you have it. The Bill of Rights, including the First Amendment, which are not, by their words, applicable to the states, are simply "incorporated" into the "due process" clause of the Fourteenth Amendment, which clearly is applicable to the states. ["Incorporation of the Bill of Rights,"]

And that is how the University of Iowa became "Congress," forbidden by the First Amendment to either "establish" a religion, or prevent a religion’s "free exercise."

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Some Newspaper Coverage and Related Matter

Naomi Hofferber, "UI expels Christian student club over leadership requirement," The Daily Iowan, December 12, 2017

Christian Legal Society v. Martinez, 561 U.S. 661 (2010)

” One Iowa Responds to Becket Fund’s Lawsuit Against the University of Iowa,” December 13, 2017;

Vanessa Miller, "Christian Organization: UI Ban Was Religious Bias; University of Iowa Dropped Student Group Over Its Treatment of Gay Member," The Gazette, December 14, 2017, p. A1;

Andy Davis, "Religious Liberty Case: Ousted Christian Student Group Sues UI," Iowa City Press-Citizen, December 14, 2017, p. A1;

Vanessa Miller, "Christian Organization: UI Ban Was Religious Bias; University of Iowa Dropped Student Group Over Its Treatment of Gay Member," The Gazette, December 14, 2017, p. A1

Andy Davis, "Religious Liberty Case: Ousted Christian Student Group Sues UI," Iowa City Press-Citizen, December 14, 2017, p. A1 Michael Fitzgerald, "Christian Group Banned For Kicking Out Gay Student Sues University of Iowa," Towleroad, December 15, 2017;

Vanessa Miller, "Rejected Christian student group wants to recruit at University of Iowa; Motion for injunction says campus recruiting fairs 'crucial' to its existence," The Gazette, December 20, 2017, p. A1

Jacob Estell, "Why Did UI Single Out Christian Group?" Des Moines Register, December 14, 2017 (also, Iowa City Press-Citizen: Jacob Estell, "Why Did UI Single Out Christian Group?" Iowa City Press-Citizen, December 20, 2017, p. A7)

Zachery Schmidt, "University of Iowa Derecognizes Christian Club Because of 'Sexual Moral Conduct' Rules for Leaders: Suit," The College Fix ("Your Right-Minded News and Commentry"), December 20, 2017

David Pitt, "Iowa lawsuit pits gay rights against religious freedom," Associated Press, January 15, 2018

Leigh Jones, "University of Iowa Forces Christian Group Off Campus," World Magazine, January 17, 2018 (with discussion of cases at UC Hastings Law School (5-4 U.S. Supreme Court, favoring school) and Vanderbilt University)

Vanessa Miller, "Federal judge presses University of Iowa on singling out religious student organization," The Gazette, January 19, 2018, p. A1

Vanessa Miller, "Judge Tells UI to Let Faith Group on Campus For Now; Business Leaders in Christ Was Banned For Bias Against Gay Student," The Gazette, January 24, 2018, p. A1 ("U.S. District Court Judge Stephanie Rose sided with Business Leaders in Christ in granting a temporary injunction, which — for now — reinstates the group’s status as a student organization and allows it to recruit at a fair in the Iowa Memorial Union. 'BLinC’s motion is granted based solely upon the university’s selective enforcement of an otherwise reasonable and viewpoint neutral nondiscrimination policy,' Rose’s order states.")

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Additional labels: religion, civil rights, human rights, LGBTQ, University of Iowa, Iowa City, Business Leaders in Christ, student organizations, Becket Fund for Religious Liberty, Hobby Lobby, Donors Trust, Charles Koch, David Koch, Christianity, Constitution, First Amendment, free exercise of religion, establishment of religion, public forum, limited public forum, Vanessa Miller

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