Religious people claiming they’re the victims of excessive secular-ism generally have about as much credibility as conservatives complaining about the liberal media. America has only a subculture of disbelief, inhabited by a small, maligned minority who probably have less influence on law and policy than marginalized left-wing magazines. Aspiring theocrats, like Supreme Court Justice Antonin Scalia, point to decisions prohibiting official postings of the Ten Commandments or the inclusion of “under God” from the Pledge as proof that courts are zealously keeping God out of government; but more often than not, God is invited in. The Supreme Court has approved the channeling of public funds to private sectarian schools, the Bush administration has been funding private sectarian social services, Congress is once again threatening to enact a constitutional amendment allowing official school prayer, and the president is described by the Washington Post as the new de facto leader of the Religious Right. Separation of church and state seems increasingly anachronistic (and “under God” is likely to be restored to the Pledge soon).
But like paranoids who are sometimes persecuted, religious people are, on occasion, deprived of their rights by those hostile to the tenets of their faiths. Consider opposition to conservative Christian student groups on liberal college campuses. At Rutgers University in New Jersey, the InterVarsity Multi-Ethnic Christian Fellowship (IVMECF) has been “de-recognized”—deprived of university funds and banned from campus facilities—because it persisted in selecting its leaders on the basis of their religious beliefs. According to IVMECF rules, “student leaders must seek to adhere to biblical standards and belief in all areas of their lives.” In other words, when leaders are chosen, no gays or lesbians need apply.
Gay rights activists and sympathizers may be outraged by this rule, but is hardly an unreasonable one for a sectarian organization. The Christian Fellowship would risk losing its sectarian character (or, shall we say, its soul) if leadership positions were open to people it considered heretics and sinners. Imagine the reaction of a secular humanist group to a rule requiring the admission of religious fundamentalists into leadership roles and you can empathize with the righteous outrage of a Christian group barred from selecting Christian leaders (according to its own vision of Christianity). Rutgers ought to respect the liberty of student groups to abide by their own ideals; instead, it is intent on imposing a preferred, communal ideal upon them. University administrators claim that the IVMECF rule requiring its leaders to profess particular religious beliefs violates university policy, which prohibits discrimination based on race, sex, sexual orientation, disability, or religious and political affiliation.
Liberals may applaud the application of this nondiscrimination policy to groups they consider homophobic, but civil libertarians will rightly condemn it. In the private sphere, people have a right to their prejudices, or preferences. First Amendment rights of association protect the prerogatives of any private group to discriminate in admitting people or selecting them as leaders. A pro-choice feminist group does not have to admit or agree to be led by anti-abortion activists; a group fighting for racial justice does not have to admit or agree to be led by White supremacists. The right to discriminate, on the basis of status or ideology, is what allows a private association to formulate its message, advance its mission, and preserve the freedom of conscience of its members.
The Supreme Court reaffirmed this principle only two years ago when it upheld the right of the Boy Scouts to ban openly gay members. In Dale v. Boy Scouts of America, the Court held the Scouts could not be subject to state anti-discrimination laws prohibiting the exclusion of gay people. Student evangelical groups should not be subject to anti-discrimination policies either and may not be subject to them at public universities, like Rutgers, which are bound by the First Amendment. The IVMECF has sued Rutgers and ought to prevail in court. (The lawsuit was filed with the assistance of the Foundation for Individual Rights in Education, on whose advisory board I serve.)
This case is unusual only because it has led to litigation. Similar disputes have erupted at other liberal campuses, including the University of North Carolina and Tufts University. But when challenged, the anti-discrimination police on public and private campuses have usually backed down and recognized the rights of student groups to choose their leaders and their ideologies. Private universities are only bound by the First Amendment morally, not legally, but they’re apt to be embarrassed when caught ignoring the principles that animate it.
Secularists, who are rarely shy about asserting their own First Amendment rights, should be angered when those rights are denied to others, regardless of their views. Minorities who have suffered historic discrimination—gay people, for example—should worry when any group’s associational rights are infringed. How would any civil rights movement progress if people lacked the autonomy to form their own associations, select their own leaders, and mold their own agendas according to their own beliefs? Atheists or agnostics who feel besieged by religious belief should still shudder when people are besieged for religious belief. Religious conservatives often forget that the liberty secured by the First Amendment necessarily protects freedom from religion. Liberals intent on promoting tolerance should remember that it protects freedom for religion as well.
Wendy Kaminer is a lawyer and social critic. Her latest book is Free for All: Defending Liberty in America Today.