Thursday, August 31, 2006

A Judicial Precedent for Georgetown Protestants

As an alumnus of Georgetown University, my eye is often drawn to stories about the school, especially when they appear somewhere besides the sports pages. (Georgetown, I gather, has historically had a pretty good basketball program -- not that I've paid much attention.)

So when the Washington Times and Washington Post both reported last week that the University had effectively banned Protestant organizations that are not affiliated with the official campus ministry from operating on campus, my interest was piqued.

Michelle Boorstein reported last week in the Post:

Protestant groups that have been ministering to Georgetown University students on campus for years say they are stunned that the Catholic university has decided to eject outside ministries from campus, a decision that affects only Protestant organizations.

Georgetown's Protestant chaplaincy, part of the office of Campus Ministry, told the six outside Protestant groups Aug. 17 that they would no longer be allowed to reserve rooms for weekly meetings, use Georgetown's name or organize on campus without an invitation from a student. Between 100 and 300 students are active in the groups, which include Chi Alpha Christian Fellowship and InterVarsity Christian Fellowship, national organizations.

Reporters Gary Emerling and Michael Hunsberger explained in the August 26 edition of the Washington Times:
In a letter last week to leaders of the campus's Affiliated Ministries, the Rev. Constance C. Wheeler, a Georgetown Protestant chaplain, said that "as a result of our new direction for the upcoming academic year, we have decided not to renew any covenant agreements" with the groups.

The decision -- which affects a few hundred students belonging to six Christian groups -- forbids the ministries from having any "activity or presence" on campus, including worship services, retreats or helping students move into their dorms.

The groups also are prohibited from using the Georgetown name in publicity.
While the initial news articles indicated that members of the affected organizations were "stunned" (as the Post reported) and disappointed, today's papers suggest that the situation has escalated and the groups are seeking redress.

The headline on Gary Emerling's article in Thursday's Washington Times, "Barred ministries push back," tells the story succinctly. His article begins:
Members of several outside Protestant ministries recently barred from the campus of Georgetown University yesterday began a petition drive appealing the decision by school administrators.

"We're not trying to be hostile in any way," said Matt Bjonerud, a Georgetown senior and a leader of InterVarsity Christian Fellowship, one of six ministries banned from having an official presence at the Catholic school. "We're simply letting people know we think we're an important and vital part of the Georgetown community."

About 15 members of affected ministries -- all Protestant groups, although some, such as InterVarsity, also have Catholic members -- began passing out fliers to students in Georgetown's Red Square at 10 a.m. yesterday, the first day of classes.
Similarly, Michelle Boorstein's follow-up article in Thursday's Post notes:
... students and officials with the private ministry groups said the Campus Ministry in recent years has become more controlling and concerned about evangelizing. The groups were required to sign statements saying they would not proselytize, said Kevin Offner, who runs the InterVarsity group at Georgetown for graduate students.

InterVarsity has retained the services of a legal center that works to protect the on-campus rights of evangelicals. David French, who runs the Center for Academic Freedom, said yesterday that in recent years, "dozens of schools" across the country have tried to eject private evangelical groups that have conservative views on social issues.
If the evangelical students do take recourse to the courts, they may find a precedent to assist them -- if they choose to invoke it.

Nearly 20 years ago, in a decision handed down from the Court of Appeals for the District of Columbia, Georgetown was admonished for failing to provide equal access to gay and lesbian students' organizations. As explained by Lawrence Biemiller in the Chronicle of Higher Education on August 7, 1985 ("Homosexual Groups at Georgetown U. Get Court Backing"):
A three-judge panel of the District of Columbia's Court of Appeals last week reversed a trial court's ruling and ordered Georgetown University to grant official recognition to two organizations for homosexual students.

The judges, citing the Supreme Court's 1983 decision in Bob Jones University v. United States, ruled that the District's 1977 Human Rights Act established an "overriding governmental interest" in ending discrimination against homosexuals that is strong enough to justify some infringement on the Roman Catholic university's religious freedom. Georgetown had argued that granting recognition to the two groups might be interpreted as an endorsement of homosexual activity, which Catholic doctrine prohibits.
The panel's decision was later upheld by the full Court of Appeals, in a 5-2 decision issued on November 20, 1987. The case is cited frequently in legal scholarship as Gay Rights Coalition v. Georgetown University – 536 A. 2d 1 (D.C. App. 1987).

In his Chronicle of Higher Education article, Biemiller quotes the panel's majority opinion:
Further undermining Georgetown's case, the panel said, were the university's previous decisions to grant recognition to other student groups whose philosophies or activities at times contradict Roman Catholic doctrine, including the Jewish Students Association and the Women's Rights Collective, which has distributed literature on birth control and abortion.

The university had argued, the judges said, that the city government was unconstitutionally prohibited from infringing on "the university's right to interpret -- and apply -- its religious tenets as it sees fit, however illogical its religious line-drawing may appear to others."

"While we agree," the opinion continued, "that it is not for this court to interpret the Catholic faith -- nor are we doing so -- we cannot agree that Georgetown's particular application of unquestioned religious tenets has absolute priority here."

"A balancing test," the judges said, "is still required -- one that does not merely pit the District against Georgetown but, more broadly, accounts for the conflict of individual rights at issue here." Were the university to prevail in the case, they said, "the district's interest in enforcing nondiscriminatory treatment under the [Human Rights] Act on behalf of an ostracized class of individuals would be wholly frustrated."
Whether the evangelical students and off-campus groups constitute "an ostracized class of individuals" in this case is a question for another day. But it should not go unnoted how many different categories are covered by the D.C. Human Rights Act, which begins:
It is the intent of the Council of the District of Columbia, in enacting this chapter, to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, and place of residence or business. [emphasis added]
Georgetown University chose not to appeal the November 1987 decision, although many expected -- and others urged -- an appeal to the U.S. Supreme Court. Father Timothy S. Healy, S.J., who was then the university's president, sent a letter to alumni and faculty explaining the board of trustee's decision not to appeal, which was quoted in an article in the National Catholic Register (May 15, 1988):
"[The] Appeals Court had granted us what we claimed was our principal interest, the freedom to refuse official recognition to these groups."

Healy said in his letter that the board determined its case was very weak, and therefore decided not to appeal to the Supreme Court.

"In order to make a successful appeal, we were advised that we would have to attack the statute itself [a District of Columbia ordinance called the Human Rights Act], as well as plead our right of free exercise and free speech," Healy wrote. "The board felt that a Catholic institution would have difficulty attacking the statute, which, while it was perhaps over-inclusive, at the same time addressed a real problem and constituted a reasonable exercise of the District's police powers."
So it seems the evangelical groups might have a case based on Gay Rights Coalition v. Georgetown University. I would add a couple of caveats, however.

One is that, in reaction to the Georgetown case, Congress passed what is known as the "Armstrong Amendment" (named for its principal sponsor, then-Colorado Senator William Armstrong), which forced the D.C. Council to amend the Human Rights Act to exempt religious and political institutions from certain aspects of the Act. The clause that was added because of the Armstrong Amendment reads:
Nothing in this chapter shall be construed to bar any religious or political organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious or political organization, from limiting employment, or admission to or giving preference to persons of the same religion or political persuasion as is calculated by the organization to promote the religious or political principles for which it is established or maintained.
Now, the exemption was intended to let anti-gay discrimination continue, but it equally applies to "religion or political persuasion."

I should note that Georgetown decided, despite the change in the law, to continue to grant equal access to gay students organizations, which operate openly to this day. On the main campus, the name of the undergraduate LGBTQ group is now GU Pride. So far as I know, the gay students -- as individuals and as organized groups -- are fully integrated into campus life and their presence is barely noted, and hardly the stuff of newspaper headlines, as they were in the 1970s and 1980s.

My second caveat relates to the U.S. Supreme Court's 2000 decision in Boy Scouts of America v. Dale (which I have written about in the past). To summarize very roughly, the Dale decision says that organizations may discriminate against those whose viewpoints differ from their own. (In this case, the Boy Scouts expelled an openly gay Scoutmaster, who sued to be reinstated and eventually lost his suit.)

Put together, the Armstrong Amendment and the Dale decision may override the Gay Rights Coalition v. Georgetown University precedent, which therefore may not be helpful to the evangelical students and their outside organizations.

Still, I relish the possibility of evangelical Protestants citing a case that benefited gay and lesbian students as a reason to overturn Georgetown's decision to bar their activities on campus.

1 comment:

Tim said...

Well, at least no Orange Riots.