David Cortman

On college and university campuses around the country, officials are increasingly using “nondiscrimination” policies to deny religious groups the right to choose prospective members and leaders based on whether they share the group’s religious beliefs. In other words, laws that were originally designed to protect religious groups and persons from institutionalized discrimination are now being used to punish religious groups for exercising their religious freedoms.

San Diego State University is the site of the most recent clash between religious student groups and university nondiscrimination policies. SDSU’s policy prohibits discrimination in membership or leadership on the basis of “race, religion, national origin, ethnicity, color, age, gender, marital status, citizenship, sexual orientation, or disability,” but exempts all “social fraternities or sororities” from the prohibition on gender discrimination (an enormous exemption) and, most critically, allows non-religious groups to require their members and leaders to adhere to their beliefs.

So, SDSU’s policy allows a vegetarian club to refuse membership to meat-eaters and a Democrat club to bar Republicans from leadership, but requires religious student organizations to include members and leaders who disagree with their religious beliefs.

Relying on its policy, SDSU denied official recognition (and the critical benefits that come with recognition) to Alpha Delta Chi (ADX), a Christian sorority, and Alpha Gamma Omega (AGO), a Christian Fraternity. As the U.S. Court of Appeals for the Ninth Circuit put it, SDSU denied recognition to these groups because they share a “requirement that their members and officers profess a specific religious belief, namely, Christianity.” Denial of recognition imposes a huge burden on these groups. Without recognition, ADX and AGO cannot access the myriad channels of communication all other student groups use to promote their views and recruit new members. They can exist only informally, segregated from the vibrant communal life of campus clubs.

And the most critical point bears repeating. Under SDSU’s policy, all non-religious clubs may obtain recognition and require their members and leaders to share their non-religious beliefs. Only religious groups must choose between their beliefs and recognition.

David Cortman

David Cortman serves as senior legal counsel with the Alliance Defense Fund at its Atlanta Regional Service Center in Georgia, where he heads litigation efforts to defend and reclaim the First Amendment rights of public school students across the nation. Cortman joined ADF in 2005, and is admitted to the bar in Georgia, Florida, and the District of Columbia. He has practiced law since 1996 and graduated magna cum laude from the Regent University School of Law, where he earned his J.D.