Religion and Human Rights (29): When Freedom of Association and Anti-Discrimination Clash

In a recent court case in the US, a Christian student group objected to a university decision to withdraw recognition of the group. This withdrawal was justified by the university on the basis of the group’s discrimination of gays. Gays can only join the group when they “repent”. This policy by the group was deemed discriminatory by the university and in violation of its anti-discrimination policy. Withdrawal of recognition means that the group loses some subsidies and access to university resources, not that it has to cease to exist.

The group claimed that the university decision violated it’s freedom of association and freedom of religion. It also claimed that the university’s non-discrimination policy backfired and in fact created a new instance of discrimination, namely discrimination based on religion (because the group felt singled out; a Hispanic group excluding non-Hispanics did not suffer the same fate). The university contested this reasoning, claiming that the group was free to organize its activities elsewhere.

In my opinion, the Christian group is clearly bigoted and deserves condemnation for that, but groups should be free to decide who can and cannot become a member. And so there’s nothing wrong, in principle, with Christian groups banning gays. Forcing a group to accept members who violate the group’s fundamental rules and principles would empty freedom of association of any content because it would lead to the dissipation of the group’s identity. There is no group without identity, and hence no freedom of association without identity. And identity by definition means exclusion. Communist groups that are forced to accept capitalist members, or neo-Nazi groups that are forced to accept Jews, cease to exist as coherent groups. In case of religious groups, this would also violate the groups’ freedom of religion.

Also, the claim by gays that they are discriminated is weakened by the fact that they have numerous alternatives. It’s not like their non-membership of the Christian group produces a lot of harm to them, in terms of diminished choices, missed opportunities, lost resources etc.

An aside: I always fail to understand why people would want to join groups where they are manifestly unwelcome, except perhaps to cause a stir. Of course, this is no argument in favor or against any of the previous claims, except perhaps a pragmatic argument against the university’s position: if indeed gays will not join the anti-gay Christian group because they don’t have an incentive to associate with people who are hostile, then there’s no reason for the university to move against the group, since no discrimination will occur.

How is this different from what libertarians often claim about private discrimination? (Rand Paul for example recently claimed that the Civil Rights Act should not make “private segregation” illegal and should not force white restaurant owners to accept black customers). The difference is that segregation and Jim Crow were so widespread that blacks had considerably fewer options and suffered considerable disadvantage. The same isn’t true of gays on campus: there are enough associations that accept them. Hence, the discrimination that is imposed by the Christian group is real but not consequential enough to warrant a limitation of its freedom of association or religion.

Another argument in favor of the Christian group: non-discrimination policies have the laudable goal of promoting diversity and allowing every member of society to have the same options and choices. But how do you promote diversity if you don’t allow groups to have a coherent identity? And how do you promote options when you make it impossible for Christians to join a “truly” Christian group?

All this doesn’t mean that there will never be cases in which actions against groups are justified. In some instances, the demands of non-discrimination will outweigh the rights to freedom of association and religion. See here and here for more information on the need to balance different rights against each other.

15 thoughts on “Religion and Human Rights (29): When Freedom of Association and Anti-Discrimination Clash”

  1. My only problem with your argument is that there is nothing particularly Christian about homophobia. Christ speaks many times in the gospels (numbering in the thousands), and not once does he speak out against homosexuality. There is no basis at all for homophobia in the gospels, period. It’s a cultural thing, not a religious one, and therefore I can totally imagine a homosexual Christian wanting to join a campus Christian group. How better to open dialog about what it means to be Christian, and perhaps encourage some homophobic Christians to have a change of heart? Homophobia is NOT part of Christian identity. To imagine it is (and I know many do) is pure ignorance. Christ would be the first to accept homosexuals for who they are (as he accepted all those rejected by the majority), and not expect them to repent for how God made them.


  2. I think the main reason that the group was not recognized by the university is because the university did not want to be associated with such bigotry and certainly wanted to have no part in funding such bigotry. Why should the school have to subsidize such groups? I posit that they should not.

    It’s almost as if you assume that homosexuals can’t be Christian, when we know that’s not true. I don’t know the exact circumstances of the case, but suppose it’s the only Christian group on campus. Should it be okay for the group to bar a gay Christian from participating in worship, religious study, and so on?

    Your point on identity is well taken. However, if such group identities are decidedly contrary to school policy, then the university, which seeks to maintain its own identity, should have the right to not recognize such groups. I think it would be almost hypocritical (no, entirely hypocritical) for someone to argue that the university should be forced to accept groups with whom they disagree. Otherwise, the whole argument of freedom of association and identity falls apart.


    1. It would make a difference if it’s a private or public (i.e. government) university. I don’t know if you have the latter in the US. We do in Europe. A government university could not invoke its freedom of association to ban certain groups. A private one could, as you state. But perhaps government funding would annul that.

      Obviously I wouldn’t claim that homosexuals can’t be christian, or vice versa. But perhaps they would be different Christians who would feel more at home in another, more welcoming organization. If the “bigot Christians” are the only christian group on campus, why not create a second one?


  3. We do have public universities…all the state U’s are publicly funded (though students still have to pay a tuition…it’s less than the private ones). University of Florida, University of Virginia…etc.


  4. It seems the Supreme Court agrees with me on this position. The university, which is a public university, did not have to associate itself with a patently discriminatory group. I would actually says that’s a win for freedom of association advocates, as I mentioned previously. Here’s the story from the NYT:

    Justice Stevens said that, while the U.S. Constitution “may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them. . . other groups may exclude or mistreat Jews, blacks and women — or those who do not share their contempt for Jews, blacks and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.”

    I find that perfectly reasonable.


    1. Yes I read about it. It seems I glossed over a crucial distinction: getting yourself banned and losing subsidies. The latter isn’t a rights violations and that is what happened. The former would have been but that’s not what happened.


    1. By the way, I’m sticking to my guns on the importance of freedom of association, even for the bigoted, and I’m working on a longer post dealing with that. There have been several cases and discussions recently: CLS but also the revived discussion about title II of the Civil Rights Act instigated by Rand Paul; the Boy Scouts case etc. I want to offer a framework to deal with all cases involving a clash between the right to private discrimination in associations and the right not to be discriminated against.

      I’ll put up that post in the coming weeks when I’m back from vacation.


  5. Well, to be absolutely sure, I agree with you on the importance of freedom of association. That’s why I think the recent Court ruling is important. It said both CLS and the university have the right to freely associate, not just CLS. CLS still has the right to freely associate–just not the right to be subsidized.

    Civil Rights Act is a little more complicated, but I liked your previous post about Rand Paul. As for Boy Scouts, I also think they should have the right to discriminate (i.e. freely associate). But again, I don’t think they should be subsidized by the government, as they currently are, if they’re going to continue to discriminate.


  6. It seems to me that there is an important distinction between “public subsidy” and “access to funds that have been already charged.” At least in North Carolina, tax dollars do not go to pay for student unions, athletic fields, on-campus entertainment, etc. Instead, students are charged a variety of fees (“athletics fee”, “activities fee”, etc.) that go to support these non-academic parts of campus life. Every student pays these equally, regardless of whether or not they actually use the services or facilities. Justice Alito referred to a similar process at Hastings in his dissent: “[student organizations] may also apply for limited travel funds, id., at 7a, which appear to total about $4,000 to $5,000 per year —or less than $85 per registered group. Most of the funds available to RSOs come from an annual student activity fee that every student must pay.”
    So it seems to me that rather than posing the question as “should these groups have to conform to our standards to receive our largesse?” it should be posed as “should these groups have to conform to our standards to receive access to the services they have *already paid for*?”
    Public funds should not be used to support discriminatory organizations, IMO, but that is not what is going on in this case.


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