The Center for Law & Religious Freedom

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The Assault on Pluralism

by Kim Colby - Senior Counsel, The Center for Law & Religious Freedom

Senior Counsel Kim ColbyVanderbilt’s Eviction of Religious Belief

For fifty years, the Christian Legal Society has defined itself by a statement of faith, simple words that express core Christian beliefs. Intentionally broad, CLS’s statement of faith declares central beliefs that Christians from diverse faith backgrounds would be expected to share. The purpose is to unify Christians in the law, not divide.

But statements of faith have gone out of fashion. As Justice Kennedy admonished in his concurrence in CLS v. Martinez (2010),“The era of loyalty oaths is behind us.”1 Justice Kennedy himself, of course, as a federal judge, has sworn an oath of loyalty to the Constitution. And nearly every Supreme Court session begins with several attorneys taking a loyalty oath to the Constitution in order to gain admission to the Supreme Court Bar. Conflating loyalty oaths and the 2000 year-old Christian practice of defining its community around a statement of faith, Justice Kennedy has declared that loyalty oaths, statements of faith, whatever, are passé.

The one acceptable truth, according to the current elite, is that truth is nonexistent -- or truth is relative – or truth is individually determined. Select your personal preference, but only one of these statements can be true, if they are not all false. Right and wrong are quaint anachronisms. Moral standards are simply religious repression to be resisted -- until the promising young congressman sends one too many self-photos. Then our society re-discovers truth, right and wrong, and moral standards -- at least for a week. Truth is then conveniently re-shelved until needed again.

And so we come to Vanderbilt University, a respected private university that has decided that religious belief has overstayed its welcome on its campus. In the fall of 2010, a Christian fraternity allegedly expelled a member for homosexual practices in violation of the fraternity’s code of conduct for its members.

In response, Vanderbilt deleted language protecting “religious association” from its own nondiscrimination policy. It then instituted a postmodern witch hunt for all student organizations that were “discriminators.” The usual suspects were rounded up: the CLS chapter, an InterVarsity affiliate, and the Fellowship of Christian Athletes, among others. Each re-submitted their constitutions, adding the changes they could in good conscience make. Nonetheless, they were placed on “provisional” status until they cave to the university’s demands.

And what are those demands? In a remarkable email to CLS dated August 9, 2011, the university determined that CLS’s constitution could not be approved because it requires its student leaders to affirm its statement of faith. According to the university, “Vanderbilt’s policies do not allow any student organization to preclude someone from a leadership position based on religious belief.”

Nor do CLS’s transgressions end with its statement of faith requirement. The CLS student constitution observes that “[e]ach officer is expected to lead Bible studies, prayer and worship at Chapter meetings as tasked by the President.” This too is forbidden because, according to the university, “[t]his would seem to indicate that officers are expected to hold certain beliefs. Again, Vanderbilt policies do not allow this expectation/qualification for officers.”

In a country founded and constantly replenished by immigrants seeking religious freedom, a highly respected university is expelling religious groups from campus because they have the audacity to insist that their leaders must share their core religious beliefs. And all of this is done in the name of “nondiscrimination.” Nondiscrimination policies serve vital purposes. But to use a nondiscrimination policy that is intended to protect religious students to penalize those students mocks nondiscrimination policies and the essential good they serve.

The CLS student chapter has stood fast.Its faculty advisor has passionately and courageously expressed her views in the media. The student president of the College Republicans has been outspoken in his support of his fellow students. Hundreds of Vanderbilt alumni have written the chancellor and the board of trustees to express their dismay at their alma mater’s insensitivity to religious liberty.

Other religious groups have rallied against the policy. Despite having university approval to meet, the Vandy Catholics have organized prayer vigils on campus. The Catholic chaplain has eloquently told the administration that the new policy is incompatible with the university’s approval of the Catholic student group, which may have to leave campus if the new policy is not reversed. The United States Conference of Catholic Bishops, the Southern Baptist Commission on Ethics and Religious Liberty, and the National Association of Evangelicals joined a letter urging the university to reconsider its intolerance.

The outcry is not limited to the religious community. In a letter to the chancellor, twenty- three members of Congress condemned the university’s stance. Numerous commentators have derided the policy, including George Will. Charles Haynes, a nationally syndicated columnist who is affiliated with the First Amendment Center, which has an office on theVanderbilt campus, has expressed his support for the religious groups. A nonpartisan, pro-speech group that monitors campus freedom, the Foundation for Individual Rights in Education (“FIRE”), protested Vanderbilt’s assault on students’ freedom of speech and association.

A national conversation about the future of religious liberty and pluralism in America has been triggered by Vanderbilt’s treatment of religious student groups. If, on pain of banishment from campus, religious groups must forfeit their right to have religious leaders, our culture’s respect for religious liberty is lost. But equally importantly, our nation’s commitment to pluralism is lost. The university’s relentless secularization of the marketplace of ideas is fundamentally incompatible with both religious liberty and pluralism.

An Intervarsity staffer at Vanderbilt, Trish Harrison Warren, wrote a thoughtful plea for pluralism and religious liberty for the student newspaper, in which she warned:

The tragedy of removing some religious organizations from campus would not be merely the loss of religious liberty, an enormous and embarrassing loss indeed, but also the tacit admission by the administration that pluralism is not, in the end, a possibility. It’s an admission that, at the end of the day, the university must ask student communities to surrender their particularities to guard against controversy and debate.  Our social responsibility in a diverse university is to protect and preserve ideas, not only one’s own ideas or popular ideas, but all ideas that are peacefully and thoughtfully expressed. I’ve seen this lived out beautifully these past months as students and campus chaplains, despite real differences in belief and practice, have met, dialogued and sought together to preserve liberty on campus for all student groups. This is the promise of pluralism — that communities can have opposing ideologies, yet not silence one another, but instead learn to live as neighbors and, more radically, as friends.2

Allowing religious student groups to maintain their unique religious identities promotes a healthy intellectual, social, and religious diversity on campus. Vanderbilt is not simply silencing religious voices, but also reasonable voices that call upon the university to practice the tolerance and diversity that it preaches, if only for the sake of American pluralism.

The Brave New World of Bronx Household of Faith

The use of nondiscrimination policies to bludgeon pluralism and religious liberty is not limited to the college campus. In a petition for certiorari now before the Supreme Court, the Second Circuit upheld New York City’s Board of Education’s denial of a church’s request to use a middle school on Sundays, just as other community groups could use school facilities outside of school hours. In dicta, the court suggested that the church could be excluded because it denied Communion to unbaptized persons.3

The case began in 1995 when the Board of Education refused a New York City church, Bronx Household of Faith, access based on the Board’s written policy at the time that prohibited access for “religious services or religious instruction,” although the policy allowed “discuss[ion of] religious material or material which contains a religious viewpoint.”4 The Board, then and now, ignored the Supreme Court’s 1981 Widmar decision that held that religious worship is a form of speech and association protected by the First Amendment.5

Nor is this the first instance in which Second Circuit judges have refused to heed Supreme Court precedent protecting religious speech. In its 2001 Good News Club decision, the Supreme Court majority reprimanded the Second Circuit for ignoring its 1993 Lamb’s Chapel decision.6

In both Lamb’s Chapel and Good News Club, the Supreme Court reversed Second Circuit rulings that upheld a school district’s denial of access to a religious community group. Both times, the Supreme Court rejected the districts’ worn arguments that the Establishment Clause justified their exclusion of discussions from a religious viewpoint or religious instruction.

Each time, the Supreme Court rejected the Second Circuit’s ultra-fine line-drawing between religious speech and, well, “other” religious speech. Remarkably, in the latest iteration of the Bronx Household case, the fourth published Second Circuit opinion in the case’s sixteen year lifespan, the Second Circuit concedes that religious speech, religious instruction, religious discussions, and religious worship cannot be excluded from public property, but insists that “religious worship services” can be.7

Even more troubling than imaginary line- drawing and Establishment Clause misuse are the irrational arguments advanced by the school districts or the courts. For example, in Lamb’s Chapel, the school district informed the Supreme Court that it denied “use of its property to a ‘radical’ church for the purpose of proselytizing, since to do so would lead to threats of public unrest and even violence,” an argument the Court rejected.8 In Good News Club, the Second Circuit discerned that the “’Christian viewpoint’ is unique . . . because it contains an ‘additional layer’ that other kinds of viewpoints do not,” again an argument the Court rejected.9

Similarly, in Bronx Household, the Second Circuit mystically explains that a “worship service is an act of organized religion that consecrates the place in which it is performed,making it a church.”10 But the Establishment Clause would collapse under the weight of such a legal standard. National cemeteries are not churches even though religious worship services occur on a daily basis. Yellowstone National Park does not morph into a church because religious worship services occur regularly in its campgrounds to accommodate travelers. Nor does an aircraft carrier become a church because its chaplains regularly hold religious worship services for the sailors.

Yet another Second Circuit argument is sobering and brings us full circle to the use of nondiscrimination principles to exclude religious groups from public spaces. Twice the Second Circuit has floated the suggestion that the Board of Education use the specter of discrimination to justify its exclusion of religious groups. As the Second Circuit has explained,“the religious services Bronx Household conducts in the school are not open on uniform terms to the general public. Bronx Household acknowledges that it excludes persons not baptized, as well as persons who have been excommunicated or who advocate the Islamic religion, from full participation in its services.”11 And what exactly does the Second Circuit mean by “full participation in its services?” One judge wrote more bluntly in his 2007 concurrence, identifying three separate measures by which Bronx Household was insufficiently inclusive. First, church members who “publicly advocat[ed] the Islamic religion” might be excommunicated. Second, “people who have not been baptized” could not receive Communion. Third, there “may be a substantial question whether Bronx Household’s meetings are truly ‘open’ to people who reject Christianity.”12 The irony of religious groups being excluded in the name of inclusion hardly impedes the court’s desire to be of assistance in excluding the church.

Will Justice Kagan Be Justice Brennan 2.0?

The United States Solicitor General recently adopted a miserly view of the First Amendment’s protection of religious liberty in the Hosanna-Tabor case.13 There a church dismissed a teacher, who was credentialed as a minister by the church, from its religious school because, in the church’s view, she had violated church doctrine. The teacher and the government claim she was terminated in retaliation for asserting rights under federal law prohibiting disability discrimination. The church invoked the “ministerial exception,” a forty year-old doctrine adopted by federal judges to avoid violating churches’ First Amendment protections when ministers claim that their employment decisions violate discrimination laws.

Try as it might, the United States Government was unable to find protection for churches’ employment decisions in the Free Exercise or Establishment Clauses (except possibly against a remedyofreinstatement). Atoralargument,Justice Kagan found it “amazing” that the government thought that “neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.”14 While Justice Kagan recently showed herself to be a strict separationist in the Establishment Clause context of standing,15 hope remains that she will be sensitive to religious liberty when free speech and free exercise rights are at stake. She may take counsel from the late Justice Brennan’s example. While sometimes overly strict in his Establishment Clause approach, he frequently championed a religion-friendly application of the Free Exercise, Free Speech, and Establishment Clauses.16

In another opportunity to learn more about Justice Kagan’s views, the Court will consider a petition for certiorari to review the recent Ninth Circuit decision in Alpha Delta Chi-Delta Chapter v. Reed.17 There the Ninth Circuit acknowledged that in Martinez, the Supreme Court avoided the question whether a public university could apply a nondiscrimination policy to prohibit a religious group’s requirement that its leaders and members affirmitsreligiousbeliefs. Fourjusticeswouldhave decided the issue in favor of the religious groups and found that application of a nondiscrimination policy to restrict religious groups’ ability to choose their leaders violated the First Amendment. Only one justice, now retired Justice Stevens, stated that such a troubling application of a nondiscrimination policy was permissible. The remaining four justices explicitly stated they were not addressing that question.

Despite its acknowledgement that Martinez did not mandate its result, the Ninth Circuit went ahead to conclude that a public university could exclude religious groups from campus because they required their officers and members to agree with their religious beliefs. The case, however, was remanded to determine whether the policy had been applied to other student groups and not just religious groups.

Judge Ripple, sitting by designation from the Seventh Circuit, brilliantly elucidated the error of the majority’s reasoning when he wrote:

Most groups dedicated to forwarding the rights of a “protected” group are able to couch their membership requirements in terms of shared beliefs, as opposed to shared status . . . . Religious students, however, do not have this luxury—their shared beliefs coincide with their shared status. They cannot otherwise define themselves and not run afoul of the nondiscrimination policy... The Catholic Newman Center cannot restrict its leadership—those who organize and lead weekly worship services—to members in good standing of the Catholic Church without violating the policy. Groups whose main purpose is to engage in the exercise of religious freedoms do not possess the same means of accommodating the heavy hand of the State.  The net result of this selective policy is therefore to marginalize in the life of the institution those activities, practices and discourses that are religiously based. While those who espouse other causes may control their membership and come together for mutual support, others, including those exercising one of our most fundamental liberties — the right to free exercise of one’s religion — cannot, at least on equal terms.18

Judge Ripple’s opinion neatly supplements Justice Alito’s explanation in his Martinez dissent as to why a wooden application of nondiscrimination policies to religious groups’ leadership decisions is viewpoint discrimination and violates the groups’ freedom of speech. 19

From New York to Nashville, a national conversation intensifies regarding our society’s commitment to religious liberty and pluralism. Friends of religious liberty need to engage in the conversation and educate the legal and educational elite as to why religious groups must be free to choose their leaders, why religious liberty is essential to a pluralistic society, and why pluralism itself is indispensable to a free society. To remain silent now is to risk being silenced indefinitely.


Kim Colby has worked for the Center for Law and Religious Freedom since graduating from Harvard Law School in 1981. She has represented religious groups in numerous appellate cases, including two cases heard by the United States Supreme Court, as well as on dozens of amicus briefs in federal and state courts. She was involved in congressional passage of the Equal Access Act in 1984.



1 Christian Legal Society v. Martinez, 130 S. Ct. 2971, 3000 (2010) (Kennedy, J., concurring).

2 Trish Harrison Warren, The Possibility of Pluralism – Faith and Diversity at Vanderbilt, The Vanderbilt Hustler, Oct. 2, 2011, avail- able at (last visited November 17, 2011).

3 Bronx Household of Faith v. Bd. of Educ. of NewYork City, 650 F.3d 30, 43 (2d Cir. 2011).

4 Bronx Household of Faith v. Community Sch. Dist. No. 10, 1996 WL 700915, *1 (S.D.N.Y. 1996).

5 Widmar v.Vincent, 454 U.S. 263, 269 (1981).

6 Good News Club v. Milford Central School, 533 U.S. 98, 109 n.3 (2001), citing Lamb’s Chapel v. Center Moriches Union Sch. Dist., 508 U.S. 384 (1993).

7  Bronx Household of Faith v. The Bd. of Educ. of City of New York, 650 F.3d. 30, 38 (2d Cir. 2011) (“Similarly, SOP § 5.11 prohibits use of school facilities to conduct worship services, but does not exclude religious groups from using schools for prayer, singing hymns, religious instruction, expression of religious devotion, or the discussion of issues from a religious point of view.”)

8  Lamb’s Chapel, 508 U.S. at 395-96.

9  Good News Club, 533 U.S. at 111, quoting Good News Club v. Central Milford School, 202 F.3d 502, 509 (2d Cir. 2000)


10 Bronx Household, 650 F.3d at 45; id. at 41 (“When worship ser- vices are performed in a place, the nature of the site changes. The site is no longer simply a room in a school being used temporarily for some activity.The church has made the school the place for the performance of its rites.”)

11 Id. at 43, citing Bronx Household III, 492 F.3d at 120 (Leval, J., concurring); cf. Christian Legal Society v. Martinez, 130 S. Ct. at 2995 (upholding university’s denial of Registered Student Organization status to student group that refused to comply with non-discrimination policy for ideological reasons).

12 Bronx Household III, 492 F.3d at 120 (Leval, J., concurring).

13  Hosanna-Tabor Evangelical Lutheran Church v. EEOC, cert. granted, 131 S. Ct. 1783 (March 28, 2011) (No. 10-553). The Solicitor General’s brief for respondent EEOC is at 2011 WL 3319555.

14  OralArg.Tr.at38,availableat oral_arguments/argument_transcripts/10- 553.pdf .

15 ArizonaChristianSchoolTuitionOrganizationv.Winn,131S.Ct. 1436, 1450 (2011) (Kagan, J., dissenting).

16 See, e.g., Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 340 (1987) (Brennan, J., concurring); McDaniel v. Paty, 435 U.S. 618, 629 (1978) (Brennan, J., concurring).

17 648 F.3d 790 (9th Cir. 2011).