Anti-discrimination laws impede First Amendment freedoms 

In the U.S. Supreme Court oral arguments in Christian Legal Society v. Martinez, two or three justices seemed baffled by the complexity of it all. But the issue is simple enough: Is it reasonable for a university to insist that campus Christian groups accept leaders or members who disagree with one or more of the groups’ basic principles?

Or to put it another way, shouldn’t all students have the right to form groups around shared beliefs without being punished or excluded from campus life?

Most campuses have anti-discrimination language, considered harmless when drawn up, saying that membership, benefits, and the election of officers cannot be biased on the basis of race, sex, handicap, age, sexual orientation, or political and religious affiliation.

“Political and religious affiliation” is rarely the sticking point, though the usual antidiscrimination language would require a Democratic club to allow a Republican president, a Jewish group to allow a Holocaust-denying president, and a Muslim group to accept a leader who believes in Christianity, animism or voodoo.

The only clubs or societies that seem to draw the wrath of college administrators are not flat-earthers seeking membership in a geography club, or whites demanding entry into an African-American society, but rather conservative Christian clubs under assault from gay groups and their allies. The real intention is to break or banish religious groups with Biblically-based opposition to homosexuality.

The primary lesson here is not that universities are torn between freedom of religion and anti-bias rules. Rather the lesson is that administrators are willing to respond to a powerful campus group, the gay lobby, at the expense of one that is weaker and usually disfavored on campus.

Though written in the bland language of brotherhood, antidiscrimination laws give critics of private groups “a public hammer with which to beat groups they oppose,” Richard Epstein, professor of law at the University of Chicago said in 2003.

Using a verbal screen of “diversity,” “fairness,” and “nondiscrimination,” university officials delegitimize religion by substituting campus orthodoxy for religious principles. Even if a university feels torn, its anti-discrimination rules shouldn’t trump the First Amendment’s protection of freedom of religion, association, and speech.

Anti-discrimination laws are in fact becoming a threat to these freedoms. The Supreme Court mustn’t flub this one.

John Leo is a senior fellow at the Manhattan Institute and editor of MindingTheCampus.com.

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