*1 GAY RIGHTS COALITION OF
GEORGETOWN UNIVERSITY LAW al.,
CENTER, Appellants, et Columbia,
District
Intervenor-Appellant, UNIVERSITY,
GEORGETOWN et
al., Appellees.
Nos. 84-51. Appeals.
District Columbia Court of
Argued en banc Oct. 1985.
Decided Nov. *3 Dolkart, A. Zavos and Jane L.
Michele D.C., Washington, curiae filed amicus Fund, Legal Defense brief for the Women’s Equal Rights, Center Constitutional Lesbian Rights Advocates and Project, George Neuborne, Law Ass’n for Women of Burt City, New York and Gil- Washington University, Nat. Women’s Po- Gaynor, bert filed an amicus curiae brief Caucus, Opportunities litical Wider Union, for the American Civil on Liberties Women, and Women’s Law Collective of appellants. behalf of Columbus School of Law at Catholic Univ- Douglas Jewett, Seattle, City Atty., N. ersity, appellants. on behalf of Wash., Kiner, and Marlaina Director of Hu- D.C., Spitzer, Washington,
Arthur B. Rights, man filed an amicus curiae brief brief, filed an amicus curiae on behalf of Seattle, City Washington, for the appellees. appellants. behalf of Hoffman, City,
Elliot P. New York filed Ogletree, Charles J. filed an amicus curi- an amicus curiae brief for the Nat. Jewish ae brief for Div. Indi- 5: Criminal Law and (COLPA), Com’n Law Public Affairs vidual of the District of Columbia appellees. on behalf of Bar, appellants. on behalf of *4 Biondi, Herge George J. Curtis and V. Rubenfeld, Nashville, Tenn., Abby R. McLean, Va., filed an amicus curiae brief filed an amicus curiae brief for the Lambda Freedom, Religious for the Coalition for on Fund, Legal Defense & Educ. on behalf of appellees. behalf appellants. Gross, Richard A. with whom John F. PRYOR, Judge, Before Chief and D.C., Daly, Foggan, Washington, Laura A. MACK, NEWMAN, FERREN, BELSON Bogard, Ronald E. City, New York TERRY, Judges, Associate brief, Jennings, appel- J. Carol were on for NEBEKER,* Judge, Associate Retired.
lants. Wilson, H. Charles with whom Vincent J. MACK, Judge: Associate Fuller, Preiss, Nancy F. and James C. Columbia, In the District of the Human brief, Gregg, D.C., Washington, were on Rights prohibits Act an educational institu- appellees. for against discriminating any tion from indi- Prager, Deputy Lutz Alexander Asst. vidual on the basis of his or her sexual Counsel, Reid, Corp. with whom Inez Smith gay rights student orientation.1 Two Corp. Counsel at the time the brief was groups contend that Universi- filed, Suda, Principal Deputy Corp. John H. ty statutory this command re- violated Counsel, filed, at the time the brief was fusing grant “University Recogni- them Reischel, Corp. Deputy and Charles L. together equal tion” access to the Counsel, D.C., brief, Washington, were on additional facilities and services that status intervenor-appellant. for University, relying the tri- entails. The on Madison, Wis., Shelley Gaylord, finding George- court’s factual J. filed al grant “University Recognition” an amicus curiae brief for the Governor’s town’s Issues, religiously guided “endorse- Gay Council on Lesbian and State includes Wisconsin, recipient group, student re- appellants. on behalf of ment” *Judge physical handicap any or individu- Nebeker was an Associate of this income al_ argument. court at the time of His status [Emphasis added.] Retired, changed Judge, Septem to Associate provides: Section 1-2501 ber Council of the District It is the intent Columbia, enacting chapter, to se- (1987) provides: 1. D.C.Code 1-2520 § District of Columbia to cure an end in the discriminatory practice It is an unlawful any other than that for reason discrimination ... an educational institution: merit, including, but not limited of individual to, (1) restrict, deny, abridge To or to or condi- by reason of char- [various discrimination of, to, any tion the use or access of its facili- including sexual orientation]. acteristics any person qual- ties and services to otherwise (28) provides: Section 1-2502 ified, whotly partially, discriminatory male or female orientation" means "Sexual reason, race, color, religion, upon based heterosexuality homosexuality, bisexuali- sex, status, origin, age, per- national marital practice. ty, by preference or orientation, appearance, family sonal sexual affiliation, responsibilities, political source sponds that the Free Exercise Clause of sexual orientation violated the Human protects the First Amendment it from offi- Rights only, Act. To that con- extent we compulsion cial organiza- to “endorse” an Georgetown’s sider the merits of free exer- challenges tion which tenets. cise defense. On that issue hold we Upholding the asserted constitutional de- compelling the District of Columbia’s inter- fense, judgment the trial court entered in est in the eradication of sexual orientation Georgetown. favor of groups outweighs discrimination any burden im- appeal. posed upon Georgetown’s exercise of reli- analysis Our gion by the issues equal provision tangi- differs from the forced outset, that of the trial court. At the we ble benefits. sever the artificial connection between the Thus, statutory rather than constitu- “endorsement” and the benefits grounds, tional we affirm the trial court’s Georgetown’s contained in scheme of grant conclusion that need not “University Recognition.” respect With “University Recognition” thereby to—and University’s grant refusal to the status groups. “endorse”—the student The Hu- “University Recognition,” we do not Rights does, man however, mandate Georgetown’s reach constitutional defense. the student given equal Contrary to the trial understanding, court’s access additional “facilities and ser- the Human require Act does not one triggered by vices” George- that status. private actor Thus, to “endorse” another. town’s asserted free exercise defense does Recog- denial of “University overcome the Human Act’s edict nition”—in this case carrying a status *5 tangible the benefits be distributed intangible “endorsement” —does not violate regard without to sexual orientation. We the Although statute. affirming the trial part, affirm in part, reverse in and order entry judgment court’s for the Universi- judgment the trial court to according- enter
ty point, on that we do statutory so on ly.2 rather than grounds. constitutional We contrary reach a conclusion with re- spect tangible to the accompa- benefits that
ny “University Recognition.” the While FACTUAL BACKGROUND Human compel does not seek to uniformity philosophical by attitudes A. Georgetown University law, force require it does equal treat- year In the in which the Constitu- Equality ment. treatment education- tion govern- was ratified and the federal al concretely institutions is measured created, Georgetown University ment was nondiscriminatory provision of access to Carroll, established. Its founder was John “facilities and services.” D.C. Code priest, George a Jesuit a friend of Wash- (1987). 1-2520 Unlike the “endorse- § later, ington Baltimore, Bishop and as ment,” the various additional bene- prelate the first Roman Catholic in the accompany grant fits that a declared, academy,” nation. “On this he Recognition” are “facilities and services.” my hope flourishing “rests all for the such, they As equally must be made avail- religion in holy our the United States.” able, regard without to sexual orientation Georgetown College, In as it was to other characteristic unrelated to known, formally then committed to the individual merit. refusal to was provide tangible regard guidance Society of the of Je- benefits without control and Mack, Newman, Judge Pryor Judges compelling 2. Chief interest in the eradication of bia's agree requires Belson and Nebeker Rights Human the discrimination sexual orientation require Georgetown grant Act does not religious objection, Georgetown, despite its particular "University Recognition" its form of obey the Human Act’s mandate that issue, groups. to the student On that the trial equal tangible University provide benefits to the However, judgment court's is affirmed. Chief issue, groups. trial court’s On that Mack, Newman, Judge Pryor Judges Ferren judgment is reversed. Terry conclude that the of Colum- District 1815, Congress general In understanding sus.3 bestowed on the was that Georgetown College University university Society first of Jesus owned the granted by president property.” year, charter be federal In that 1, 1815, government. University Act of March Stat. and directors of signed by signed This charter was agreement James with its Jesuit Com- president munity. Madison as of the United exceptions, States. With a few the Jesuits Holy By George- relinquished rights University decree of the See their College given property. town was the status of They also undertook to make University. grant This periodic University. Pontifical from the contributions to the Pope empowered University provisions agreement to confer Other of the 1969 highest degrees in sought “guarantee ecclesiastical Philos- the continued and ophy Theology. presence George- day, and Sacred To this effective of the Jesuits at Among University.” one of two uni- town these were remains promises by Community the Jesuit to make versities the nation with this distinction. services, themselves available for Georgetown College incorpo- In was teaching positions, residential duties and special Congress. rated Act of Act of steps highly and to take to ensure that 10, 1844, June 6 Stat. 912. Its charter was qualified members of their order be as- operate in 1966 amended to allow it to as a signed campus community. nonprofit corporation adopt and to agreement specified desirability, “in or- Georgetown University. name Act of Oct. preserve der the Jesuit traditions Pub. L. No. 80 Stat. 877. Georgetown University,” that the Universi- Today, approaching the bicentennial it ty president Society. be member shares with the ratification of our Constitu- ranks, confining deanships Without to their tion, college Carroll founded on the agreed “qualified it was members of private, is major banks the Potomac Society regularly ap- of Jesus will be university co-educational and the oldest Ro- positions may pointed to such of those higher learning man Catholic institution of practical.” University The office of con- the United States. Its enrollment Chaplain was reserved for a Jesuit. 10,000 roughly sists of students in several *6 agree- Healy, of President the 1969 words undergraduate, graduate professional and understanding represented ment a “clear Georgetown University schools. also runs University keep continue to that the hospital sponsors institutes research very Society close affiliation with the of and other educational endeavors. Jesus, guarantee presence at the their Georgetown’s Religious B. Tradition meaning University guarantee and to Through growth, two centuries of University in that have Jesuit terms Georgetown University guided by has been up contract was existed until that formal founder, religious hope of its John Car- drawn.” presidents have forty-six roll. All of its through- Healy testified that President clergymen. four been Roman Catholic On Georgetown has invari- out its existence occasions, University has headed been Roman Catholic ably defined itself as a by bishop. particular, Georgetown In perception This is illustrated institution. relationship has with the continued a close opening under- by some of the words excep- Jesuits. Since about without graduate “Georgetown is commit- bulletin: tion, filled the members of that order have reality to a which reflects Cath- ted view presidential office. influences_ As an insti- olic and Jesuit Catholic, Georgetown believes trial, Healy, tution that is Timothy S. At Reverend God, to a life 5.J., that all men are sons of called Georgetown’s president and a defend- eternity.” case, Him now and “until 1969 of oneness with ant in this testified that engaged century, principally Society 18th it has been 3. The of Jesus was founded in 1534 generally Ignatius See J. Loyola. it has be- St. Since then Aveling, The Jesuits education. (1982); 1534-1921 Campbell, major in all come a order stationed T. The Jesuits: (1977). country, parts since the of the world. In this During a five- University, University quirement they Bulle- so. Georgetown be (1980-81) trial, made Undergraduate prior Schools Jesuits year period just tin— (hereinafter Bulletin”). “Undergraduate half of the up one third and one between bulletin, According to its Law Center must “maintain a Faculty board. members religious heritage “Georgetown’s is a cher- attitude towards Catholic be- sympathetic quality.” part of its distinctive ished Georgetown has practices_”4 liefs and University, Georgetown Law Center Bulle- largest ministers in resi- number of (1980-81) (hereinafter “Law Center tin colleges and uni- among dence the Jesuit Bulletin”). Faculty Handbook de- versities in the United States. “Georgetown University scribes some Roman Catholic doctrine influences American, Catholic, Jesuit institution of Georgetown’s policy decisions. Abor- higher learning,” seeking “uphold, de- proscribed procedures are tions and other fend, integral and elucidate the propagate, performed University hospital. in the heritage” Christian and American cultural newspapers may carry adver- Student through principles, “certain established clinics. Birth con- tisements abortion ideals, specific and definite traditions.” may not sold in the student trol devices be Georgetown University, Faculty Handbook stores. Cohabitation forbidden between Handbook”). (1971)(hereinafter “Faculty vi single students in the dormitories. principles” “the dem- The “established $750,- gift returned philosophical the na- onstrated truths about Libyan government due to the 000 to the man, God; the universe and ture teachings Roman Catholic conflict between truths of Christian revelation and their perceived links with ter- nation’s crystallization through the centuries....” considerations, activity. Religious rorist Among “specific “the Id. ideals” are found, George- the trial court influenced society through acqui- perfectability Recognition” town’s denial practice by sition and its members accompanying benefits to intellectual, theological, moral virtues and groups. their derivatives the value of service [and] C. Secular community expression as an Educational Role Christian democratic ideals.” Id. And “definite traditions” include “the Christian Despite its historical identification with having their source culture and conduct Church, Georgetown the Roman Catholic inspiration teachings and exam- pro- University's professed intention is to ple of Christ....” Id. education, one that is vide a secular albeit founder, Its informed Christian values. University is a member Carroll, very begin- insisted from the John of Roman Catholic edu- several associations college open to students of ning that the institutions. As a Pontifical Univ- cational *7 Religious every religious persuasion. be- ersity, American uni- it is one of two admissions, graduation, plays lief no role Pontificio, versities entered in the Annuario attendance, participation sports or class listing by Holy See of all an annual activities, eligibility for or other student throughout the world. such institutions facilities, aid, awards placement financial throughout prop- its Chapels are scattered Undergraduate programs. The or honors times offered several erties and Masses “impos- Georgetown declares that are Bulletin day. of its directors each Almost all . faculty mem- religious any creed on Catholic, re- es no although there is no formal integrity ty. Accordingly, of the Universi- "Religion Ethical headed and a section Norms,” Faculty shall ty requires members Faculty that all Handbook states: Cath- sympathetic towards a attitude maintain operated Georgetown University is While a practices, shall make and beliefs and olic regula- auspices, is no Catholic there under appreciate such beliefs sincere effort requires the Facul- all members of tion which Faculty who are practices. Members A ty of the Catholic faith. to be members good example expected set a Catholics are expected Faculty to maintain member is regular practice of Catholic duties. by the conduct consistent standard of life and objectives Id. at 12-13. philosophy of the Universi- student, expects spiritual ber or but it them to role and objec- ular educational its tives: respect religious convictions each
person.” University at 1. The Theology longer Id. motto is sway no has the in the had, “Making University Al- that it once nor can One—Jew and Gentile.” we any longer organiz- talk about it as the though undergraduate students must at- ing base of the other academic disci- Theology Depart- tend two courses plines. What we can talk about is a ment, taught neither need be from the religious years tradition which after 200 perspective. Faculty Catholic members are must condition what the University is required Catholic, they to be nor are Any university and does. is a creature propagate asked to Catholic faith of time and its nature secular. Our philoso- indoctrinate students with Catholic job impact is to discover what the habit phy- of belief in has reality God on the secular Relationship D. George- The between university, teaching, of a on its its learn- Religious town’s Tradition and its ing, its research and its service. Secular Educational Role Georgetown University, Report 2 Annual foregoing, George- From the and from (1979). report, Healy In a later President materials, published appears town’s thoughts: Georgetown voiced similar University perceives fulfilling itself as imperatives has the of its own secular be- a secular role educational without abandon- ing, reinforces, strength- but the Church ing religious heritage. its This view is ens, personalizes them.” expressed Undergraduate in its Bulletin. (1981). Also, University, Report Annual While reflects its Catholic and notes, “[ejducation principally he remains influences, business, Jesuit university secular and the is a entity job secular with a clear secular to do. expects neither wishes nor all its [i]t Church, however, deeply can influence Catholic, members to be but it does as- job is at 4-5. how that secular done.” Id. basic, sume that all of them share a widely accepted view of humankind. It Recognition E. The Criteria essentially equal, sees all men as as en- 13,1977, gay On October students dignity always dowed with a human to be Georgetown University public held a meet- arms, respected.... open It seeks to later, ing campus. in a room on Sometime ecumenism, in the fullest sense of name, group Gay People chose a those of all beliefs and all races. (GPGU), Georgetown University expressed by 1. A Id. at similar idea is forma- adopted a constitution.5 After its Law Center: “The Law Center welcomes tion, in- weekly, met its activities GPGU of all and does students .beliefs lectures, discussions, cluding film shows hand, proselytize. On the other and social events. religious heritage Georgetown’s is a cher- time, develop- Around the same a similar part quality.” ished of its distinctive Law There, a occurred at the Law Center. ment Bulletin, 31.' supra, Center group Gay known as the Coalition (GRC) in- Healy Georgetown University
President has described the Law Cen- constitution.6 terrelationship adopted sec- ter formed and between development provide purposes To 5. The of GPGU are: forum responsible with one’s *8 sexual ethics consonant (1) Supportive personal beliefs. atmosphere gay provide in which To an (4)Social pride, people develop a sense of self- can which program activities To establish a worth, community. awareness and purposes. the above reflect (2) Educational added). (emphasis Member- GPGUConstitution ship, regardless encourage provide To information and orientation, open to is of sexual understanding dialogue gay between and and students, faculty, and alumni. members staff non-gay people. (3) purposes are to: Developmental 6. The of GRC GPGU, SAC, undergradu- in Unfortunately, advisory body contrast regard relatively is barren with record ate student senate. The different levels origins subsequent and activities. GRC’s support are defined as follows: time, After a both student decid- Body “Student Endorsement”: SAC the formal status and attendant ed to seek grants recognition representing this enjoyed by many campus privileges other interest of the Student Government and organizations. campus, On the main where body. the entire student based, doing procedures is GPGU “University Recognition ”: SAC by guidelines. so were established written concerning makes recommendations recognition first initiated the When GPGU recognition. approval granted Final is during year academic process, through University’s Director of Stu- contained in these criteria were a document dent Activities. issued the Student Activities Commis- recognition (SAC) Funding”: sion under the name “What Your This document monetary Needs Know.” was in a form. Club another, superseded in the fall Id. guidelines specific more set of known as recognition The three tiers of are listed “Recognition Criteria: Student Clubs and declining accessibility. in order of (hereinafter Organizations” “Recognition accessible, Body most “Student Endorse- Criteria”). primarily This later document ment,” depend approval by does not expanded upon clarified and the criteria set University administration. It available one; in forth the earlier the two were not require- any group which satisfies basic Hence, although inconsistent. GPGU composition as to size and applications in ments fact made two unsuccessful years, academic under each scope successive one are “within the whose activities guidelines, set of we no distinction make concern, body the student interest applications between their and treat both educational, social, serving an or cultural though governed by “Recog- they were purpose.” Id. at 2. guide- nition Criteria.” Also because the “University Recogni- The more elusive conflict, reject lines do not we the student tion,” case, issue in this re- the status at groups’ “Recognition claim that Criteria”— University quires approval by the adminis- explicit the later and more of the two—is a may only sought by groups tration and document, “self-serving,” pretextual already Body that have obtained “Student adopted response appli- first to GPGU’s In order to “Univer- Endorsement.” obtain designed on its cation and to close the door Recognition,” organizations such have sity second one. They further satisfy two conditions. “Recognition Criteria” sets forth a tiered must: undergradu- system support available to (1) aiding the Univer “be successful support, in groups: ate student “This order sity’s mission in the tradition educational community, to reach all the members of the (as by its founders outlined established is offered on three different levels.” Id. at University’s Statement Education Applications initially submitted to al, cultural, (1) religious, social and medical ser- and research on the Foster discussion gay on lesbians and men in such effect of law vices. (3) areas as: exist- Disseminate information on the law a. criminal pro opportunities in the ence of bono work family b. law rights. gay area of immigration law c. d. (4) gay Cooperate law student with other security military law and national gay rights organizations law. in areas of employment law e. labor and (5) gay le- speakers seminars on Offer speech f. g. free and association gal appropriate Law Center issues for the rights gay students. community. legal (2) entering gay lesbians and men Provide paragraph (emphasis added GRC Constitution about Wash- the Law Center with information (2)). ington's including gay community, education- *9 Objectives[7])”; obtaining and al Goals and Id. at 3. Success in direct finan- support, discretionary by cial decision (2) “provide a broad service to the community University, group University the sense that elevates a student group may of the “University Funding,” highest the activities be tier es- special an immediate and/or interest.” “Recognition by tablished Criteria.” “Recognition at 3. Criteria” describes Id. guidelines “Recogni- No written such as Recognition” Georgetown’s “University tion Criteria” were issued at the Law Cen- “endorsement of the various co-curricular ter, where GRC was located. The Universi- by specific undertaken activities club.” ty’s treatment of GPGU’s and GRC’s re- at 1. Id. was, however, spective applications indis- “University Funding,” the third and least tinguishable. importantly, More the stu- recognition, may accessible tier of suggest dent do not alter- sought only by groups already that have native criteria were ever force at the “University Recognition.” obtained Such Law Center. We have no basis on which to however, right groups, have no automatic eligibility conclude that the factors to be support. to direct financial Id. at 4. Last- applied significantly to GRC are different ly, only implicitly, and a fourth tier exists guidelines from the written set forth in “Recog- by outside the scheme established “Recognition campus. at the main Criteria” occupied by nition com- Criteria” —that Groups’ Attempts F. The Student pletely unrecognized campus groups, oper- “University Recognition” Gain ating Body without even “Student Endorse- attempts gain ment.” GPGU made two “Univ- Recognition.” first was in aca- ersity More than status is at stake. The facili- year 1978-79 and the other immedi- demic a student ties and services afforded to following ately afterwards in the academic dependent group by University are year. On both occasions it obtained recognition within this upon its level of George- Body “Student Endorsement.” group scheme. A with “Stu- three-tiered grant refused to Rec- town Endorsement,” Body without dent but ognition” accompanying tangible or “University Recognition,” may: benefits. facilities; (a) University use
(b) privileges; fund apply for lecture approved considered and SAC first (c) counseling receive financial January 1979. application GPGU’s comptroller; the SAC following day, The same SAC issued (d) advertising; campus use and statement: (e) petition assistance from receive granted has a charter The SAC
Student Government. purpose providing a for the [GPGU] “University Recognition” en- Id. at 2-3. students of forum where all group titles to four additional benefits. concerns of may come to understand the They may Gay Students. (f) use a mailbox in the SAC office and for a charter does The recommendation Station;
request Hoya one making any not mean that the SAC Service; (g) Computer use the Label rightness wrongness statement on the services; (h) mailing homosexuality implying use or is that the making a statement. University is such (i) funding. apply for dignity Godly in a human con- Only description that celebrates is contained one item of this the value It is entitled "A Draft Statement 1. The statement stresses in the record. text." Id. at Objectives "George- of the light Goals and of the Educational education in of a liberal September Campus" prepared in Main and was per- of the whole the education [of] town ideal Vice Presi- the Office of the Executive Among Jesuit Id. the essentials son.” pages of sin- Affairs. In six dent for Academic education, "[tjheological reflection liberal "Georgetown, gle-spaced typeface, it notes that given pri- religious practice encouraged origins, has a of its and Jesuit virtue Catholic ority.” Id. at 3. reality, richly one special informed view of *10 age understanding dialogue a week the Student Senate ratified Within and between approving both the action of SAC gay people. non-gay and and the Government Charter”8 “Student (3) open expres- Allows for forums and accompanied it. statement opinions helpful develop- in the sion of following Schuerman, day The William C. responsible conso- ment sexual ethics Affairs, in- Associate Dean Student personal nant individual beliefs. with formed the Student Government (4) gather together Allows students to recognized GPGU would not be as an “offi- setting in an to share com educational activity .Georgetown University.9 cial” beliefs.[10] mon interests and He wrote: however, en- University, The will not recognizes The administration that the dorse the as an activ- [GPGU] “official” pastoral issue both an educational and ity Programs. its Student Affairs It is an issue University one. that the University The will not contribute understanding in an has addressed man- support organization: of this University The ner. has been and will (1) Through grant University continue to be sensitive to the concerns funds. gay problems of its students and the (2) By providing office subsidized they campus face on the and in our socie- service, space, telephone supplies, office ty.’. .. equipment. University acknowledged The has in a (3) By granting authorized use of the supportive way gay These students. Georgetown University. name may organize, students continue to Georgetown University private is a express opinions, publicize education- University history with a and tradition ally Gay may related events. students specifically University which is Catholic. University use educationally facilities for administrators must often make deci- purposes meetings, related such as dis- light sions in conscience and value groups, speakers, cussion etc. The of- system identified with this tradition. fice and services of the Director of Stu- University, responsi- in terms of this
dent gay Activities are available to stu- bility argument cannot concur help dents for in planning and assistance partic- of its Student Government in this educationally programs. All related aca- case, acknowledgment ular that official personnel support demic and educational imply endorsement. University open services in the gay available to students for assistance This situation involves a controversial and advice. teachings matter of faith and the moral position University
It is the of the of the Catholic Church. “Official” subsi- University by gay this access students to dy support gay orga- resources: many interpreted by nization would be (1) possible atmosphere positions Makes endorsement taken gay people which as members of this gay range movement on a full University community develop a can University supports While the issues. pride, sense of self-worth and awareness. the individual lives and and cherishes (2) rights of its students it will not subsidize Provides for the dissemination of educational information that encour- this cause. Such an endorsement 8.According Although expressly Dean Schuerman did not to "What Your Club Needs To so, Know,” say groups, University the student during the criteria in force that aca- the trial court all treated his letter as a denial of year, demic a "Student Government Charter" Recognition.” granted group recognition legit- as a "official activity body.” imate of the student Id. at 3. words, Dean Schuerman claimed 10. In other The term "Student Government Charter" does position University’s allowed GPGU Criteria," appear "Recognition but essen- most, all, purposes if not set forth achieve tially in "Stu- the same attributes are contained GPGU Constitution constitution. See in its Body dent Endorsement." 5). 0quoted supra note inappropriate
would be a Catholic in granting recognition group, to our it is *11 University. endorsing activity?” such Letter from GPGU to Kelley, Reverend A. Memorandum from Dean W. Schuerman to 9, 1979) (Apr. (“not” S.J. emphasized in (Feb. 6,1979) (em- Student Government original, remaining emphasis added). added). phasis meeting After representa- with GPGU appealed GPGU Dean Schuerman’s deci- tives, Kelley Reverend denied appeal. its Affairs, sion to the Dean of Student Wil- upon position He relied by taken Deans Stott, Jr., liam R. and met with him for that Stott, Schuerman and and then added: See purpose. letter from GPGU to Dean talked, As I explain tried to when we Stott, (Feb. 24, 1979). W. Jr. Dean Stott goals believe that our essentially upheld “den[y] the decision to endorsement same, but that the means to arrive at activity as an official of the [GPGU] them are different. will University’s Program.” Student Affairs support continue to show Gay for Stu- Stott, Jr., Letter from Dean W. to GPGU way dents but in a which is deemed (Mar. 5, 1979). He continued: appropriate for University. this You University The fact that has cho- mentioned that there be additional grant sen not to endorsement to the ways in which the Administration could approved as an activity, student [GPGU] supportive recognition short of official concern, does not indicate a lack of a lack suggested and I you discuss these sympathy of Gay par- for the Student with Mr. Schuerman. ticular, general. simply or students in It S.J., Letter from Kelley, Reverend A. means that after the facts have been 9, 1979). (Apr. GPGU considered and discussion has taken Kelley’s Reverend ap- denial of GPGU’s point there remains a place, dis- of peal attempt gain “University ended its agreement as to whether endorsement Recognition” year in academic 1978-79. as a student activity is [GPGU] early GPGU renewed its efforts in the appropriate a University. Catholic for following year. academic This time it decision, therefore, University’s The separate made request visits to SAC to judgment not a reflection on or a and, later, “Student Government Charter” personal members, choices of its but “University Recognition.” approved SAC represents judgment rather of what is request GPGU’s for a “Student Govern- appropriate as an insti- ment Charter” on November 13 and its tution. by decision was ratified the Student Senate Id. added). (emphasis accompanied November SAC again appealed, GPGU this time to Re- approval following with the statement: S.J., Aloysius Kelley, verend P. Executive SAC, convinced the [GPGU] Vice President for Academic Affairs. Tak- both their written constitution and their ing equation “recogni- issue with the presentation, they represent oral “endorsement,” tion” and wrote: GPGU group campus distinct students represent- whose existence we as student important emphasize We think it acknowledge. atives are bound to Fur- seeking that what we are the start thermore, by enumeration of their edu- endorsement, recognition, not Dean as (e.g. answering ques- cational functions response imply. Stott’s seems to It is classes, nursing enlightening tions in belief, our as well as that of the student RAs, etc.) as, depicted itself [GPGU] recognition government, that official criteria, positive to borrow from the “a organization our would not be con- community.” University force within the strued as an endorsement homosexu- activity. al Since this seems to be the happened previous year, As Dean had administration, major immediately concern of the we to the Stu- Schuerman wrote the ad- possible point ask: “Is it not out that the adminis- dent Government that, accept did not the action saying tration to issue a statement ministration giving recognition” appropriate. “official SAC as tion” was Dean Schuerman wrote: Memorandum from Dean W. GPGU. to the Student Government Schuerman my judgment, recognition official
(Nov. 21,1979). gave The reasons he were gay orga- University essentially interpreted by many borrowed from his letter nization would be endorsement, year. support, approval from Dean previous Memorandum positions gay move- Government taken W. Schuerman Student 1979) 19-21). range issues. This (Feb. 6, ment on a (quoted supra at full inappropriate for a Catholic would be Undaunted, again appeared be- GPGU *12 your dis- University. recognize IWhile requested weeks later and fore SAC two I agreement position, this was Recognition” “University to add to the argument by your dissuaded Body Endorsement” it had al- “Student grant University could on the one hand ready received. Both SAC and Student recognition (defined by official Student despite Senate voted in favor of GPGU recently updated criteria Government’s administration’s recent announcement that of the various co-curri- as “endorsement request. it would not accede to this At the specific cular activities undertaken 1979,therefore, awaiting end of GPGU was hand, club”) and on the other disclaim University’s reaction to the favorable major “endorsement” activities response it had won from the Student which, by definition, are associated Government. gay organization. with a 15, 1980, January On an effort University recog- ... does not [T]he clarify position, requested its GPGU activity official nize the as an [GPGU] administration to furnish it with a state- program and the Student Affairs will group’s ment as to the status. This was this subsidize cause. provided by the Director of Student Activi- Letter from Dean W. Schuerman to GPGU ties, repeating Debbie L. Gottfried. After (Feb. 21, 1980) added). (emphasis previous the administration’s reasons for Continuing pattern previ- set the denying “University Recognition,” she add- year, unsuccessfully appealed ous GPGU ed: to Dean Stott Dean Schuerman’s decision you As I have gay told and other stu- Freeze, S.J., Donald Vice and Reverend dents, my the services of office are avail- President for Academic Affairs and Prov- you help able to and assistance in Stott, Jr., ost. Letter from Dean W. planning educationally programs. related 14, 1980); (Mar. letter from Rever- GPGU you enough I cannot stress to the sinceri- (Mar. 31, Freeze, S.J., to GPGU end D. ty behind this offer. cannot offer 1980). appealed, suc- This time it without possibility University’s changing cess, way Healy. to President Let- all the position on its what it would be feels Healy, to President T. S.J. ter from GPGU interpreted as endorsement and offi- 1980); T. from President (Apr. letter support range cial issues full S.J., 29, 1980). (Apr. Healy, to GPGU associated with this cause. Healy’s ultimate denial day after President (Jan. Letter from D. action “University Recognition,” Gottfried GPGU 1980) added); (emphasis memoran- Superior see also filed in Court. was dum from Dean to D. Gott- W. Schuerman then, chain of events had By a similar (Jan. 16, 1980). fried Decem- place the Law Center. On taken applica- had ber GRC submitted
Both and the Student Government GPGU “recognized” student ac- reconsid- tion to become requested that this decision be Center Committee tivity to the Law from the Government ered. Letter Student (CSFL). peti- Its (Feb. 5, 1980). Faculty Life As Student to Dean W. Schuerman February approved by CSFL was year, GPGU tion happened previous had later, David J. Schuerman, 1980. Two weeks failed to met with Dean but Center, Jr., Law Recogni- McCarthy, Dean persuade him that “implement tion,” told CSFL that he would not together with the increased access to recognition funding either pro entails, facilities and services that status posed organization.” Memorandum from violated the Human Act. See D.C. Jr., (Feb. McCarthy, Dean D. to CSFL (1987) (quoted supra Code 1-2520 note § 1980). McCarthy’s Dean deny reasons for 1). Georgetown defended itself insist- ing recognition” GRC “official were ing that “University Recogni- its denial of couched terms almost identical to those tion” was not “on the of” basis the sexual given Dean Schuerman had GPGU. See students, orientation of the but rather on memorandum from Dean W. Schuerman to “purposes account of the and activities” of (Feb. 6, 1979) the Student Government particular organizations they had 19-21). (quoted supra at After this action formed. also asserted filed, Healy had been President informed if even its actions were taken on the basis McCarthy Dean that his earlier decision orientation, they protected sexual were denying “University Recognition” GPGU by the Free Exercise Clause of the First campus applied on the main equally and for Amendment.12 the same reasons to GRC at the Law Cen summary The student moved S.J., ter. Letter from Healy, President T. *13 judgment. On March the trial 8, 1980) (“The McCarthy (May to Dean D. granted partially court their motion. University’s decision is not a reflection on Judge George Leonard Braman found that judgment personal or a of the choices of its “University Recognition” town’s denial of individual members but rather reflects a violated the Human Act. On the judgment appropriate of what statutory Georgetown issue as to whether Georgetown institution”).11 as an A letter had discriminated on the of sexual basis to the same effect was sent to the Chancel orientation, held, he no material factual Center, Georgetown lor of the Medical genuine dispute issue was and the stu University’s remaining campus, one al groups judgment dent were entitled to as a though group sought no similar there had 56(c); Super.Ct.Civ.R. matter of law. See Recognition.” “University Letter from Bank, 432 A.2d Riggs Howard v. National S.J., Healy, President T. to Chancellor M. (D.C.1981). Judge or 8, 1980). 705-06 Braman McNulty (May dered that the issue set for trial would Thus, filed, at the time this action was University’s validity be the claimed Body GPGU had obtained En- “Student free exercise defense. Campus dorsement” at the Main and GRC apparent equivalent had obtained its at the Judge imma- doing, In so Braman found group Law Center. Neither had been suc- issue statutory terial to the discrimination attempts cessful in its to obtain “Universi- Georgetown’s grant of “Univ- claim that a ty Recognition” or the additional benefits Recognition” an un- ersity would constitute that status carries with it. willing “endorsement” of the student groups.
II Discrimination on the of sexual or- basis THE TRIAL COURT PROCEEDINGS found, having and ientation been a statu- established, tory violation therefore twenty gay groups The two student and proceeded nonjury trial on against case to a brought individual members suit Georgetown’s free exercise defense. After Georgetown University, president, alleged days testimony, Sylvia Ba- They seven dean its Law Center. unconstitu- “University Recogni- con held that the statute was the denial of afterwards, University" majority "Georgetown Shortly in their names. It has 11. a substantial meeting faculty appealed a Law Center voted to endorse from the trial court’s dismissal of approval petition "recogni- CSFL’s of GRC’s That issue is not before us the counterclaim. tion." expressly expresses opinion, Mack no thereupon. impliedly, prevent also counterclaimed to using groups words the student dorsement,” Recog- grant “University of this case: applied facts tional group nition” access to District of Columbia Human allows student “the yield guar- additional facilities and services. Act must the Constitutional religious freedom.” antee George- Judge Bacon also found that Recognition” “University findings town’s denial Judge Bacon made several view, on its one not without was based three levels of fact. She described the foundation, gay organiza- that “the organiza- recognition campus available tions, charters and as evidenced their groups tions and found the student activities, participating their were in and Body “Student had achieved Endorse- promoting styles,” homosexual life ment,” together tangible with its attendant religiously opposed was benefits, but had been denied activity. University type group to this Recognition” and the additional upon sincerely-held administrators acted accompany which that status. benefits recognition of official belief that “George- Judge Bacon also found that inconsistent with the two “would be University religiously town is a affiliated teachings normative and with the Church institution which serves both educational obligation nor- basic undermine the deny- purposes.” and secular sectarian teachings Finally, mative of the Church.” Recognition,” Judge ing “University Bacon Judge Bacon found that “Universi- without determined that administra- formed, Recognition” ty clubs applied the moral or normative tors had meetings campus, application held Church, teachings of the Roman Catholic funds, and that in the made for lecture through as these were established at trial there are other off- District Columbia testimony expert and Church documents. campus opportunities gay available to stu- Archbishop Quinn, John R. A Pastoral See *14 dents. 5, 1980); (May Homosexuality Letter on fact, findings Judge In to her addition Congregation for the Doctrine of Sacred of law. Bacon made several conclusions Faith, Ques- Declaration On Certain Georgetown University is not She held that (Dec. Concerning tions Sexual Ethics sepa- pervasively it cannot so secular that 1975). doctrine, sexual Under Catholic and sectarian activities and rate secular meaning function has its true and moral receipt that its federal funds secular marriage. only in rectitude heterosexual its required it to abandon purposes neither distinguished Homosexual acts—as put it in activities nor violation sectarian morally homosexual orientation —are of the First the Establishment Clause wrong “gravely and must be viewed as evil Moreover, its status as Amendment. faculty.” and disordered use the sexual institution al- educational church-affiliated Persons of homosexual orientation have1an rely on First Amend- it to raise and lowed obligation “try possible is reasonably religious guarantees of freedom. ment change they if find in such themselves sincerely religious issue are The beliefs conform orientation” and must event to the Roman Catholic held and central teachings on their conduct to the normative they impose affirmative com- faith and sexuality. affiliated human No believer Judge Bacon upon its mands adherents. may con- Roman Catholic with the Church the Human enforcement held that done, endorse, approve about or be neutral require Rights in this case would Act orientation, life- homosexual homosexual in a manner “inconsist- Georgetown to act style or homosexual acts. institution” its as a Catholic ent duties with major pmr- place a on the “the burden Judge Bacon found that would therefore religion. On the other [Recognition’ is offi- ‘[UJniversity pose of free exercise endorsement, policy “national” hand, there is no which cial an endorsement because re- in matters intervention requiring state University believes will conflict orientation, the Human teachings lating to sexual of the Church the normative any “compel- further However, Rights Act does not Judge Bacon homosexuality.” could which ling” governmental interest acknowledged that, the “en- in addition to outweigh the burden on presented exercise. case if only Judge this Bra- case, In the held, circumstances of she man correctly concluded that the statute Rights the Human Act is “a was Judge local violated. considering enact- Before ment of purpose imper- ruling well-motivated Bacon’s later but on the free exercise defense, missible Upholding Georgetown’s reach.” we ask must ourselves whether defense, Rights free exercise the Human Judge Bacon Act properly dis- was con- groups’ Judge missed the strued complaint. Braman. deeply rooted doctrine
Ill
constitutional
possi
issue
to be
if
avoided
ble
principles
informs our
statutory
con
THE HUMAN RIGHTS ACT
needlessly
struction. We do not
pit a stat
VIOLATION
against
ute
the Constitution. Insofar as its
granting partial
summary judgment,
permits,
language
Rights
Human
Act
Braman found that
must
be construed
a manner
pro
which
“University Recognition”
denial of
and the
tects
constitutionality. E.g.,
United
attendant
benefits violated the Hu-
Locke,
84, 92,
States
U.S.
v.
105 S.Ct.
Rights
man
Act. At trial on the free exer-
1785, 1791,
(1985);
17 religiously Georgetown ing Georgetown includes tenders accordance with teachings re- “endorsement” of normative of the Roman Catholic guided institutional groups. Contrary Judge “University Recognition” cipient student Church. also construction, gives group Human Braman’s earlier student access certain “clearly Rights require private tangible one errone Act does not benefits. Unless ous,” findings binding are actor to “endorse” the ideas conduct these factual appeal. interpretation upon purposes The trial court’s us for of this D.C. another. v. plain 17-305(a) (1981); see Chaconas language of the would defeat Code § (D.C.1983); Meyers, simultaneously A.2d 384 statute and transform 465 Investments, Inc. v. Blanken & Blanken Rights patent invasion of Human into a Inc., (D.C. n. Keg, A.2d the First Amendment. statute Cunningham, 1978); Cunningham practically legally rendered both (D.C.1959). the Human unenforceable. Because A.2d require Georgetown not Act does groups urge us Specifically, the student groups, denial of “endorse” the student disregard clearly erroneous Recognition” did violate “University “University finding Bacon’s factual the statute. Recognition” an includes They While the Human Act does point out that other “endorsement.” require any therefore Recognition” “endorsement” —and groups “University occu- require type does not py range political, a broad of the social and Recognition” by Georgetown argue spectrum, offered philosophical —it require equal does access to the “facilities Georgetown cannot claim that all of these upon status. organizations strictly services” attendant Roman Catholic (1987). 1-2520 In this case the particular, D.C.Code the student in outlook. § groups recognized have been denied four groups existence refer us tangible also come with a benefits that of such bodies as the Jewish Stu- diverse grant “University Recognition”: Association, Organization official- dents mailbox, ly approved Students, use of Young use Arab Americans Service, services, Computer mailing Freedom, Label Socialist Or- and the Democratic (but right apply and the not neces- ganizing Committee. receive) sarily funding. All of these trial, challenged At the student benefits, “endorsement,” unlike an concerning Healy President with evidence are “facilities services” within University’s willingness extend meaning Rights Act; Human organizations “University Recognition” to supports record Braman’s conclusion religions adhere to other members whose they sexu- were denied on basis of Healy re- President Catholicism. than Id. Tangible hav- al benefits orientation. sponded: ing upon impermissible been denied ba- understanding the Roman It is the *16 sis, affirm, we to extent only, that faiths other than that Catholic Church finding Braman’s that the Human are, it put to Roman Catholic Church the violated; holding Act was reverse we his terms, grace of carriers in the technical “University Recognition” that the denial of good. The Roman Cath- as such are and of statutory was itself a violation. they are in- that Church would feel olic that Finding Bacon’s Factual A. complex a in the of complete, context but Recognition” “University George- pur- and stated it is the clear university, an town Includes “Endorsement” that Roman Church pose of Catholic the receive the same of faiths those other
Judge Bacon as a found fact in intellectual sustenance pastoral and under scheme possible as as far it their faith Recognition” group benefits a student grant it, given multi- University to ways. major purpose “The of two ‘[U]niv- from receive students plicity, as Catholic ersity [Recognition’ official endorse- university. ment_”, which a Catholic an “endorsement” sought student also to under- “The most,” stopped statement that me mine claim of “endorsement” Healy, said President was GPGU’s stated by pointing to views on artificial con- birth commitment to “the development of re- trol, abortion, sponsible divorce and lesbianism asso- sexual ethics consonant with personal ciated with members of the Women’s one’s beliefs.” See Consti- GPGU (WRC) (quoted 5). Collective and the tution supra Women’s note Under Ro- (WPC). However, doctrine, Political Caucus man Catholic expert one of as testimony witnesses, established, their Mary Liston, responsible Sister K. stat- sexual ethics are WPC, question personal ed that campus group another belief. “The member, University which she was cannot make that had not and statement any morality about area of front could not take line with- pro-abortion position insisting upon out the objectivity of moral the stand of the Catholic “[b]ecause fact and that it strictly is not left Church individ- issue of abortion.” Sona ual Vandall, determination within context which WRC, representative Jean can reasonably read as Catholic.” Un- acknowledged formally stated doctrine, der Roman contrary Catholic purpose organization of that is the eradi- suggestion, GPGU’s sexual ethics are the policies cation practices which alien- subject of an and unyielding absolute moral ate against and discriminate women. She law, one laid down God. further testified contrary that views to Ro- man teachings Catholic were carried Healy President also testified that none published of WRC’s information and expressed GPGU’s intention to “establish a positions no such been had voted on program of activities which reflect membership. Referring to an occasion id., purposes,” above “open-ended was when posted organizations’ WRC other no- enough University involve a host concerning tices artificial birth control and positions together and activities which abortion, Healy President testified that he singly it would inappropriate.” find He referred matter to a committee “de- similar had reservations about GRC’s stat- termine whether incidents an [these were] provision ed commitment to the informa- [they isolated instance or whether gay were] tion to law lesbian students con- part essential activity.” the collective cerning “Washington’s gay community, in- After parties, educational, discussion with the various cluding cultural, religious, so- regarded he question as incidents cial medical services.” See GRC Con- “such minor activity (quoted supra 6). instances of as not to According stitution note be of University.” serious concern Healy, to President GRC’s association with concluded, basis, range He engaged in by that withdraw- activities Washington al of “University Recognition” gay community WRC’s would “involve Georgetown University appropriate. positions would not be publicly adopt.” would wish regard plaintiff With to the. teachings Roman Catholic establish groups, Healy President saw the matter prevent norms” “moral which believers differently. He testified that the Universi- conduct, recognizing homosexual as ty distinguish does not between students distinguished orientation, from homosexual on the basis of their sexual orientation than anything other sinful. President group said merely promoting activity Healy duty obey added that the these rights legal gay people norms” “moral present But, no conflict. accord- *17 ing institutions, George- binding upon to Healy President other would be more theologi- representatives, including publicly town its which have to act and where expert, purposes cal in the is an moral of the set forth there added consideration leading astray giving or organiza- GPGU an others scandal in Constitution described word, tion technical of “University Recognition” for which sense so that binding authority inappropriate would be a insti- of Roman Catholic for Catholic would, teaching tution. on an institution at least dimension, greater re- be than it ment.” administrators in that be on an they would that understood to peatedly [individual]. testified the outset its have that effect. From McCormick, S.J., Richard J. Reverend GRC, Georgetown dealings with GPGU theological expert, Georgetown’s testified equated “University Recognition” with an He said a to same effect. that Roman duty “Recognition Cri- university a act in a Neither Catholic “has “endorsement.” teachings way with consistent those at trial nor evidence adduced teria” poli- public them in its not to undermine “University Recognition” is indicates that Thus, pub- public policies “in its cies.” grant- right. an That status was automatic acts,” not University “ought lic University’s and some ed in the discretion explicit public policy a endorse- adopt application doctrine was of Roman Catholic of, implicit endorsement” for ex- ment or recognition process. in the involved intercourse, abortion, premarital or ample, required Judge deference to Bacon’s Our Georgetown should homosexual conduct. by George- finding is not undercut factual actions, decisions, public policies, not “in its willingness town’s “endorse” wide equivalently position that would es- take a extremely range groups with diverse lifestyle equally normative tablish another goals For those whose com- and activities. the one that is in normative valid with religious be- According Healy, mon interest is a non-Catholic position.” to President grant “University Recognition” lief “endorsement” system, and GRC would conflict with GPGU spirit appears granted in the have been duty Georgetown's not to undermine the others, WRC, including of ecumenism. For teaching Roman Catholic that “human sex- con- permitted Judge Bacon to evidence uality can be exercised within mar- no part that “essential of the collec- clude riage. ...” activity” tive Roman Catholic contravened precisely did The trial court not define doctrine, and that the administration would what it meant “endorsement.” For “University Recognition” if there withdraw “a Healy, position President that “isolated instances” of un- were more than approving or either neutral Church was those activity inconsistent with official range of homosexual activities was therefore teachings. The trial court (Emphasis added.) unacceptable.” This University entitled conclude statement reveals what we understand to or at least neutral adopted approving “endorsement,” as be at stake. An official existing groups all of the position towards symbolized by Georgetown’s grant of perceive it did not them because “University Recognition,” express religious obligations. incompatible with approval neutrality towards or understanding comports our This with groups. George- the student Under the in this case. means what “endorsement” scheme, “University Recognition” town usurp court appellate An reserved for do fundamen- label tally challenge the “moral norms.” role the factfinder. We cannot “en- Judge Bacon’s “clearly erroneous” “clearly erro- cannot characterize as We i.e., finding, dorsement” finding that neous” Bacon’s Georgetown contains an Recognition” at “University Recognition” of- scheme neutrali- expression religious approval type of by Georgetown includes the fered obtaining that group ty towards student “Recogni- just “endorsement” described. as an “endorse- status.14 tion described it Criteria” finding accepts but that factual Ferren appellate facts. It court cannot select its An implications. Post ignores its First Amendment found the facts deals with concrete cases and Judge Terry, on the & 129 note 15. at 112-15 set the of its decision. the trial court limits hand, agree the entire Here, appears to finding other fact is trial court’s a critical except Judge Human Ferren Georgetown’s particular “Univer- court Rights scheme of requires Post at no "endorsement.” Recognition" "en- sity an institutional includes group. recipient 166-67. dorsement" of the
20
B. The Distinguished “Endorsement” “endorsement” “University contained in Tangible Recognition” group assists the student Benefits only by giving Georgetown’s imprimatur it The distinction between the “en or, least, Quite at nihil obstat. different dorsement” and the other benefits con tangible are the benefits associated with in Georgetown’s tained scheme of “Univer “University Recognition.” Unlike the “en- Recognition” sity is fundamental. It is so dorsement,” tangible benefits are “fa- statutory from both a and a constitutional services,” cilities and D.C. Code 1-2520 case, perspective. § In this separateness (1987), and expression not an abstract of of the benefits issue is obscured the University’s moral philosophy. Their they fact are together bundled into a disguised distinct characteristics are single package known as Rec both because the “endorsement” and the ognition.” Because the “endorsement” tangible additional benefits included in tangible and the benefits contained package one known as package “University Recog- distinct, are fundamentally we nition.” must sever the artificial connection be analyze
tween them in order
true
As amicus The Governor’s Council on
issues.
and Gay
Lesbian
Issues of the State of
points out,
Wisconsin
The
“such a structure
“endorsement” contained in
unnecessarily
“University Recognition”
University’s religious
ties
intangible.
is an
To
beliefs
extension of
group,
a student
no
than
benefits.” Brief
it is more
an
expression
agree.
5-6.
approval
of official
We
While
or neutrali
the “endorsement”
ty,
Georgetown’s
may
a statement of
benefits
tolerance
be one for
organizations
pose
towards
purposes,
no
administrative
funda
challenge
they
mental
eyes
to the “moral
are not so in the
of
norms.”
the Human
Act,
symbolic
The “endorsement”
gesture,
is a
they
eyes
nor are
so in the
of
form of speech by a private, religiously
the First
“The
Amendment.
constitutional-
institution,
statute,”
entity
ity
affiliated educational
of the
as the District of Co-
adopt
free
partisan public positions
remarks,
depend
lumbia
“cannot
on the
moral and
In speaking
[University's
linkages.”
ethical issues.15
out
internal
Reply
sexuality, Georgetown
guided
on human
open
Brief
up
package
at 3. We
of
along
“University Recognition”
mission undertaken
and examine its
separately.16
with secular educational functions. The
contents
556, 559-62,
denied,
995,
public university may
impose
15. A
content-
F.2d
cert.
423 U.S.
96
422,
(1975);
speech,
Spark
based restrictions on
46
not use
S.Ct.
L.Ed.2d 369
v. Cath
America,
56,
body recognition process
University
U.S.App.D.C.
its to com
olic
167
of
80-81,
1277,
(1975);
Cover,
upon
rightness wrongness
ment
of
510 F.2d
1281-82
homo
cf.
James,
169,
Supreme
Healy
Court 1982 Term—Foreword: No-
sexual conduct.
v.
408
180-84,
Narrative,
(dis
2338, 2345-47,
(1983)
mos and
97
4
S.Ct.
21
Rights
government
power
Human
to
Applying
C.
the
Act to
is without
intrude
the spirit
“Endorsement” Element
into the
intellect or
the
domain of the
regulated.
“University Recognition”
and that
be
only conduct
Act
Interpreting
Rights
Human
so as
the
Rights
require
The Human
Act does not
require Georgetown
to
to “endorse” the
private
one
actor to “endorse” another.
thrust
groups
would be to
the stat-
“University Recog-
denial of
ute across
set
the constitutional boundaries
nition” to the student
did not vio-
also,
Speech
the Free
Clause and
where
late the statute.
raised,
religious objections
sincere
the
why,
There are two reasons
as a
Nothing
Free
Exercise Clause.
the stat-
construction,
statutory
Hu
matter of
suggests,
requires,
ute
let alone
such a
read
Rights
compel
man
Act cannot be
to
result.
regulated
express religious
party
ap
to
impli-
Because
interests are often
similar
proval
neutrality
any group
towards
or
or
cated,
Supreme
Gourt has relied on
First,
prohibits only
the statute
individual.
Speech
both the
and
Free
Free
Clause
discriminatory
“facili
denial
access to
govern-
protect against
Exercise Clause to
provided by
ties
services”
an edu
ment
the inner
intrusion into
domain. The
institution. D.C.
1-2520
cational
Code §
has
Court
made clear
state is
(1987). An
is
“endorsement”
neither. The
power
regulate
without
intellect or
Rights
provides legal
Act
mecha
Human
spirit;
actions
its rule is over
and be-
treatment,
equality
nisms
ensure
only.
interpret-
havior
In its initial decision
equality
Although
fer
attitudes.
we
Clause,
ing the
Exercise
Free
Court
vently hope
nondiscriminatory
atti
opinion
described the division between
equal
tudes result from
access
“facilities
action as “the true distinction between
services,”
Rights
the Human
Act con
belongs to the
properly
what
Church and
nothing
suggest
legisla
tains
that the
Reynolds
what to the State.”
v. United
discriminatory
ture
intended to make
States,
Otto) 145, 163,
(8
25
L.Ed.
U.S.
state
of mind unlawful
less
itself. Still
(1878).
adoption
of the Free
With
does the statute reveal
desire to force
Clause, “Congress
deprived
Exercise
was
private
express
actor
idea that
legislative power
opinion,
of all
over mere
truly
Human
held. The
was
free to reach actions
but
left
which
action,
demands
not words.
It was not
or
were
violation of social duties
subver-
an instrument of
con
intended
mind
good
The
sive of
order.” Id. at 164.
Court
trol.
Braman’s
construction
quoted
approval
a statute drafted
statute,
requiring
expres
an insincere
protect religious
Thomas Jefferson to
free-
sion
opinion,
conflicts with its literal
enough
Virginia:
dom in
is time
“[i]t
meaning.
rightful
government
purposes
of civil
Second,
already pointed
as we have
principles
for its officers to interfere when
out,
language
unless the
against peace
the statute
out
overt acts
break
into
plainly
contrary,
we
it
(quoting
Hening’s
must construe
good order.”
Id.
constitutionality.
so as
To
uphold
(1784)).
mag-
the civil
Stat. 84
suffer
“[T]o
require
powers
read
Human
into
into the
Act a
istrate to intrude his [or her]
private
opinion,
ment
actor must “en
field
and to restrain the
that one
principles
profession
propagation
dorse”
be to render the stat
or
another would
tendency, is
ill
a dan-
supposition
ute
Amend
of their
unconstitutional.
First
gerous
destroys
at once
all
speech
fallacy
free
which
protects
ment
free
and the
both
The Court
religious liberty.” Id.
conclud-
religion.17 Its
is that
exercise of
essence
provides, in relevant
permits equal
privileges
The First Amendment
access to
incidental
‘recognition."’
prohibit-
university
Supplemen-
law ...
without
part: "Congress
make no
shall
original).
(emphasis
religion];
abridging
tal Brief at
On
ing
[of
free exercise
hand,
compelled
is towards a
“endorse-
other
speech_"
amend.
Const,
the freedom
Georgetown's
objection is
ment" that
I.
directed.
ed, as a
matter
constitutional principle,
es. “To
compulsory flag
sustain the
sa-
government
are made for the
lute,”
“[l]aws
Court,
observed the
required
“we are
*20
actions,
they
and while
cannot interfere
say
that a
guards
Bill of
which
religious
with mere
opinions,
belief and
right
speak
individual’s
his [or her]
they may
practices.”
Reynolds, su-
with
open
own mind left it
public
authorities
pra,
That
has been emphatically
1183. The
precludes
Constitution
such a
reaffirmed in a later free exercise case:
result: “the
“the Amendment
action of the
concepts,—
embraces two
local authorities
freedom to
in compelling
flag
believe and freedom
pledge
to act.
salute and
but,
The first is absolute
in the nature of
constitutional limitations on
transcended]
things, the second cannot be. Conduct re
power
their
and
sphere
invad[ed]
subject
regulation
mains
protec
for the
spirit
intellect and
purpose
which it is the
Connecticut,
Cantwell v.
society.”
tion of
of the First Amendment to our constitution
supra
18,
303-04,
note
simple reason that does require Georgetown grant statute not does not give require expressions approv- GUA to Recognition” accompa- and its intangible al or tolerance. nying Insincere statements of “endorsement” stu- opinion are not Rights what the Human dent groups. requires. hand, Act On the other the stat- D. Applying Rights Human Act to require equal ute would distribution Tangible Contained in Benefits tangible attendant benefits if GUA’s denial “University Recognition” religion of these was based on the Although the student were Georgetown’s protec- RCSEA members. summary judgment entitled to against compelled expression tion is no ground denial of “Univ more and no less. ersity Recognition” including “en — trial court’s construction of the Hu- Rights dorsement”—violated the Human Rights
man
Act would
transform
stat- Act,
require Georgetown
does
statute
ute into a violation of
First
Amend-
distribute,
to equally
regard
without
to sex
compel
It would
ment.
“en-
orientation,
tangible
ual
con
benefits
the student groups despite
dorse”
the Su-
package.
tained in the same
If discrimina
preme
warning
religious
Court’s
ac-
appears
record,
tion
from the
court
may not be
“say
anything
tor
forced to
...
statutory ruling
sustain the
“on a
in conflict with
tenets.”
ground
adopted by
different from that
[its]
supra,
Braunfeld,
Holtzman,
trial court.” Max
366 U.S. at
Inc. v. K & T
Co.,
at 1146. This
see
(D.C.1977);
construction of the Human
A.2d
n. 6
Liberty
also
Mutual Insurance
Rights
required
by
Act is
its lan-
v. Dis
neither
Co.
Columbia,
guage
by
purpose
ensuring
(D.C.
trict
equal
nor
316 A.2d
1974);
Wynn,
concretely
treatment —treatment
mea-
Wells
311 A.2d
829 n.
services,”
(D.C.1973).
access
sured
to “facilities
Our
review of the record
genuine
tangi
educational
ex-
dispute
institution’s
reveals no
that the
pressed approval
“purposes
and ac-
were
ble benefits
denied on the
basis
recipient
groups.20
tivities”
sexual orientation. The
Human
was violated to that extent.21
Georgetown’s obligation under the stat-
express
point
depend
ute is not to
particular
The Human
Act cannot
regulated
view. It
to make
avail-
for its
actor’s
benefits
enforcement
*24
regard
purely
sincere,
to its students
to their
subjective,
able
without
albeit
evaluation
Rights
prejudice
sexual orientation. The Human
Act
of its own motivations. “Bias or
course,
does,
Rights
guar-
20. The Human
record
Act
of
on the
before us we have no knowl-
endeavours,
edge
proportion
equal
of
if
apart
by
what
those
antee
status
conferred
from that
any,
advocacy
specific
case,
is devoted to
of
theo-
expression.
compelled
In
the student
objects.
ry
Georgetown
of
ethics to which
sexual
groups
“University Recogni-
would be entitled to
applied,
Even if
it would mean at most
Abood
tion,”
orientation,
regardless of sexual
if that
tangible
up
benefits
that the
could be withheld
unwilling
did
status
not include an
"endorse-
only.
extent
that undetermined
ment."
Similarly,
assumption
the unfounded
that the
groups
exclusively engaged
advo-
student
cacy
Georgetown
tangi-
does not
contend that
Georgetown
repug-
idea which
of the
finds
subsidy
ble benefits constitute
of
a forced
Judge
Judge
Belson
nant blinds
Nebeker
See,
speech
opposed.
e.g.,
to which it is
Abood
Georgetown’s
the existence of
orientation
sexual
Education,
v. Detroit Board
Along with amicus Arthur B.
discrimination.
Spitzer,
(1977). Judge
S.Ct.
tion to must some extent been have Other George- conclusive evidence that prompted by the of sexual orientation its town took homosexual into orientation ac- members. recognition procedures count its is sup- by Georgetown’s plied the day
That
fact that
as he
gay
treatment of the
same
“University Recognition”
denied
to
was not
GRC at
exclusively influ-
Center,
the Law
specific
Healy
enced
President
wrote an
by
objection
“purposes
to
essentially identical letter to
and
the Chancellor
activities” inconsistent with Roman
Center, despite
of the Medical
dogma
the fact that
by
Catholic
was further evidenced
no homosexually oriented
Gottfried,
students there
University’s
Debbie
Director
applied
had ever
for such status. Presi-
of
clarifying
Student Activities.
Healy
dent
wrote:
GPGU’s status after it had obtained “Stu-
Endorsement,”
Body
dent
but had
I am sure
you
failed
are aware that the
Recognition,”
obtain “University
Gay
Campus
Students
Gottfried
on Main
have
University
change
appealed
wrote that the
Father Freeze’s
would not
decision me.
position
appeal
recently
its
“on
That
has
been denied....
what
feels would be
you
presented
interpreted
as
Since
a sim-
endorsement
be
with
and official
Center,
ilar situation
support
range
Medical
of
issues associ-
full
of
point
ap-
want to
out that this
ated
decision
with this
Letter
D.
cause.”
from
plies
equally to the Medical
(Jan.
1980)
Center.
(empha-
Gottfried GPGU
added).
sis
At
no time has
S.J.,
Healy,
Letter from President T.
by
range
defined what it meant
“the full
8, 1980).
McNulty (May
Chancellor M.
issues”
gay
associated with the
student This action amounted to an adverse deci-
groups, despite its insistence that Roman sion without
on the mer-
any consideration
Catholic
provision
doctrine favors the
its,
light
criteria neutral
sexual
equal
political rights
civil
orientation,
to homosexu-
“purposes
and activities”
ally
persons
oriented
that its
group might
of whatever
be formed some-
objection
pro-
was directed
explicable only
time in
future.
It is
if
motion of homosexual conduct. Gottfried’s Georgetown
predominantly
considered
repeated
was
by
statement
later
Dean
homosexual orientation
some future stu-
Schuerman,
Center,
University
group
who
wrote
dent
at the Medical
and not
activities,”
endorsement, support
just
specific “purposes
would not lend its
or
approval
positions
by
gay
to “the
taken
to be
factor of intrinsic relevance
”
grant
Recognition.”
That a
range
movement on a
issues
full
which,
predominantly
major
“the
homosexual
orientation
activities and issues
tangible
be
definition,
would
fatal to a
benefits
bid
gay orga-
associated
beyond
at the
establishes
Medical Center
Dean
nization." Letter from
W. Schuer-
Georgetown was not oblivi-
doubt that
(Feb.
1980)
man to
(emphasis
GPGU
application
in its
ous to sexual orientation
added).
McCarthy
Similarly,
Dean
when
“Recognition
Criteria.”
application
turned down GRC’s
at the Law
Center,
University
he wrote that the
apparent
correspondence,
It is
subsidy
support
lend its official
Braman
all of which was before
a gay
organization
law student
because
granted summary
judgment
when he
many
interpreted by
issue,
“would
discrimination
positions
endorsement
taken
closely
denial
benefits was
*26
gay
range
movement
issues."
specific “purposes and activities” of
tied to
full
of
Jr.,
McCarthy,
Letter from Dean D.
to GRC
groups promoting
the
the homosex-
student
(Feb.
1980)
26,
added). George-
(emphasis
by
ual conduct condemned Roman Catholic
town
groups
inescapable
thus ascribed to the student
The
is
doctrine.
conclusion
“purposes
predominantly gay
not
of
only
composition
and activities” which that the
had,
groups played at
some
they may have
also
of
the student
least
but
a host
Council,
Georgetown.
in
treatment by
By
City
explained
role
their
Rule
to Council
objecting
groups’
to the
regula-
assumed members that
the District
because
connection,
definition,”
“by
range
Rights Act,”
to a “full
“parallels
tion
the
the
Civil
“gay
associated
the
public
of issues”
move-
could look to the federal model to
ment,”
than
specific “purposes
rather
concerning
many
questions
answer
of their
inconsistent with its Roman
activities”
the
of the
administration and enforcement
tradition, Georgetown engaged in
Catholic
Rights Act.
of
Human
District
Columbia
stereotyping
the
unrelated to indi-
kind of
Council,
City
Report on
Committee
Title
by
vidual merit that
forbidden
the Hu-
Law,” (Oct. 15,1973)
Rights
“The
Human
short,
In
Rights
man
Act.
the record re-
(available
(herein-
Building)
in the District
genuine
veals
no
doubt
II”);
Report
after “Parker
see also District
nondiscriminatory
asserted
basis
its ac-
City Council,
Committee Re-
Columbia
by preconceptions
in fact
tion was
tainted
Rights Law,”
port on Title
“The Human
gay persons. Georgetown
about
not
did
7, 1973) (available
(Aug.
the District
apply “Recognition
equal
Criteria” on an
(hereinafter
I”).
Building)
Report
“Parker
regard
basis
all
without
to the
Report
specifically
The Parker
II
cited
sexual orientation
their members.
Griggs
“upheld
appli-
noted
that it
the
cability
Rights
of the Civil
cases of
finding that
Braman’s
discrimination.”
at 3
unintentional
Id.
on the
discriminated
basis
(emphasis
original).
supported by
sexual orientation is further
bill,
express
During
passage
provision
his
reliance on
the
of the
the Coun-
another
despite
Rights
oppo-
the
cil retained the effects clause
Human
Act. The effects clause
A
provides
“[a]ny practice
employers.
sition from local
submission
which has the
violating
Metropolitan Washington
consequence
any
effect or
the
Board
provisions
Telephone Compa-
and the C P
chapter
of this
shall be
Trade
&
ny
preparation
in the
discriminatory
deemed
resulted
a memo
to be
unlawful
practice.”
(1987).
reaffirming
members
Code 1-2532
distributed Council
D.C.
Un
§
section,
Report’s interpretation:
despite
“The
der that
the absence of
Parker
discriminate,
Supreme
practices
Griggs
intention to
Court
v. Duke Power
are un
held
they
lawful if
that unintentional
discrimination
disproportionately
bear
Rights
just
under
Act as
protected
independently
as liable
the Civil
class
are not
District of
justified for some
intentional discrimination.”
Co-
nondiscriminatory rea
Council,
City
Memorandum on Pro-
legislative history
son. As the
lumbia
demon
strates,
posed
Title
at 5
Draft Clarifications:
imported
the Council
into the Hu
1973) (available
(Oct. 11,
Act,
in the District
Rights
man
way of the effects
clause,
(emphasis
original).
The
Building)
concept
impact
dis
disparate
dis-
“[wjhile
memo
unintentional
developed
Supreme
crimination
added
by the
Co.,
crimination would be unlawful
Griggs
Court in
[under
Duke Power
finding
Rights Act], a
of such
Human
activities” organizations— of their student empts it from the Rights Human Act’s creep to decisionmaking. By into its fail- tangible edict distribute the benefits ing objections to confine its “purposes equally regard without to sexual orienta- and activities” which it found offensive for disagree. tion. We reasons independent of the orienta- sexual students, tion of Georgetown discrimi- court, In the trial due to position organiza- nated. The gay “a prior construction; statutory Braman’s “by tion” is definition” associated a premised Bacon free her exercise “full range of issues” reveals that sexual analysis on the compli mistaken belief that Georgetown’s orientation was a factor in Rights ance with the Human Act would tangible denial of benefits. That statement require Georgetown provide religious established an intentional violation. D.C. tangible “endorsement” as well as benefits. (1987); and, event, Code 1-2520 § The true issue is a much more limited one. under Rights the effects clause the Human It is whether the forced distribution of prohibits Act also unintentional discrimina- tangible regard various benefits without tion, id. Finally, 1-2532. of the none § orientation, sexual severed from the direct Human narrowly Act’s ex- drawn required by compelled “endorsement” ceptions Georgetown avails here.22 grant “University Recognition,” imposes having Human vio- been George an unconstitutional burden benefits, respect lated with to the religion.23 town’s exercise of The answer proceed we free exercise is no. defense.
IV A. The Free Exercise Clause GEORGETOWN’S FREE provides The Free Exercise Clause EXERCISE DEFENSE “Congress pro shall no law make ... hibiting religion. the free Georgetown claims that Exer- exercise” of the Free Const, cise Clause of First ex- Amendment amend. I. This terse check on 1056, l-2503(b) (1987) Religion, (permitting § 22. See D.C.Code tion 91 HarvJL.Rev. 1083-89 religious organizations, political (same). hand, (1978) or order to they argue On the other promote religious political principles, their or asserting barred from give preference persons religious of the same free exercise defense the Establishment l-2503(a) political persuasion); or see also id. § Again, Clause of the First we Amendment. dis ("business necessity” exception of unin- in cases agree. ica, University v. Catholic Amer Granfield discrimination); 1-2513(a) (ex- tentional id. § 183, 191-93, U.S.App.D.C. 174 530 F.2d ception employment practices for bona fide 1035, (no standing assert 1043-45 Establish seniority systems); employment id. benefit seeking only ment claim "incom Clause when 1-2513(b) (exception police § officer plete transitory prohibi of the enforcement firefighter programs cadet for minimum making the clause” tions of and without limits); (exception age maximum id. 1-2518 § litigation), government party responsible official leasing practices in rental or for owner-occu- 68, denied, t. 97 S.Ct. 429 U.S. 50 cer accommodations); l-2521(a) pied (excep- id. § (1976). reject 81 L.Ed.2d We also student practices single-sex tion in education for schools University’s groups’ accept contention that the level); graduate (exception below id. 1-2524 § funding on ance of certain condition federal approved plans). for action affirmative worship “religious that it not be used for or a contend, 23. The on the one 1132e(c) (1982), activity,” sectarian 20 U.S.C. § hand, secular functions operates right as a to raise a waiver of its free educational institution meets none Murphy exercise defense. v. Villanova Universi established criteria education (E.D.Pa.1982), aff’d, F.Supp. ty, 547 520-21 permit which would it to invoke the Free Exer- (3d Cir.1983) (no standing to sue 707 F.2d Richardson, disagree. cise Tilton v. Clause. We pri of federal statute in absence of for breach 403 U.S. action); Club, vate cause of Sierra California (1971) (institution may both L.Ed.2d 790 have 287, 292-93, characteristics); secular see also 14-6, and sectarian (1981) (setting forth L.Ed.2d standards L. (1978) (definition -7 Law §§ Constitutionai. Tribu, American private implying under federal cause of action religion under more liberal statute). Free Exercise than under Clause Establishment Clause); Note, Towards Constitutional Defini-
31
power
given
pulsion
grant
tangible
has
rise to num
benefits with-
government
controlling principles.
“University Recognition.”
who in
ber of
One
out
This case
nothing”
Free
in order to
litigated
vokes the
Exercise Clause
“all or
has been
on the
gain exemption
govemmentally
from a
im
basis
the trial court's construc-
reflected
obligation
initially
posed
must
establish
Human
Act.
is never-
tion of the
It
regulation
compliance
that forced
with
Georgetown has
undisputed that
theless
impose
religious
or her
will
a burden on his
consistently refused to furnish the addition-
Although
burdens on reli
exercise.
not all
groups,
tangible
al
benefits to the student
unconstitutional,
gious
an ex
exercise
its
throughout
has linked
refusal
religious prac
emption accommodating the
teachings. Georgetown is
Roman Catholic
govern
granted
tice must be
unless
extending
opposed
apparently
the addi-
compel
it has a
ment can demonstrate that
tangible
tional
benefits because
its belief
ling
overriding
enforcing
or an
interest
establishing
life-
another normative
so,
challenged regulation.
If
the court
conflicting
style
norms”
with
“moral
promotion
must
assure itself that
obligations as
violate its
a Roman
governmental objective
compelling
out
objection
This
is not
institution.
Catholic
imposed upon the
weighs
prac
the burden
bizarre,
nonreligious
clearly
so
in na-
“so
moreover,
and,
religion
tice
protection
to be
ture as not
entitled
challenged regulation is the least restric
under the Free Exercise Clause.” Thomas
government
tive
which the
can
means
Board,
supra,
v.
450
715-
Review
U.S. at
See,
e.g., Bob
compelling
attain its
end.
16,
Thus,
at 1431.
101 S.Ct.
while
States,
v.
University
461
Jones
United
of a direct “endorsement” has been
threat
2017, 2034-35,
574, 602-04, 103
U.S.
S.Ct.
defused,
Georgetown’s primary reli-
States v.
(1983);
United
While not lightly to be
ed,
strong feelings
the Council’s
do
Modern research on sexual orientation
began
investigation
resolve the
Alfred
issue whether its ban on sexual
C.
represents
Kinsey
orientation
his associates into human sexu-
discrimination
way
pioneering
paved
Civil
Since the District
Columbia’s
sures which
federal
area,
legislation
statutory protec-
seq.
in this
similar
42 U.S.C.
2000e et
§§
Act of
Rosen,
tions have been enacted in
the State of
(1982).
1982
generally, e.g.,
The Law and
See
Wisconsin. See codification in
sec-
scattered
Employment, 53
Racial Discrimination in
Calif.
(listed
tions of
in West General
Wis.Stat.Ann.
Sutin,
(1965);
Experience
775-76
The
L.Rev.
Index
under “Discrimination —sexual or-
1986
Employment
Com-
State Fair
Commissions—A
ientation"). Many other states have executive
(1965);
Study,
parative
Vand.L.Rev.
cf.
prohibiting
discrimi-
orders
sexual orientation
Liebmann,
York State Ice Co. v.
New
addition,
public employment.
nation in
(1932)
262, 311, 52
violence,
prejudice
social
sometimes
cy” challenge
takes
sodomy
applied
statute as
unprovoked
defendant);
the form of
attacks
gay
on those
Gay Law Students As-
Gay
perceived
gay.
to be
See National
Telephone
sociation
&
Pacific
Anti-Gay/Lesbian
FORCE,
Co.,
458, 474-75,
Telegraph
24 Cal.3d
595
Task
Victimiza-
(1984); Harry,
592, 602,
14,
Derivative
Cal.Rptr.
(1979)
Deviance: P.2d
156
tion
Extortion, Fag-Bashing,
(equal protection
The Cases
guarantee
of state consti-
Men,
Gay
Shakedown
19 CRIMINOLOGY
by public utility’s
tution violated
exclusion
(1982);
Humphries,
Russo
gay people
&
Homosex- of
employment opportuni-
Encyclopedia
Crime,
ties).
uality and
in 2
866,
(S.
869-70
Kadish
CRIME
Justice
If we were to measure these characteris
1983).
ed.
against
tics as
these standards we would
persisted
Such
discrimination
has
find that scientific literature characterizes
throughout
history.
most of
generally
See
sexual orientation as a status which is “de
Homosexuality:
History
Bullough,
termined
causes not within the [individu
V.
A
Gay/Lesbian
(1979);
control,”
J.
Katz,
Lucas,
see Mathews v.
al’s]
A
Almanac:
Documentary
Gay
(1983);
495, 505,
2755, 2762,
J.
Katz,
U.S.
96 S.Ct.
49 L.Ed.
New
History
(1976);
(1976)
2d 651
(discussing illegitimacy), and
American
Historical
Per-
spectives
Homosexuality
(S.
Licata & R.
generally subject
one not
change,
see
1981)
Petersen eds.
(reprinting 6 J. Homo-
Richardson,
Frontiero v.
sexuality
(1980-81)).
perhaps
its most
1764, 1770,
93 S.Ct.
37
1, 28-29,
1278, 1294,
normal,
perpetuating. Many
seemingly
411 U.S.
36
(1973) (discussing
neutral, operations
society
L.Ed.2d 16
wealth dis
of our
create
crimination). Finally,
legal
due to the
and
stereotyped expectations
justify
un-
penalties commonly triggered by
results;
social
equal
unequal
in
results
one
public acknowledgement
homosexuality
inequalities
opportunity
area foster
bisexuality, persons
may
so oriented
others;
accomplishment in
lack
and
constitute “discrete and insular minorities”
opportunity
accomplishment
and
con-
traditionally
whose interests have
been ne
original
engen-
prejudices
firms the
or
glected by
operation
political
“the
of those
oper-
ders new ones that fuel the normal
upon
processes ordinarily to be relied
generating unequal
ations
results.
protect minorities.” See United
v.
States
process of
in-
...
discrimination
[T]he
Co.,
144,
Products
304 U.S.
152
Carolene
many aspects
society.
volves
of our
No
58
n.
82
n.
S.Ct.
783-84
L.Ed.
single
sufficiently explains
factor
dis-
(1938);
see also Massachusetts Board
crimination,
single
and no
means will suf-
Murgia, supra,
Retirement v.
427 U.S.
of
at
fice to eliminate it. We must continuous-
(discussing elderly);
The the structure and function of all our eco- eradicating nomic, social, state has in discrimination political and institutions in against homosexually bisexually or ori- part order to understand their in main- fostering ented include of individual taining countering discriminatory pro- dignity, the creation of a climate and envi- cesses. in which
ronment each individual can utilize identify precisely It difficult potential his or her to contribute to and aspects discriminatory processes all society, equal protection benefit from assign parts appropriate those their life, liberty property weight. understanding But discrim- how Founding guaranteed Fathers to us all. ination works starts with an awareness process, Speaking of in other ar- it is a and that to avoid discrimination eas, it, perpetuating carefully we assess the United States Commission on Civil must consequences has noted that discrimination hurts the context and of our subtle, society everyday actions. ways that are and often unseen: Rights, U.S. Commission on Civil Affirma- Discriminatory actions individuals Dismantling tive Action in 1980s: organizations only pervasive, are not (1981); 12-14 of Discrimination Process occurring society, every sector of but Brest, Supreme see also Court cumulative, limited nei- also with effects the Anti- Term—Forward: Defense of particular ther to the time nor the struc- Principle, 90 Harv.L.Rev. discrimination they This tural area which occur. (“Decisions (1976) assump- based *34 discrimination, therefore, process of ex- worth and selective indif- tions of intrinsic across, generations, orga- tends across stig- psychological injury by ference inflict nizations, in and across structures social matizing their victims as inferior. More- self-reinforcing cycles, passing the disad- over, tend to acts of discrimination because generation in
vantages by incurred one patterns, their victims pervasive occur generations many one area to future frustrating, especially cumulative suffer related areas. debilitating injuries”). and
[******] “As long as homosexual men and wom- en, groups people who well as other interlocking as process of discrimina- [The ma- as ‘different’ tion, events, simply seen now routine- by past started citizens, continue to be of American penal- jority ly privileges on some and bestows thinking, our stereotypical through process This is also self- viewed ties on others.] 38 price
society
pay
inevitably
case,
will
exacted
In this
compelling equal access to
ignorance.”
by fear and
tangible benefits,
requiring
without
Homosexuali
Study
Diversity Among
ties —A
intangible
Men
“endorsement”
contained in
25;
supra,
Women,
also
see
EEOC “University Recognition,” imposes a rela-
and
477,
Mississippi College,
v.
626 F.2d
489 tively slight
burden on
reli-
(5th
(“the
Cir.1980)
government has a com gious practice.
Georgetown
As
itself con-
pelling
eradicating
interest
discrimina
cedes,
only tangible
plain-
benefits
“[t]he
forms”),
denied,
tion in all
cert.
453 U.S.
tiffs
grant
could receive
of official
912,
3143,
(1981);
69
S.Ct.
L.Ed.2d 994
recognition are relatively insignificant—
College,
Russell
Belmont
554 F.Supp.
mailing
such
computer labeling
ser-
667,
(M.D.Tn.1982)(“this
nation has a
Supplemental
vices.”
Brief at 2.
It then
strong public policy against discrimination
argues
perquisites
minor
can-
“[s]uch
only
not
on the basis of sex
but
all
outweigh
the substantial burden on the
forms”);
address Melvin Boozer to
cf
University’s religious liberty that would
(“I
1980 Democratic National Convention
compelled recognition
flow from
of the stu-
nigger,
know what it
means
be called a
groups.”
dent
argument
Id. But its
fails
I
know what it
means
be called a
because the “substantial burden” to which
faggot,
up
and can sum the
difference
compulsion
grant
intangi-
refers —
none”),
Pearson,
one word:
quoted in
Ho
ble “endorsement” contained in
Rights
mosexual
Activist Melvin Boozer
Recognition”
required by
the Hu-
—is
Post,
Washington
Dies at
Mar.
Rights
By Georgetown’s
man
Act.
own
1987, B6,
col. I.25
admission,
Rights
what
the Human
Act
consider that
We
the Council of the Dis-
actually
require equal
does
distribution of
—
press-
trict
Columbia acted on the most
tangible
considerably
benefits—is
less
ing of
incorporating
needs when
into the
burdensome.
Human
Act its view that discrimina-
grave
tion based on sexual
orientation
Our conclusion that the
on reli-
burden
damages society
evil that
as well as its
gious liberty
outweigh
does not
the Dis-
immediate victims. The
of sex-
eradication
compelling
trict’s
interest receives addition-
compel-
ual orientation
discrimination
support
al
from the facts that
ling governmental interest.
voluntarily gives
groups
the student
Balancing
Compelling
D.
Govern-
fewer
benefits that come with
against
mental Interest
the Burden
Body
“Student
Endorsement” and that it
Religious
on
Exercise
objected
groups
has never
to the student
meeting
campus.
Without interference
Given that the District of Columbia
administration,
from the
compelling governmental
has a
interest in
are an active force in the
eradicating sexual orientation discrimina
GPGU,
university community.
for exam-
tion, we must determine whether that inter
ple,
meetings
campus
has held
almost
outweighs
est
the burden enforcement of
discussions, speakers,
weekly, hosting
impose
Human
Georgetown’s religious
Finally, the
exercise.
educational and social events.
(state
holding
child labor law
Bacon erred in
V it, it, require any part us rule invalid. CONCLUSION require Balancing governmental
The Human Act does not interest grant “University Recognition” be- unlawful institutional discrimina- deterring cause, particular George- practices, against University’s in the tory scheme at own University, rights town under the free exercise clause of the that status includes reli- amendment, conclude, giously recipi- present based first “endorsement” circumstances, nothing ent in the re- group. student But the Human University, quires Act does demand that make over its constitution- equally objections, publicly its “facilities avail- al associate itself or and services” support goals or regard affirmatively able without orientation. activities to sexual gay organizations. There Those “facilities and services” include the tangible require the Univer- compelling benefits that come with no reason “Universi- unlawfully ty is it discrimi- Recognition.” Georgetown sity denied to do so. Nor do so. University to fail to natory sexual for the benefits on the basis of *36 it, differ holding necessarily holding I understand and to of this as consequence (au- opinion approach the of the lead Georgetown’s refusal to allow with means that Mack) analyzing the by Judge its name is not student to use thored discrimination. For the same rea- free exercise claim. unlawful sons, groups cannot demand the student University funds for the advo- grant of I. circumstances, In the cacy of its causes. I court’s decision to- As understand the support compelled financial amounts part in part and reverses day, it affirms support. Again, the compelled affirmative upholds of the trial court. It decisions constitute unlaw- failure to so act does not finding Judge Braman’s of discrimination does not violate the ful discrimination and Rights Act to the of the Human violation Act. on the finding that was based extent course, remains, question of There withholding bene- University’s of material University may tangible facilities the what gay groups. To the fits from the deny. Conceptually there is a grant or ruling had en- Braman’s extent premise that between the critical difference intangi- compassed the denial whatever compelled to Georgetown should not be “University are connected with ble benefits adopt support the activities publicly today opinion re- Recognition,” the court’s allowing the groups, as contrasted holding matter of statu- as a verses use, groups, of as is so with other student today’s decision Finally, tory construction. to other members basic facilities available Judge Bacon’s determination reverses Thus, the University community. of the Rights inAct enforcement of the Human related meeting halls and
fair access to case would work circumstances of this not, in- my opinion, needs would basic infringement of the unconstitutional rights. upon University’s unduly trude free exercise University’s rights under the of the first amendment. clause Human I that our Lastly, would observe comprehensive. It Rights Act is broad and requires edu- The Human possible discrimina- range of covers a wide provide “facilities institutions to cational Necessarily decisions tory practices. our equal without services” on an basis dis- of the asserted will reflect nature per- regard various characteristics crimination, his- presence or absence of served, including orienta- their sexual sons ques- which surround toric conditions “facilities and services” That these tion. tion, intent, precedent. and case legislative tangible should be only items can include me, instance re- decision in this For language of the plain apparent from the not, and does considerations flects those notes, statute, and, opinion lead the lead pur- weakening of the signal a any way, to construe obligation op. at from our to serve. intended poses the Act was constitu- as to avoid in a manner statutes Benson, questions. Crowell tional concurring, NEWMAN, Judge, Associate L.Ed. MACK, FER- Judges with whom Associate Therefore, the consti- (1932). analyzing TERRY, to Part VI: join as REN and claim, concern ourselves we need tutional that ac- those benefits with conclusions join I the court’s group’s elevation from company a student violated University has Body Endorsement” “Student byAct one with Human District of Columbia Recognition.” “University We with one associated tangible benefits denying the of: offi- consist told that these benefits stu- Recognition” mailbox; use of of a cially approved use People of groups Gay dent Service; mail- use of Computer Label Rights Coali- (GPGU) Gay University apply services; opportunity ing and the ground of (GRC) prohibited on the tion ser- funding. these facilities That orientation, the Univ- and that sexual their in this plaintiffs denied to vices were is of no avail. defense ersity’s free exercise of their basis impermissible on the court’s case clarify the separately write
41
sexual orientation
seriously
cannot
lenged
be dis-
grounds
on First Amendment
is far
puted on this record.
more deferential than constitutional review
regulations designed
of similar laws or
II.
(free
society”)
clause).
civilian
exercise
As for
free exercise de-
There
be sound
why
reasons
courts
fense, I
opinion
believe that the lead
wres-
defining
have avoided
explicitly particular
unduly
question
tles
with the
of whether
standard of
legislative
deference to
find-
the District’s
in enforcing
interest
its anti-
ings
assessing
when
a constitutional claim.
discrimination statute
“compelling”
is a
Supreme
The
recognized
Court has
interest,
governmental
required
for it to
degrees
leg-
of ‘deference’ to
“[announced
withstand
scrutiny.
first amendment
See
judgments, just
islative
as levels of ‘scruti-
Board,
707,
Thomas v. Review
450 U.S.
ny’ which this
ap-
Court announces that it
718,
(1981).
101
at 1413
legisla-
S.Ct.
plies
particular
by
classifications made
ture of the District of
spoken
Columbia has
legislative body, may all too readily become
clarity
impor-
unmistakable
of the
facile abstractions used to justify a result.”
regards
tance with which it
the eradication
57, 69-70,
Rostker v.
453
Goldberg,
U.S.
of discrimination on the basis of sexual
2646, 2654,
(1981).
101 S.Ct.
Barry,
U.S.
S.Ct.
Thomas,
ry.
supra, 450 U.S. at
See
(1987) (free
clause).
L.Ed.2d 141
speech
1432;
Verner,
101 S.Ct. at
Sherbert
While
pre
courts have not delineated the
398, 407,
10 L.Ed.
deference,
cise
they
contours of this
have
(1963)(refusing to credit state inter
2d 965
recognized,
implicitly,
sometimes
that some
supported by the record
ests that were not
See,
measure of deference is warranted.
below).
not raised
e.g.,
Weinberger,
Goldman v.
(1986)
why
we owe some
The second reason
determination expertise (noting recognition supra, at 1 that twelve terest is a making such as- political co-spon- branches had the thirteen Council Members sug- second reason As this bill). legislative sessments. We owe that sored question of deference on the gests, our degree of deference. some assessment *38 “compelling” governmental inter- is a what “The necessarily of a limited nature. est is IV. govern- is not to the deference we owe judgment that the statute legal ment’s of deference courts measure Whatever constitutional, to their factual discus- but that legislative judgment, may give to depth of the ... sion of the nature where, appropriate especially deference Finzer, su- interests that are involved.” here, of record that the there is evidence as 29, F.2d at pra, U.S.App.D.C. 255 798 competing claims legislature was aware original). (emphasis in 1460 Rostker, magnitude. See of constitutional 72-74, 101 at 2655- Hence, considering supra, a consti- 453 U.S. at S.Ct. court in exemption religious Congress’ exclusion (constitutionality claim for a tutional 56 not to narcotics laws military supported from the from draft “cho[]se of women appellant’s suggestions that bal- accept revealing that the exclu legislative record interests, take into ancing competing we legislative choice and a considered sion was ” “ dangers from minimizing account evidence ‘unthinkingly’ or as the not enacted “ abuse,” marijuana and reasoned way byproduct of a traditional ‘accidental judg- substitute its court will not “[t]his ”) (citations thinking females’ about legislature....” the ment omitted). 1018, States, 471 A.2d v. United Whyte deci- free exercise Supreme Court’s (D.C.1984). Similarly, in v. 1021 Wisconsin may give the Court suggest sions 1526, 205, Yoder, 32 92 S.Ct. legislative choice to the more deference Court, (1972), Supreme L.Ed.2d exemption objector seeks religious when free exercise claim upholding a while already ad- statutory scheme from a for ex- parents their Amish children and religious adher- exception for mits of some com- emption aspects from of Wisconsin’s example, in United States ents. For requirements, cautioned pulsory education 1051, Lee, 71 L.Ed. 102 S.Ct. 455 U.S. circum- great that “courts must move (1982), to extend refused 2d 127 Court exemptions religious creating spection” exemption for security tax’s the social requirements generally applicable self- employers Amish Amish to other employed legis- are not school boards since “courts doing, the Court In so employees. latures, to determine ill-equipped are accommodated, “Congress of a has aspects ‘necessity’ of discrete noted comprehen- compatible education.” with a program compulsory extent State’s legislatures, practices If program, at 1543. Id. at sive national courts, exper- have distinguished from of their it a violation who believe those drug and the dangers security abuse tise in the social participate faith children, certain- then educational needs of the courts have Congress and system.... warranting judicial ly they expertise have flowing from to the needs sensitive been necessity of antidis- deference on the social Clause, every person but Free Exercise legislation. crimination from all the burdens be shielded cannot aspect of exercising every incident to was of Columbia Council The District Con- religious —beliefs right practice and non- “importance of both the confident line_” 260-61, 102 Id. gress drew a Human of the character” controversial 1057.1 Dis- S.Ct. at Rights purposes. Council Act’s objection religious States, espoused a to those who Similarly, United in Gillette v. particular but form" 28 L.Ed.2d to "war in (1971), the Selective refused to extend the Court wars. objector exemption Service Act’s conscientious Act, importance of the assert- enacting Rights Human assessment of the In interest, ig- a court risks governmental ed Council included a sec- District of Columbia judicial task of noring the more traditional religious permits institutions to tion that ap- to determine the comparing like cases co-religionists in favor of discriminate instant one. so propriate outcome doing designed so is to further when forget very “the essence of doing, it would religious principles.2 Political institution’s upon attend- judicial method to insist similarly to dis- organizations permitted [the] 15. A ing cases.” Id. at to such other of those of the same criminate favor free Supreme Court’s brief review of By incorporating political persuasion.3 that the jurisprudence assures us exercise exceptions into the Human these its burden of demon- government has met Act, sig- the District of Columbia Council enforcing strating interest in that its special awareness of the role that naled its outweighs Human political plays in our belief *39 religious exemption. University’s claim for time, order. At the same constitutional however, prohibiting in discrimination variety of Supreme has held a Court religion political grounds other than or af- to sus- governmental interests sufficient filiation, any or in circumstances other than regulations facially neutral laws or tain by the terms of these ex- those embraced challenged religious objectors under the by ceptions, plain made that no the Council Goldman, supra, clause. In free exercise exception should be tolerated. In further 1314, 106 at the Court held that S.Ct. view, legislature implicitly taking this our permit- military’s “uniformity” in interest importance determined that the of outlaw- regulations to ted it to enforce its dress ing on the basis of discrimination serviceman prohibit sexual an Orthodox Jewish outweighs religious competing orientation duty. wearing yarmulke from a while deter- Lee, 260, claims. This least restrictive means 455 at 102 S.Ct. at supra, In U.S. mination, along 1057, assess- public with Council’s interest in main- the “broad gov- importance prevented ment of the overall of the ex- taining system” a sound tax interest, ernmental is entitled to at least a emption Security tax for an from Social modicum of this court’s deference.4 Amish. employer employing Amish other Brown, 599, 603, In v. 366 U.S. Braunfeld
V. 1144, 1146, (1961), L.Ed.2d 563 81 S.Ct. 6 “improving the ground interest in By failing to “middle the state’s walk that health, general well-be- safety, morals and judicial a House of Lords and the between permitted enforcement ing of citizens” any of limitation on the other ... abandonment closing against merchants branches,” Sunday laws likely forget “what a court is to Saturday In law, a Sabbath. qualities its who observed surely the main 165, 158, Massachusetts, Wechsler, neutrality.” its Prince generality and 438, 441-42, (1944), L.Ed. 645 88 64 S.Ct. Principles Neutral Constitu- Toward society protect the wel- “interests Law, tional 1, (1959). 16 73 HaRV.L.Rev. state to permitted the fare of children” legislative-like in ab initio By engaging a 2, supra. l-2503(b) (1981) provides: See note 3. 2.D.C.Code § Nothing provisions of this contained in the any chapter suggest bar reli- re- shall be construed to that the least Some commentators 4. orga- any gious political organization, or or means/compelling interest assessment strictive operated or education- Note, for charitable nization al Exemp- Religious single inquiry. See is a supervised or purposes, operated, which is A Exercise Clause: Model Under the Free tions by reli- with a or in connection controlled 350, Authorities, 359 n. Competing 90 Yale L.J. limiting organization, gious political from or against equating (1980). caution Others 55 sales, housing employment, accommodations, or rental of or exemption denying to a interest state’s giving to or or admission generalized interest objector religious with its religion or preference persons same program, underlying L. maintaining rule or by such political persuasion as is calculated at § Constitutional Tribe, Law American polit- organization promote or (1978). 855 or principles which it is established ical maintained. 44 Id. 230, plication a 92
apply its child labor law bar
Jehovah’s
the law.
at
S.Ct. at
supra,
distributing religious
Whyte,
471 A.2d
Witness from
litera-
at 1021
Cf.
(refusing
grant
religious exemption
ture on the streets.
“plainly
since
enforcement of the CSA
contrast,
By
in those cases which
oper-
directly
Substances Act]
[Controlled
upheld
challenge
free
Court has
exercise
public
protect
dangers
ates to
government to
required
make ex-
drug
repurcussions”).
abuse
its
ception
general
its
scheme
order to
Moreover, the Court was mindful that it
religious objector,
has
accommodate
dealing
“way
of life
was
with
...
government presented
made clear that the
rights
no
interferes with
interests
support
of interests to
the weakest
others,” Yoder,
224,
supra,
406
U.S.
refusal
to make such an accommodation.
Virginia
also
See
West
at 1537.
Thomas,
supra,
719,
450 U.S. at
Barnette,
Board Education v.
State
Sherbert, supra, S.Ct. at
63 S.Ct.
87 L.Ed.
U.S. at
Court
(1943) (“The
freedom asserted
found that
the states' asserted interests
bring
appellees does not
them into
these
or had
support
were without
the record
rights
with
asserted
other
collision
in-
raised below. These cases
been
individual”).
contrast,
By
particu-
what
unemployment compen-
volved
denial
governmental
larly compelling about the
employees
sation
who
left their em-
had
in this case is
it di-
interest asserted
ployment
comply
job
rather
than
rights
against
pits
of others
rectly
the civil
*40
task, Thomas,
schedule, Sherbert,
work
or
religious objector.
the claims
the
religious
that conflicted with
beliefs. The
compel
government
reli-
While
cannot
argued
granting compensation
states
Braunfeld, supra,
belief,
gious
or other
lead to
and dilu-
fraudulent claims
1146,
Cantwell
603,
at
45
cees,
609, 626,
U.S.
104 S.Ct.
enforcement
of the Human
Act’s
(1984),
ute, the “public Court reaffirmed that ac- VI. ‘plainly
commodations laws
compel-
serv[e]
”
ling
highest order,’
state interests of the
Finally,
Belson,
note that
concur-
quoting Roberts, supra,
ring
part
and dissenting
part,
has
Finally, Part discuss under the exercise free effort, Judge Nebeker, clause of the first amendment. joined by Belson’s protect Georgetown first to on amendment Mack, however, Judge citing “deeply the grounds having grant plaintiffs from to rooted doctrine that a constitutional issue tangible altogether is access to the benefits is possible, to avoided” to the extent misplaced. Judge As Belson acknowl- first attempts to decide the case under the edges, university expressly the waived at and, consequence, purports Act not to as a argument any objec- oral first amendment question as reach the constitutional insofar (called providing tion to such “rel- benefits pertains intangible, status element brief). atively insignificant” in its His 16, Ante “university recognition.” therefore, altogether analysis, gratui- is argues compelled & 13.2 She n. event, Supreme tous. In the Court recognition” rights gay Judge actually on relies cases which Belson compelled speech groups would constitute position. support plaintiffs’ values, endorsing univ- groups' the that the first amendment
ersity has an absolute
right
any way,
to
in
speak
be forced to
I.
Act, therefore,
the
and that
Human
require
properly
cannot
be construed
A.
speak
derogation
of its
university to
banc,
appeal,
On
and en
both
division
Because, however,
religious principles.
Georgetown
ques-
never
University has
nondiscriminatory
expressly
mandates
ruling
univ-
tioned the trial court’s
that the
services,” Judge
access to “facilities and
ersity’s
“recognize”
gay
the two
refusal
first
squarely
Mack finds she must
face the
rights groups
organiza-
as official student
problems
forcing the univ-
amendment
Hu-
tions violates the District of Columbia
provide tangible benefits. She
ersity to
prohibition against dis-
man
Act’s
that the District of
concludes
Columbia’s
by
as
crimination
an educational institution
enforcing
the Act
compelling interest
to use of its “facilities and services” based
first
substantially outweighs
upon
withholding
D.C. Code
“sexual orientation.”
interest
facili-
amendment
fact,
1-2520(1) (1987).
Georgetown
gay rights
support
ties
from student
§
result, according
Judge
has
in its
desire “not
As a
groups.
stated
brief a
gain
ruling”
Mack,
plaintiffs
appeal separately that
and thus has
are entitled
litigation
no
sought
appeal solely
itself
benefits from
but
to defend
Act,
acknowledged
ground
applied, is
status.3
statutory
supporting
statutory
have on the
issue
parties
issue
brief we
2. When
have not raised
it,
upon
appeals
passed
or a
Supreme
curiae
court
has
was volunteered
amicus
commonly
has
addressed the
response
Court
Spitzer. Appellants
filed
Arthur
issue to "'ascertain whether a construction
reply brief.
their
fairly possible by
is
which the [con
statute
”
question may be avoided.’ United
stitutional]
States v.
Although
that the student
3.
Mack holds
Grace,
171,
103 S.Ct.
461 U.S.
"University
right
groups
no
to the status
have
1702, 1706,
(1983) (quoting Cro
L.Ed.2d
75
736
university has
recognition,"
that the
she notes
285, 297,
Benson,
v.
U.S.
52 S.Ct.
well
285
prevent
plaintiff
dropped its counterclaim
(1932)).
invariably,
76
Almost
how
L.Ed. 598
university’s
Ante at
groups’
name.
use
ever,
parties to
Court has asked the
brief
indicating
no
By
that this issue
14
thus
n.
See,
statutory
tini,
e.g.,
States
issue.
United
v. Alber
alive,
necessarily implies
longer
Mack
675, 679-80,
2897, 2902,
U.S.
litigation
preclude
plain-
does not
that this
(1985);
Cable,
Capitol Cities
Inc.
49 however, Mack, reality, Judge denying “University as the status of rec- well Judge Pryor Judge ognition” as Chief Newman does not violate the Human her, join do address and resolve the Rights inadequate who to the task. As Act are constitutionality tangible below, of both the the Human Act elaborated intangible “University recogni- elements nondiscriminatory ac- demands more than construing apply tion.” In the Act not to benefits; and, event, tangible any cess to plaintiffs’ requested to the status as a “rec- tangible and the distinction drawn between group, Judge rely ognized” Mack does not intangible to en- benefits does serve ground exclusively statutory for deci- on constitutionality hance the of the Act. As sense sion the classic that constitutional (and agree I see it this extent I addressed, e.g., concerns need not be when Nebeker), Judges compelled Belson and exclusively plain on the court relies lan- “University recognition” either is constitu- guage, legislative history, or on a dis- altogether aspects tional in both its or is See, legal positive e.g., Capitol doctrine. unconstitutional; middle there is no Cable, Crisp, Cities Inc. v. ground. (1984) (fed- 580 L.Ed.2d preemption doctrine need to eral obviates B. issue). Rather, reach first amendment she Judge If colleagues Mack and her are “recognition” require- find a declines to rights gay groups correct—if must have primarily in the Act of her ment because equal access to benefits to that of expressed “protect[ desire to its constitu- ] may lawfully other but be excluded
tionality” applied. at 16.4 This Ante officially “recognized” from the list of stu- desire to save the statute from constitu- groups having dent access to the same infirmity quite tional reflects a doctrine permits “separate benefits—then the Act favoring different from the doctrine stat- equal” university but access to facilities utory ground over deci- a constitutional for justification and services reminiscent of available; independently sion when both are buses, permitted public that once blacks on Mack, analysis a constitutional protections in the Act’s but back. The statutory analysis. determines the Accord- not so narrow. ingly, whether this court that the concludes Act, stops requiring short of The Human D.C.Code (1987), part: recognition” provides 1-2520 in relevant preserve in order to its consti- § tutionality, or were to hold instead that the discriminatory prac- is an unlawful It Act does extend status but is unconstitu- tice, subject exceptions applied, tional as the result would essential- l-2503(b), for an educational institu- § ly approach depends be the same: either tion: lengthy analysis. constitutional As a restrict, (1) abridge or deny, or to matter, therefore, practical seeking to, of, access condition the use or “ ‘ascertain whether a construction of any person services to its facilities and fairly possible by statute is which the [con- qualified, wholly partially, otherwise ” avoided,’ question may be stitutional] reason, discriminatory upon for a based Grace, 175- United States v. race, color, religion, origin, national L.Ed.2d sex, age, personal appear- marital status (1983) (citation omitted), Judge Mack has orientation, ance, respon- family sexual provided a clear “no.” answer: sibilities, affiliation, political source of Moreover, handicap any indi- physical income or the theoretical tools vidual_ colleagues [Emphasis employ Mack and her to show added.] state, university Although Judge their use of Mack does in one con- tion" in connection with services; paragraph, meaning” "con- clusional that the trial court’s "literal facilities and struction of the statute ... conflicts with its help with the statute has to be derived meaning,” apparently literal ante at she con- analysis. pages Ante at of constitutional ten statutory language cedes that the itself does 21-25. plainly plaintiffs' request “recogni- foreclose
50
Judge
agrees
clergy
Mack
trial
the
with the
court that
who once offered
de
a Biblical
Georgetown University has denied
slavery,5
facilities
recently
fense of
or to the more
gay rights
services
student
and
to the
expressed
University,6
of Bob
views
Jones
groups on the
sexual
basis of
orientation.
sought
limit
groups
to
black student
to the
however,
stating,
the Act
not
By
that
does
tangible
of
benefits
student activities
status,
require
university
the
to accord the
that,
stressing
infe
because
their racial
benefits,
tangible
in contrast with the
riority
advocacy
inter
and/or their
of racial
“University
Judge
ig
recognition,”
Mack
officially
“rec
marriage, they could
be
interpretation,
nores the fact that her own
ognized”
college
equal
par
the
on a
clearly,
just as
result
discrimination
will
chapter of
groups,
other
such as a student
that violates the Act: it will “restrict...
or
lodge. Or, suppose
Masonic
local
to,
of,
access
condition
use
or
... facili
college
self-ac
the same local
admitted
upon
ties and
based
sexual
services ...
degree-
knowledged homosexuals to all
result of
orientation.” As a
this court’s
granting programs but
them on all
carried
today
Judge
incorporating
decision
Mack’s
rosters,
college
including the com
official
result,
supra
gay
note
proposed
program,
mencement
under the exclusive
groups’
tangible
rights
access to
benefits
imag
heading of
students.
I cannot
“evil”
upon
will be restricted to and conditioned
anyone seriously
ine
would contend
receiving
University
same
citi
their
prohibit
Act
Human
does not
zenship rights
every
inherent
other
second-class,
such
to col
restricted access
group’s use of the same facilities and ser
lege
the Act
facilities
services—that
me,
vices. To
conditional access is an
tolerates
such a “hostile environment.”
dignity,
obvious affront to human
amount
Bank,
at-,
Savings
Meritor
477 U.S.
ing
a form
of discrimination at least as
C.
support
particu-
ment. Forced financial
is,
required
Judge
general,
no less a
Just as
Mack’s distinction between
lar ideas
sup-
tangible,
intangible
help-
is not
compelled
benefits
endorsement
than
verbal
defining
circumstances,
the reach of the Human
com-
port: depending
ful
on the
Act,
provides
enlightenment
it
little
pelled
support may
financial
well constitute
resolving
question
the constitutional
protec-
infringement
an
of first amendment
Judge
that is at the heart of
Mack’s statu-
Edu-
Abood v. Detroit Board
See
tions.
tory analysis.
Judge
distinguishes
Mack
cation, 209, 236-36,
intangible
tangible from
benefits because
(1977). Judge
In
we
compelling
speak
finding
literally
tions
someone to
accept
of fact that
the trial court’s
ideological
directly
Georgetown
“recognition”
or
sincerely
moral
statements
views
“endorsement,”
extremely
upon the individu-
only begins
intrusive
as
but
that
ment,
granting
just
Judge
concluding
such
is
gives
and the
benefits
Mack
two reasons for
"recognition”
university
finding
discretionary
grant-
the trial court’s
that
as is the
clearly
intangible
means "endorsement” is not
first,
erroneous:
ing
"recognition.”
benefit of
"recogni-
itself viewed
Moreover,
persuasive ground
neither
reason
endorsement,
speech;
tion”
thus of
as a form
“recognition"
Judge
assumption that
Mack’s
and, second,
"University recogni-
granting
spoken
endorsement
homosexual-
amounts
discretionary
by the
tion” is a
ty.
decision
universi-
ity
reciting
pledge
sense that
of alle-
in the
applied
con-
Ante at 19. Neither reason
giance
flag
spoken
endorse-
to the
amounts
opinion,
apply
sistently in the
for both factors
patriotic
As elaborated in the
ment of
values.
tangible
resulting
equally
to the
benefits
above,
significance of
text
constitutional
recognition.”
Judge
"University
Mack con-
George-
"recognition"
determined
cannot be
provision
cludes
forced
benefits
and,
act,
subjective interpretation of that
town’s
prohibition
does
not violate
constitutional
case,
court never stated
trial
endorsement,
compelled
it-
but
precise
Mack
finding
terms as
in such
having
give
self made clear
tangible
it views
requires
justify
her conclusion.
compelled
also
endorse-
benefits
as a
expression; prob-
though
highly
freedom of belief and
such activities are
ide-
al’s
union).
ological
countervailing
could
to some members
ably no
state interest
compulsions
render
such
constitutional.
argues
premise
Mack
from the
Virginia
West
State Board
Edu-
See
of
63
give “recog-
requiring Georgetown
Barnette,
cation v.
constitutionally the same as re-
nition” is
(1943) (holding
11. tangible compelled provision bene- university embrace Judge has not ar- Mack notes the that, legal requirement pro- Part gued appeal any is true as noted in on that a kind. It fits services, tangible expressly in contrast argument Georgetown facilities and infra, vide at oral IV “endorsement," intangible "recognition" with or argument com- that reliance on disavowed rights. See ante at first amendment violates 26 n. 21. tangible at issue provision benefits pelled of the supplemental brief In George- But the first amendment. violated only argument, find such state- for en banc any separate first waive decision to town’s case involves much more than ments as “this simply tangible providing bene- defense amendment question to facilities" and of access sharp dis- way theoretical saves the in no fits plaintiffs few additional benefits ”[t]he relies, tinction, Judge heavily soMack on which recognition grant of official could obtain compelled compelled endorsement between best." I find no concession that are minimal at speech. another’s subsidization of university’s does not free exercise defense Act, thus, says, improper- he court ii. ly granted summary judgment for the stu- Mack, Judge Judge Bel- contrast with Judge statutory dents Belson on issue. way son reads the Human however, suggests, further this court proscribe George- can the appropriateness evaluate of sum- discriminatory argues He town’s conduct. mary judgment under the Act reference that the Act’s reference to “sexual orienta- findings by Judge additional Bacon only tion” forbids discrimination based on George- her connection with evaluation or “preference practice,” sexual not dis- town’s free exercise defense. Post at 66- “advocacy,” meaning on crimination based acknowledges Judge 67. Belson then “promotion of ideas activities.” Post at Judge findings do not Bacon’s warrant only Georgetown engaged If in the summary judgment university un- discrimination, says, he did latter sort of Act; they der do not establish that disposition the Act. But for his violate university’s basis for the discrimina- grounds, on constitutional on appeal promotion groups’ tion was the student assumption has violat- Accordingly, ideas or of activities. he con- Act, Judge ed the Belson would remand for cludes, the appropriateness but for of dis- proceedings clarify further the universi- posing solely the case on constitutional ty’s motives. grounds, he would remand the trial problems Judge There two Bel- findings court “for fact conclusions First, analysis. given trial son’s court specifically of law addressed to the statu- findings he which are on which relies—and issues,” tory post particular supported by the record—no remand is nec- the university’s motives. essary university’s to determine the mo- noting, Judge post Belson is correct in evaluating tives purposes whether 67 n. found “the Presi- Bacon Georgetown has violated Human Georgetown University, dent of the Dean Indeed, Rights Act. the basis of the Center, expert of the Law and defendants’ findings by trial in the judges both statu- justify George- attempting witness”—in tory phases pro- and constitutional discriminatory town’s actions ceedings sug- himself Belson —which *50 grounds applied teachings with Catholic — gests rely on purposes we can ana- gay in mind: two realities “[t]he lyzing all issues in this case—the student organizations, by their char- as evidenced groups prevail entitled to on the statu- activities, participat- ters their were Second, tory Judge issue. Belson incor- ing promoting homosexual life in and rectly never, argues that the Act can con- added.) styles.” (Emphasis We thus have Constitution, sistent with the interdict dis- express finding of discrimination based “speech” directed at or crimination “advo- advocacy (“promoting”) on but cacy.” also, words, Judge post at Belson’s A. protected of a on “status as member Belson, According Judge Georgetown to group” life- (“participating” in homosexual “University recognition” claims it denied clear, therefore, why styles). It is not disagreed gay ideas because it with the the Judge acknowledge fails that Belson to rights groups propagating, were not be- supplied supplementary Judge Bacon groups composed primarily cause the were Judge Bra- finding sufficient to sustain Judge perceives, university homosexuals. Belson violated ruling man’s that the (Judge however, Judge Bra- that the trial court Mack’s Act. the Human man) record, mistakenly the Human 26- analysis understood ante at lengthy finding against Act to forbid discrimination validates unquestionably group advocacy. university motivated not on account of Post was that gay rights Judge Consequently, merely by at 65. Bel- aversion to suggests activities,” son, or groups’ “promotion of ideas appears trial court to have conclud- ed, by disdain their also erroneously, post that own but “preference status, i.e., sexual or their stated reasons for its violated the actions practice.” 1-2502(28) (1987) D.C.Code findings augment con’s Judge that Bra- § (definition quoted of “sexual orientation” man’s, may not have violated the Act. And Belson, 65). by Judge post at yet, shifting to analy- his constitutional sis, adopts working “premise” he as a what my colleagues’ emphasis Given on statu- findings, the record and the trial court’s tory analysis, important emphasize it is to best, university: establish for the that, if grips the full court were to come to recognition denied to the stu- question summary with the whether judg- large dent “in part,” but not exclu- appropriate ment or a remand the more sively, groups’ sponsorship “because avenue for statutory resolution of the issue promotion of ideas and activities.” record, unanimously we would at 67. premise, Post That record-based agree, benefits, tangible at least as to findings drawn from sound court trial university judgment. is not entitled to university discriminated reference Moreover, required, if a even remand were advocacy lifestyle, both and to clinches only practical purpose, according argument has violat- Judge analysis, Belson’s would be to deter- denying “University recogni- ed the Act in Georgetown’s only mine whether motive in necessary tion.” No remand would denying “University recognition” was to establish that violation. advocacy; block if the motives were mixed—if one of reasons for the univ- ersity’s discriminatory withholding of rec- B. ognition was an aversion homosexual general, though There is a more funda-
preference practice Judge or Belson —then Judge analy- mental weakness of Belson’s himself, gather, agree I the Act has unqualified proposition sis—of his that the violated, been since the dis- statute bars sup- Act cannot be construed to forbid the if “wholly partially” crimination or based pression “speech” “advocacy.” upon “sexual orientation.” 1-2520. Id. § distinction between discrimination based
Finally, advocacy understand Belson to and on status will not work. if, agree remand, is, upon person the court were Part of he or she who is what university’s says; deny right speak deny to find that the motives were is to mixed, university aspect person. then the would have vio- an essential of one’s In this sense, therefore, by withholding intangible right lated the Act an asserted to dis- (status), (facilities), against advocacy as well as the criminate someone’s benefits; join homosexuality clearly right he does not Mack’s a claimed reading against person of the Act that would exclude a discriminate on the ba- requirement nondiscriminatory, “preference” verbal sis of one’s sexual and thus recognition 1- from the reach of the Act. “sexual orientation.” D.C.Code §§ *51 2502(28), Thus, -2520(1) (1987). judges four of the on this case seven (Belson, Nebeker, Ferren, Terry) agree Assume, however, true, Judge is it as motivated, part, that if in was contends, for- Belson that the Act does not groups’ ho- plaintiff an aversion to the solely by discrimination motivated a bid preference practice mosexual or —as prevent speech the desire to activities Mack, Newman, Ferren, Judges Pryor, First, group. Two caveats are order. Terry agree university’s it was—then the against to the means chosen discriminate status, recognition failure to accord as well (here, non-recognition advocacy the support, as facilities violated the Human plaintiff groups) necessarily prove does not Rights Act. underlying merely to that the motive propagation repugnant
Judge
findings
prevent
of fact
the
of a
Bacon has made
motives,
university’s
indicating
campus.
doctrine on
ac-
mixed
and the record
Belson,
may
solely
speech
directed
supports
findings.
Judge
tion
be
activi-
those
(let
is),
however,
reality;
ties
us assume it
but that action
up
does not face
to that
illegal under the Act if
possi- may
for
still be
moti-
inexplicably, he leaves room
the
vated,
part, by
Ba-
even in
dislike for those
bility
Georgetown, despite Judge
that
prefer
practice homosexuality.
condemn,
I
require Georgetown
who
or
to approve,
agrees.12
Belson
express
believe
or even
the
neutrality toward
homosexuality,
moral value of
but the Act
Second,
university
if the
moti-
even
were
does, require
constitutionally may, and
by a
solely
vated
desire to shut down offen-
Georgetown tolerate others in the universi-
activities,
speech
means
to
sive
the
chosen
ty
espouse
environment who
that moral
repugnant
speech might
counter
none-
value; and, given
the nature of universi-
theless
the Act. Even if the Act
violate
ty,
presupposes
such toleration
forbid discrimination
were construed
recognition”
I now shall elaborate.
ideas,
—as
against
unquestiona-
it
homosexual
bly
against
does
ho-
forbid discrimination
III.
mosexuals because of their ideas. Discrim-
goes beyond
question
ination that
the ideas to the
is:
The fundamental
whether
person
no matter
plaintiffs’ request
“University recogni-
violates
Act
what
(1987)(any
motive.
D.C.Code 1-2532
meaning
citizenship
See
full
as student
§
tion”—
practice having
consequence”
“effect or
groups Georgetown University may
—
violating
unlawful). Accordingly,
Act is
denied,
though in
even
violation of the Hu-
context,
censorship
if
even
in this
when
Act,
Rights
man
because of
motivated,
lawful,
properly
an act
were
rights.
developed my
first amendment
I
excluding
degrading
group
or
accom-
argument
why
why the answer is “no”—
plish censorship would not be lawful.
Georgetown’s constitutional defense fails—
opinion
years ago,
in the division
over two
indicated,
As
I
dis-
believe
effort to
I,
I
Gay Rights
A.2d at
tinguish
legal
under
Act between
dis-
repeat
will not
it all here. But
against
illegal
crimination
ideas and
dis-
indeed,
concep-
principal
crucial
issue—
against persons
crimination
fails to take
divides
court—I
tualization that
want
into
advocacy
account that ideas—and
—are
record,
emphasize again that,
on this
part
person.
an essential
of the
But even
“University recognition” or “endorsement”
made,
if the
is not
distinction could be
plaintiff
groups
student
does
draw,
easy
part
capa-
because means
mean, explicitly
implicitly,
a statement
achieving
may
ble of
former
amount
approval
neutrality
even
I
has
latter.
believe
Belson
—or
—toward
rights,
homosexuality, gay
or related mat-
overlooked,
analysis
both in
in its
his
ters. Because of the nature of
univer-
application,
George-
possibility
way
sity, the Human
Act
no
recognize
plaintiff
town’s refusal
compels Georgetown
position
to take a
groups,
if
of an
because
aversion
right
violation of its
to free exercise
indeed,
advocacy,
their
is likely to
inev-
be—
religious beliefs.
itably
university
is in the context of a
—an
overly
response
effectively dis-
broad
critically
im-
In context—and context
against persons in
criminates
violation
only requires Georgetown
portant
—the
the Act.
against
not to discriminate
court,
views
express
wish to
their own
every
Because
member
call,
fear of
another,
without
proceeds
one reason or
to decide what believe we
contradiction,
university
typical private
premise
the case
Human
ideas,
violated,
inherently
marketplace
more
which
Act has been
no
expression.
That
analysis
for freedom
of the Act
useful.
stands
itself would be
*52
analogous, for
marketplace
constitution-
I
to
issue.
is
therefore turn
the constitutional
in
it,
shopping
to the
center
constitutionally
purposes,
I As
see
the Act
al
cannot
orthodoxy
those who
Judge
findings,
ly
condemns
As
that Catholic
12.
Bacon’s
buttressed
clear,
course,
record,
Judge
analysis
lifestyle. Of
that
practice
Mack’s
of the
make
a homosexual
Georgetown's
grounded
motive
group
people
cannot be characterized
is
hostility
to a
one’s
solely
speech;
to
univ-
as a desire
frustrate
objections
religious
less
makes it no
moral or
in
ersity
clear
has made
that the ultimate reason
Rights Act than
illegal
the Human
under
advocacy
approving
does
to be
as
not want
seen
hostility
animus.
in mere emotional
founded
dignity
homosexuality
precise-
of the
is
moral
PruneYard,
There,
reply
in
supra.
Supreme
(required
newspaper
inclusion
rights
that the first amendment
by political
Court held
candidate whose character and
justi-
shopping center owner did not
assailed).
newspaper
record
had
exercising
barring pamphleteers from
fy
recognized
There is a
constitutional dis
speech rights in the common
their own free
others
requirement
tinction
a
that
between
legal require-
A
open
public.
areas
permitted
express
clearly
be
to
what
university-
that
make its
ment
forum,
you
in
when
your
their own ideas
forum available
a nondiscriminato-
wide
(Prune-
forum
manifestly provide public
ry
to all student citizens
the univ-
basis
Yard),
requirement
you
that
must
and a
not,
view,
my
imply
any
ersity does
(Wooley;
Tor
express
the ideas of others
university corporation/admin-
way that the
caso; Barnette)
spread, and thus
or must
reasonably identified
itself can be
istration
affirm,
implicitly
your
ideas in
own
those
particular student
any
views of
with the
forum,
private
a dissociative statement
absent
such,
university, as
organization or that the
(P
Electric; Tomillo).
Gas &
acific
con,
or neutral —on
position pro,
has a
—
division, Gay
For reasons elaborated at
group
any particular message a student
I,
Rights
A.2d
I
believe
Rights
spread. The Human
happens to
PmneYard
analysis
controlling
is
here.14
Act, therefore,
George-
require
not
does
obviously are differences be
While there
or to intimate
espouse any
view
town
private
private university and a
tween a
opinion.13
a neutral
even
center,
each, for
shopping
the fact
demands,
as
The Human
Act’s
reasons,
entirely
has become
different
Georgetown University, stand
they bear on
expression
for the
of di
traditional forum
have com
sharp
contrast with laws that
verse,
conflicting
provides a
often
ideas
particular
to utter
pelled individuals
that, compelling a conclusion
context
705,
speech, Wooley Maynard, 430 U.S.
v.
pro
definition, even a
private university
(com
(1977)
97 S.Ct.
51 L.Ed.2d
reasonably
associated
prietor
cannot
be
pelled ideological message on state license
em
affirmatively
any
with
idea it does
Watkins,
supra
(re
v.
Torcaso
plate);
therefore,
most,
“University rec
brace. At
in God for notaries
quired oath
belief
implies no
gay rights group
ognition” of a
Ed
Virginia State Board
West
public);
university’s “official toler
more
than
Barnette,
supra
(compelled
ucation v.
I,
Gay Rights
ance,”
A.2d at
allegiance
flag), or to dissemi
pledge of
plu
organization
still another
message
in a “hitherto
nate a
of others
to be ex
tolerance
ralistic environment—a
Electric,
&Gas
forum,”
private
Pacific
granted,
pected, indeed taken
910 n. 8
U.S. at 12 n.
106 S.Ct. at
open to free
purports to
university (1986)
(compelled inclu
(plurality opinion)
ideas,
thus a tolerance
expression of
organization
ratepayer’s
flyer
sion of
university position whatso
implies no
Her
customers);
Miami
utility
with
bill
any group stands
Tornillo,
ideas
ever about
Publishing
ald
Co.
values
(1974)
To tolerate another’s
for.15
59
approve
them;
it
is
ideological
theological
is not to
of
nor is
or
reasons
speech
making
university
It
a
about
express
neutrality.
indifference or
is
statement
making its own
ideas and thus
expressed willingness
group’s
to let
simply an
position known.17
indicating
a say
someone else have
without
you think about it.16 This distinction
what
Act does
Obviously,
the Human
(or,
toleration and endorsement
between
way
in
first
get
not
generally,
and tak-
more
between toleration
right
any
to make
statement
amendment
sort)
of some
lies at the heart
ing position
of a
condemning the
to make
views
wants
first
demand that
of the
amendment’s
But,
more
group of its own students.
even
government
tolerate
beliefs and
dissident
recognizing the
officially
in
importantly,
equally
civil
speech;
it is
essential
to our
not,
rights groups, Georgetown would
gay
Conceptually, perhaps,
rights
statutes.
effect,
posi-
forced
its own
in
to make
quibble
govern-
could
about whether
one
responsive
by issuing
clear
such a
tion
ment-compelled
amounts
toleration
student
condemning
gay
statement
but, for
speech;
conduct or forced
forced
Electric
Gas &
In
groups’ aims.
Pacific
purposes,
point is
the salient
constitutional
Tomillo,
had forced conver-
law
that,
context,
recogni-
in
such
forum,
private
public
forum into a
sion of a
suggest
university
not
is
tion” does
prerogatives
proprie-
overriding the
taking
position
group
on the
that it toler-
agendas
to restrict communication to
tors
Thus,
“recogni-
ates/recognizes.
required
a conse-
opinions of their own. As
not run
the absolute
proprietors
likely
tion” does
afoul of
to feel
quence, the
were
against
pro-
ac-
protection
compelled
compelled
respond,
utterances
to withhold
or
Wooley, Barnette,
and Torcaso.
messages
altogether,
to assure
corded
vocative
it, therefore,
refusing
only
their audiences would not confuse
As
see
anyone
views
those of
recognize
group expressly
proprietors’
a student
suggests
speech
ambigu-
compelled
"purpose”
recognition
about the
ous;
17.
requires
burdening religious
it thus
an
of both the
to the
evaluation
beliefs is more odious
meaning[s]”
"practical
"endorsement,"
violating
compelled speech
[the] normative
than
Constitution
analysis
did
the trial court
appears
non-religious
Judge
beliefs.
Mack
provide.
Id. at 573.
the constitu-
not
tionality
Because
distinguishes
present
agree,
case
for she
Act,
applied,
the Human
as
&
Utilities
Gas Electric Co. v. Public
from Pacific
required "recognition” or “en-
turns on whether
1,
903,
Comm’n,
1
89 L.Ed.2d
475
106 S.Ct.
amounts,
effect,
dorsement”
to a coerced
(1986),
part
ground
the latter
on the
neutrality—
religious
vexpression
approval
speech
a free
defense rather than
involved
something
meanings of those
or to
else—the
weightier)
(presumably
claim.
free exercise
precisely
possible
terms must be defined
as
as
however,
Georgetown,
n. 19.
has
at 24
Ante
ultimately
matter of law
and thus
defined as a
authority
religious
provided no
to indicate that
earlier, by this court. As discussed
greater protection
rights
such
speech
receive
for the mean-
Mack’s deference
trial court
fact,
non-religious speech rights.
than
"endorsement,” therefore,
wrong
ing
suggest no
in the level of
precedents
difference
provide a
reasons:
the trial court did not
two
compelled-speech cases on
protection. The
definition,
event,
and,
meaningful
Georgetown princi-
both
Mack and
which
interpreter
that has
court must be the
of a term
rely
speech
violation
pally
concerned
forced
factual,
constitutional/legal,
primarily a
beliefs,
religious
these
person’s
but two of
aof
above, I
As indicated in the text
definition.
government actions
struck down the
decisions
recognition/en-
University
"the
would define
grounds
applicable
solely
speech
equally
on free
no more than
dorsement here ...
mean
[to]
religious be-
implicating
specifically
no
to cases
Id,
groups.”
gay rights
‘official tolerance’ of
705,
Wooley Maynard, 430 U.S.
v.
liefs. See
574.
752
L.Ed.2d
S.Ct.
(1977);
Virginia
Education
Board
West
State
argues
Georgetown,
Judge Belson
Barnette,
319 U.S.
v.
permitting
body
student
endorsement
(1943);
L.
see also
L.Ed.2d 1628
Tribe, American
groups,
fully
plaintiff
"has
the activi-
tolerated
(1978).
The third
Law 864-65
Constitutional
place of
ties of the student
in the market
religious
as a condition
oath
down
case struck
university.”
n. 12.
is a
Post at 68
ideas that
gave
but
no indication
public office
true;
body
simply
endorse-
That is
“student
great-
deserved
conscience
is,
freedom
“University recognition,” a
ment”
relative
gener-
of conscience
freedom
protection than
er
inherently
less
reflects
second-class status that
Watkins,
ally. See Torcaso
plaintiffs’
than of
toleration of the
activities
(1961).
1680, L.Ed.2d 982
groups.
of other
activities
*54
contrast,
er,
Georgetown University
agree
meaningful
else.
In
there can be no
is,
nature,
very
a forum for its
by its
constitutional distinction
enforced
between
students,
teachers, administrators,
and
intangible “recognition”
compelled
and
public
alumni. It is akin to a
forum in that
tangible
agree
But I do not
benefits.
that
variety
groups
of constituent
has auto-
Judge
legitimate
for
Belson has a
basis
access,
matic
there is a tradition of wide
court,
circumstances,
asking this
under the
debate,
thus,
open
given
very
na-
provide
Georgetown
not to order
to
the
university,
implication
ture of a
there is no
tangible
majority
half loaf of
benefits a
corporation/administration
that
the
—the
required.
the en banc court believes
See
proprietor
reasonably
academic
—would
supra note 1.
with,
compelled
and thus
to
feel identified
appeal, Georgetown
On
has chosen to
from,
dissociate itself
the views of student
solely
right
defend
on its asserted
to with-
as the
as diverse
Jewish Students
“recognition.” Although Georgetown
hold
Association,
Organization
the
of Arab Stu-
provide
has not conceded that it must
the
Freedom,
dents,
Young
the
Americans for
tangible
narrow set of
benefits inherent in
Organizing Com-
the Democratic Socialist
recognition,”
supra note
Collective,
mittee,
Rights
the Women’s
university
separate
raised a
has not
Gay People Georgetown University.
compelled provision
tangi-
defense to
I,
Any
Gay Rights
fil (in per- that financial contributions connection with the Court stressed subsidy anyway *55 charters) of collec- government by compelled al- in furtherance could be mitted 236, meeting access to at lowing plaintiffs at 97 S.Ct. bargaining, 431 U.S. tive calendar, rooms, activities may very to the student 1800, though “employee an even Director of services of the Stu- to the a wide ideological objections to have well funda- perhaps, Or more Activities. dent un- by the variety of activities undertaken university simply does not mentally, the representative” in of exclusive ion its role high principle to dimin- a matter of be want reli- —including, example, “moral or for ished, and the courts dis- parties and the desirability of abor- gious about the views tracted, relatively legal haggling over by square with the tion ... [which do] money. Alternatively, small amounts negotiating a medical ben- policy union’s ap- Georgetown, anticipating the perhaps 222, at 431 at 97 S.Ct. plan.” efits Mack, sought by Judge to proach proposed Electric, 1793. And Gas & Pacific advocating an all-or- by result avoid that “the Com- careful to note that Court was university analysis in nothing which if it were a order could be valid mission’s in a bifurcated greater confidence than had serving means of a com- narrowly tailored reasoning, one. Whatever 19, 106 pelling state interest.” 475 U.S. not to address university has elected at 193. and, dichotomy intangible/tangible therefore, case, present applied As it, any separate waived see has therefore Electric would Gas & Abood going specifically bene- Pacific defense of, way the consti- support, not stand fits. nondiscriminatory plaintiffs’ tutionality of event, I Abood In believe that both recognition,” includ- access to support plain- Electric Gas & Pacific university. from the ing tangible benefits intangible right tangible, as well as tiffs’ recognition related financial Required Abood, Supreme In Court benefits. (which, organizations support of student representing public noted that a local union university institutionally, are central impose compulso- employees may lawfully case, life) analogous, purposes of this is ry on whom the service fees non-members support of collective compelled dues bargaining represents union in collective ideological disagree- despite bargaining: shop arrangement, pursuant agency to an support ment, compelled to employee that, the first provided consistent with university is bargaining, and a collective amendment, on such not be used fees nondiscriminatory access required give employee for “ide- any objecting behalf of benefits, public activity because to student to collective ological activities unrelated bargain- such put premium on 236, policy has 97 S.Ct. at bargaining,” 431 U.S. at nondiscriminatory student 1800, political ing views and on such expression such as In first amend- political programs. candidates. Because activity or contributions to Court, however, Electric, relying implicated, Gas & ment interests Pacific Tomillo, public a state heavily “compelling held that state government must have utility requiring Electric, utilities commission order 475 U.S. interest,” Gas & Pacific ratepayers’ flyers of a companies to send 913, such a 19, justify 106 S.Ct. at along with organization customers to their must imposed the burden premium, and the first amend- utility bills violated id., tailored,” to achieve the “narrowly 475 ment, compelling interest.” “absent a “substantially must objective and state’s at 912. U.S. at 106 S.Ct. placed burden” outweigh[ whatever ] rights. first amendment the exercise & Elec- Although Abood and Gas Pacific States, University v. United Bob Jones utility employees and public tric held that 103 S.Ct. not be respectively, could companies, exercise); (free see (1983) L.Ed.2d finance, in effect and thus forced to 252, 257-58, Lee, 455 U.S. States United objectionable, they found sponsor, any idea (1982) 71 L.Ed.2d to demonstrate the Court was careful I, 496 A.2d at exercise); Rights (free Gay Abood, the opinions. limits on those 576-77, (discussing Supreme rights 581 & n. 19 secured the Constitution cases). against rights Court those created the District Act,1 of Columbia Human and is not
V. deprecatory of the efforts of the District of prevent Council to earlier, Columbia discrimination length For reasons elaborated at I, on the basis the several factors that the Gay Rights A.2d at I am Council has identified in the Human expressed satisfied that “the District’s in- ruling Act. I would affirm the trial court’s eliminating terest discrimination edu- *56 Georgetown University favor on con- cational institutions on the basis of sexual grounds. join Judge stitutional I Mack in ‘compelling’ ‘overriding’ orientation concluding Rights that the Human Act as it is in the more traditional areas of race George- applied require should not be (citations omitted). and sex.” Id. at 576 In grant recog- University “university town connection, agree I with Part YI of nition” and its concomitant endorsement to Judge concurring opinion. Newman’s Gay People Georgetown University Moreover, District of Columbia’s in- “[t]he (GPGU) Gay Rights and the Coalition enforcing Rights terest in the Human Act’s (GRC). however, disagree, I with her con- prohibition of discrimination based on sexu- clusion, ruling, and this court’s that outweighs ‘substantially al orientation requires university provide statute places whatever burden’ the Act on groups. facilities and services to those ‘exercise of be- [its] ” concluded, upon appro- Even if it should be Jones, (quoting liefs.’ Id. at 582 Bob fact, priate findings of statute so 2035). U.S. at 103 S.Ct. at That in- requires, religion exercise the free intangible cludes not the burden of speech free clauses the first amendment earlier, “recognition,” as discussed but also prevent application George- would facili- the burden of the benefits of town this case. Georgetown ties and services which has not which, expressly questioned analytical- but aspects Judge opinion Two Mack’s present I ly, Accordingly, give partial disagreement. the same issue. my rise to One requires Georgetown procedure. opinion believe the law Univ- relates to The over- that, ersity grant granting summary and its Law “Univer- fact Center looks the recognition,” full, Gay People judgment against Georgetown University sity had Georgetown University Gay and to the on the issue whether it violated Act, Rights Judge Braman mistak- Georgetown University Human Coalition of genuine enly that there was no Center, concluded respectively. Law actuality, material facts. In issue as to BELSON, Judge, Associate with whom issues concern- there were obvious factual NEBEKER, Retired, Judge, Associate withholding ing university’s reasons for dissenting in joins, concurring part recognition groups. from the One central part: university issue was whether the withheld orienta- recognition because of the sexual appeal requires This the court to evalu- groups, or of the tion of the members rights Georgetown ate the constitutional groups’ advocacy of instead because of the University speech to free and the free exer- life-styles, conduct inconsistent homosexual religion statutory right of cise of and the Georgetown to which religious beliefs with Georgetown and their or- certain students opinion, suggest, I Judge Mack’s adheres. ganizations discrimination to be free from by going Judge Braman’s error compounds On the based on homosexual orientation. findings of fact to make its own on to below, analysis basis of the I set forth university’s that the support its conclusion that, rights conclude to the extent those discriminatory. purpose was us, George- conflict in the context before Judge disagreement My second with rights paramount. town’s constitutional law. opinion relates to substantive balancing of Mack’s This conclusion results from a (1987). 1. D.C.Code 1-2501 to -2557 §§
fiS correctly concluding the first decide this case After on the basis of whether the protects amendment Universi- requires Constitution certain result. In ty against being required to endorse interpreting statute, course, we appellant groups, Judge Mack’s attempt should to avoid a construction that opinion reaches the inconsistent conclusion bring it into would conflict with the Consti- Georgetown can be forced to subsidize tution. I would hold that Braman those activities that offend the entering summary judgment erred in university religious beliefs which the the basis that had violated the view, my adheres. if the Act cannot discriminating Human Act require endorsement, require it cannot sub- against groups. the student sidy require either, either. If it should summary judgment first reason that abridge George- this record statutory inappropriate on the issue was rights first free town’s amendment asserted, GPGU and GRC never religion speech. and free exercise asserted, could not have there was no disagreement My Ferren’s genuine concerning issue facts that control *57 opinion2 principally arises from its consist- important, the of Most outcome their suit. short-weighting ent first dispute concerning sharp there the was rights in amendment the constitutional bal- recognition Georgetown reason that denied urges ancing process. Judge Ferren that groups. to those statement of their university requires the Act that the exer- facts, undisputed groups the student set regard cise with the student “tolerance” to they forth the facts that asserted entitled being “an groups, “tolerance” defined as including summary judgment, the them expressed willingness let someone else Georgetown recogni- fact that denied them say indicating you have a without what but, time, recogni- granted tion at the same think about it.” Ante at 58. Georgetown range to wide tion other cultural indisputably permitting already is such ex- most, organizations. political At such facts pression by groups. the What student permitted may have an inference that Georgetown is has declined to do to en- Georgetown discriminatory out of acted groups’ promotion dorse or subsidize the motives, such an inference cannot be but of ideas and activities antithetical to the against to form the resolved Georgetown es- doctrines that Murphy See judgment. summary basis pouses.3 Found., Inc., Army v. A.2d 458 Distaff (D.C.1983). Therefore, George- even if I. not opposed town had GPGU’s and GRC’s notes, ante Judge opinion As Mack’s summary judgment, Judge Bra- motion for 16, although Georgetown appeal did not granting have erred in it since man would Judge ruling Braman’s that it had allege groups student did not facts the the violated District of Columbia Human they that were entitled sufficient show denying Act in recognition to the judgment as a matter of law. See Mil- groups, we must consider a statu- student Newby, Properties, Inc. ruling ton tory undertaking A.2d basis for before Ferren, 47-48, opinion Judge opinion, fudge 2. See 55, ante In his Ferren has included positions my My position numerous reformulations the Act does not 56. Many accept. former, various issues. I cannot It would but reach the latter. reach the lengthen opinion unduly all of this to address say my positions It them. should suffice to respect Ferren's reference 3. With opinion. One recurrent are as stated by university’s use of the name the student theme, however, brief mention. With merits ante, p. point groups, at n. I out that this Act, respect to the reach of the Human out, point us. also how- issue is not before I opinion repeatedly blurs dis- Ferren’s ever, university’s would that the use of name action, (1) taking an tinction draw between appear to be an assertion of endorsement recognition, as the because such denial ruling. this court’s denied (2) speech advocacy, content blocking one’s or speech advocacy, because another’s other, impermissible, possibly reason. some (D.C.1983); Burch v. Amsterdam Roman Catholic Church human sexu- Corp., 366 A.2d (D.C.1976). 1983-84 ality, teachings which are central to the beliefs of Roman Catholics. Moreover, papers filed Georgetown in opposition to the motion manifestly pre- (R. 346) Schuerman, Affiant William C. summary cluded judgment. Georgetown Assistant Vice-President and Associate presented competent, sworn evidence—affi- Affairs, Dean for provided Student a sim- davits from those responsible officials ilar account: the decision to deny recognition to GPGU ... I concluded that endorsement of such provided GRC—that more ample than organization by the University basis for finding the university’s through recognition official would in- decision resulted from its determination consistent with teachings of the Ro- objectives and activities of those man Catholic Church. recognition Such groups conflicted with teachings lending mean the University’s (R. Roman Catholic Church. 354- organization name to an espoused which 55, 540, 542-44) example, For the affidavit the legitimacy and acceptability of the of Timothy Healy, S. George- President of life-style, homosexual necessarily which University, town included following ex- includes orga- homosexual conduct. An planation for university’s decision to nization goals with such objectives deny recognition to the groups: in direct my conflict understanding I determined that it would be con- teachings of the Roman Catholic trary to the role of Universi- Church on the issue homosexuality. ty as a Roman Catholic and Jesuit Univ- (R. 540) These affidavits sup- would have ersity for the University officially to rec- ported finding it was groups’ *58 ognize and organizations. endorse these promoting activities conduct antithetical to This decision part upon was made in my teachings Catholic sexuality human understanding organizations that the at Georgetown led deny recognition. Thus, embody issue beings idea that human Judge because Braman had before him con- should be identified and their essential flicting concerning facts the central issue nature classified in terms of their sexual case, i.e., in the whether had a preference. addition, In my decision was discriminatory denying reason recogni- upon my based understanding that the GRC, tion to GPGU and see D.G.Code organizations approved, at issue by and 1-2520(1) (1987),Judge Braman erred in § approval such encouraged, necessarily granting summary judgment appellants homosexual conduct. my It was further statutory question. See, on the e.g., Re- understanding organizations that the two Motors, Inc., liance Ins. Co. v. Market among issue would foster students a (D.C.1985); A.2d 573-74 Word v. belief University approved that the and Ham, (D.C.1985) (per A.2d 751-52 accepted homosexuality merely as an al- curiam). way ternative of life. completing Before this discussion of the upon 9. understandings, Based these grant summary judgment, I acknowl-
*61
I
University’s
concluded that the
official
edge
possibility
Judge
Braman dis-
recognition and
or-
endorsement
these
agreed
premise
with a
my
basic
ganizations
last
contrary
would be
to and
conclusion,
granted summary judg-
and
conflict with the traditional and consist-
appellants
ment to
teachings
theory
ent
the mistaken
of the Roman Catholic
proffered
that the
question
by Georgetown
Church on
reasons
of human sexual-
ity. Organizations
discriminatory
were themselves
such
within the
as those at is-
sue,
meaning
Rights
which are
of the Human
based on a
human
Act. Be-
view of
nature
emphasizes
granting
which
cause the order
summary judg-
the sexual as-
pects
terse,
of human
ment
I
colloquy
nature as dominant
was
turn to the
values,
the exclusion of other
between court and counsel for an indication
which
encourage and foster homosexuality,
approach.
of whether this was the court’s
totally incompatible
(R.
teachings
857)
with
Although
of the
is not entire-
record
clear,
Judge
ly
Judge
appears
religion.
Braman
to have
the free exercise of
Mack
provisions
interpreted those
of the Human
interprets
prohibit
public
the Act to
prohibit
Rights Act that
educational institu-
private
by
educational institutions covered
discriminating
per-
against any
from
tions
engaging
types
it from
of con-
certain
son on the basis of sexual orientation
but,
attempt
duct
in an
to avoid conflict
prohibiting
against individu-
discrimination
amendment,
the first
she
construes
groups
promote
als and
homosexuali-
the speech
the Act not
reach
activities of
ty regardless
preference
sexual
or
private
opin-
a
institution.
Mack’s
practice of the individuals or the members
ion,
Mack
ante
concludes
(R. 867, 887)
groups.
of the
Under that
require
that the Act therefore
one
does
Act, a
Rights
of the Human
construction
private actor to “endorse” another.
Id.
private
like
would be
actor
analysis
I
use
a different
to deter-
prohibited
treating
promotion of
from
mine whether
denial of rec-
disagreed
or
it
ideas
activities with which
ognition
groups
to the student
outside
falls
differently
or
promotion
from the
of ideas
scope
Act.
Human
agreed.
with which it
Presum-
activities
interpret
prohibit
the Act to
adverse action
private
such
ably,
actor would also
against persons
taken
on the basis of their
prohibited
treating
person
group
or
protected
status as members
class.
promoted ideas or activities with which
purport
prohibit
does
ac-
disagreed differently
person
it
from a
or
against persons
tions
taken
because
group
promoted
ideas or activities
promotion
(here,
ideas or
their
activities
agreed.
with which it
example, promotion
and con-
of ideas
Act,
plain
by
The Human
lan-
teachings).
duct antithetical
Catholic
guage,
prohibit
does not
discrimination
Thus,
view,
entity
my
by
if an
covered
against persons
upon
or
their
based
grant
fails to
facilities and services
the Act
Rather,
advocacy.
prohibits
discrimina-
to an individual because of his or her status
against persons
upon
tion
based
their “sex-
protected group,
of a
the Act
as member
which, in
ual orientation”
the words of the
contrast,
entity
if an
cover-
violated.
statute, “means male or female homosexu-
provide
ed
the Act fails
facilities
heterosexuality
ality,
bisexuality,
his
individual
or
services to an
because
preference
practice.”
D.C.Code
*59
activities,
promotion
ideas or
that
1-2502(28)(1987).4
her
Judge
It follows that
§
Further-
conduct does not violate the Act.
granted
judg-
Braman erred if he
summary
below,
against
more,
II,
Georgetown
theory
developed
ment
Part
a
recogni-
denying
prevent
that it violated the Act
Act
construction
that would
groups’ advocacy
tion because of the
differentiating among
private actor from
a
life-styles.
homosexual
of their
the basis of the content
others on
unconstitutional, at
be
least
speech would
II, below,
a
As discuss Part
construc-
compelling
a
state inter-
in the absence of
prohibit
pri-
tion of the Act
that would
Thus,
imposed require-
statutorily
est.5
differentiating among per-
vate actor from
promotion
neutrality
toward
ment
advocacy of
sons based on their
ideas
viz.,
idea,
morality of
homosexual
Act,
an
only
be untrue
would
abridge first amendment
life-styles, would
abridge
also
amendment’s
would
the first
case,
imposed duty either
guarantees
and,
rights. Similarly, an
speech
free
in this
interpretation
be
Judge
opinion
the Act would
inconsistent
Mack’s
reaches no conclusion
amendment,
prohibits
Rights Act
as to whether the Human
of the first
with the dictates
against
groups
Act,
persons or
that
discrimination
D.C.Code
clause of the
so-called "effects”
homosexuality.
It
finds that
advocate
Georgetown
instead
(1987),
interpreted
pro-
cannot be
§ 1-2532
orienta-
in fact took homosexual
Section
conduct here.
scribe
deny recogni-
deciding
tion into account in
prohibit
interpreted to
con-
2532 should not be
Judge
opinion,
tion.
Mack’s
ante
27-29.
though
stitutionally protected
even
conduct
impact
have an adverse
such conduct
Rights
5. For the same reason that the Human
group.
protected
require Georgetown
or
cannot
to endorse
i.e.,
groups,
that
subsidize the student
such
position
to endorse or to subsidize a
on that
but has no more authority
findings
to make
abridge
rights.6
issue would also
those
on disputed issues of fact than has the trial
court.
Hannan,
See Holland v.
456 A.2d
An analogy is illustrative.
It could not
(D.C.1983).
814-15
least,
very
At the
seriously
suggested
be
that
the Human
Georgetown
disputed
raised a
issue of fact
private,
Act could force a
church-af-
respect
with
to whether it
withholding
was
filiated school to lend its endorsement or
recognition of the
groups
student
for a
subsidy
group
to a
pur-
advocated or
proscribed
reason
by the statute.
See
posely facilitated fornication
adultery.
RAP, Inc. v. D.C. Comm’n on Human
group, however,
Such a
argue
could
Rights,
(D.C.1984).
485 A.2d
177-78
those activities reflect
group
members’
orientation,
heterosexual
an orientation
Normally,
grant
where a
summary
triggers
protection
the Act’s
judgment was erroneous
genuine
because
same extent as does homosexual orienta-
facts,
issues exist as to material
we should
tion. There can be no doubt that universi-
remand for a trial of
disputed
facts.
ty authorities in such
recog-
a case could
Remand to
determine whether
nize
purposes
that the
and activities of an
violated the Human
Act would be
organization
type
of this
would foster or
here,
unnecessary
however,
Judge
if
Ba-
promote acts that
the Church deems im-
findings
con’s
upon the trial of the free
moral. While Catholic doctrine deems all
exercise
require
defense
the conclusion
homosexual acts
immoral and
some
groups recog-
denied the
immoral,
heterosexual acts
the principle is
nition for reasons other than the sexual
the same. Both this hypothetical group
orientation of its members. The determi-
groups
and the
before us
properly
can
nation of
simple,
this issue is not
principal-
denied
subsidy by
endorsement and
a reli-
ly
course,
because the
judge,
trial
struc-
gious institution because of
sponsor-
their
findings
tured her
of fact and conclusions
ship
promotion
of acts that the institu-
of law to deal with the free exercise issue
immoral,
tion considers
rather than on the
rather
statutory
than the
par-
issue.
It is
basis of their members’ status as homosex-
ticularly difficult
apply
statutory
uals, heterosexuals, or bisexuals.
Tr.
See
definition of sexual orientation of an indi-
(Georgetown
would not subsidize activ- vidual,
(28) (1987),
D.C.Code
1-2502
§
club);
ities of
“playboy”
Tr. 628-30 findings made in the free exercise frame-
(Georgetown
support group
would not
concerning
work and
university’s
deal-
distributes information about abortion clin-
ings
rather than individuals.
students).
ics to
degree
The result is a
ambiguity
against
lack of focus that counsels
what
In its
review of
Braman’s conclu-
be,
effect,
summary judgment
sion that the university
violated
statute
favor of Georgetown.
I reach
law,
this conclu-
as a matter of
opinion
Mack’s
though Judge
sion even
Bacon made no
grievously
accepted precepts
at odds with
*60
explicit finding
Georgetown
that
denied
summary judgment
of
procedure in that it
recognition because of the
and,
sexual orienta-
undertakes a review of
the evidence
individuals,
effect,
any
though
tion of
and even
I
finds as a matter of fact that the
reading
Judge
think that the
group
better
of
Ba-
“homosexual status of
members en-
findings
con’s
is
Georgetown’s
primary,
tered into
that the
if not
assessment of the
sole,
‘purposes
Georgetown’s
reason for
and activities’ of the student
denial of rec-
ognition
groups,
Judge
was
unconsciously.”
groups sponsored
albeit
that
the
opinion,
promoted
Mack’s
ante at
60-61.
In re-
activities and
ideas antithetical to
viewing grants
summary judgment,
of
Catholic
the
doctrine. But for the fact that
appellate
novo, Georgetown
prevail
court reviews the record de
appeal
should
on
that,
record,
values,
point
6.
I
private
out
as I view the
this
or beliefs. This case involves a
actor,
appeal
present
statutory
Georgetown,
does not
the issues of
that asserts that it treats the
appellant groups differently
construction and constitutional
law that would
because of their
private
adversely
promotion
arise if a
actor treated another
of ideas and conduct antithetical to
ideas,
merely
personal
by Georgetown.
because of the latter’s
the
views adhered to
address,
I
constitutional
issues here on
constitutional defenses
next
discuss the
Georgetown
recog-
premise
that
denied
course
circum-
appropriate
under the
groups
to the student
at
least
nition
findings
be to remand for
of
stances would
part
groups’ sponsor-
of the
large
because
of
spe-
and conclusions
law addressed
fact
promotion
ship
of ideas and activities.8
cifically
statutory issues.7
Although
yet
determined
it has not
been
en-
whether sexual orientation
factfinder
II.
motivation,
Georgetown’s
it
tered at all into
finding
if
Even
there were
valid
Judge
the record and
is clear from
from
Georgetown
the Human
had violated
findings
Georgetown’s con-
Bacon’s
Act,
prevail
should
groups’ advocacy
speech
cern over the
litigation
permeated
this
on the basis of its constitu-
of the
activities
consideration
rights
speech
grant
recogni-
question
tional
under the free
and free
of whether to
them
Therefore, Georgetown’s right
of
I
tion.9
of
exercise clauses
the first amendment.
7.
8.
I
ren relies
of fact
Georgetown had
proscribed by the Act.
gay
should be
word contained in the
phasis
in and
sizes. See
concern was
have
ly,
more
try
“sexual orientation” that
of the statute.
Georgetown’s leadership concluded that "the
the "sexual orientation of
which what
al of
of law are at R. 1687-1698.
Judge
We need
town
pointed
and defendants’
Catholic
denced
were
not to
mative
tions would be inconsistent with Church
and 393.
sexual life
10.In
ter alia that:
do not
statutory
to stretch
groups.
satisfy
student
a. The
b.
Georgetown denied
no
Church.
fully
recognition,
is
added),
promoting
University,
Bacon's
participating
Recognition of
Ferren’s
"sexual orientation" within the
undermine
88,
teachings
applying
Bacon’s
out,
D.C.Code
the statute.
applied
in footnote 9
Church],
upon Judge
engage
organizations
90,
gay
issue,
with
their charters and their
styles.
Judge
Moreover,
Judge
Testimony
reach the issue
following:
findings
91,
more than one motive
opinion,
part
statute
expert
homosexual
but
these
the Dean
and with the basic
findings
if
in sexual
and Tr.
§
the normative
Bacon’s
PLEx. 21
in and
there
organizational
Bacon made no
1-2502(28) (1987). They
of her
Organizations,
statutory
one
recognition
teachings
witness,
below.
proscribes. Judge
Bacon’s
Judge
organizations, as evi-
President
...
of
ante at 55-56 would
coat
fact
Among
85-86, 145-146,
was evidence that
of the Law
Father
were
student
promoting homo-
such motive was
findings
plainly
”practice[s],’’
findings
does not fit. As
life
and conclusions
and
Ferren
But that does
concluded
definition of
participating
finding
how
[those
individuals,”
teachings
her
McCormick,
styles"
25,
because of
actions of
obligation
the thrust
activities,
organiza-
meaning
for deni-
obvious-
findings
George-
empha-
Center,
finding
Def.Ex.
quote
cover
(em-
Fer-
nor-
385
in-
of
ognition” as follows:
W. Schuerman
36];
and
findings
Cleary,
Georgetown’s correspondence with the student
Government
pose
Memorandum from
ty
ings
Dean
ings
e.g.,
randum from
(Nov.
town’s reasons
Judge
note
dorsement, an endorsement which the Universi-
cally
liefs. ...
science and value
must make
responsibility,
which the
This situation
ply endorsement.
tradition.
out
recognition
ment that
dy
complex
dorsement
ings
Tr. at
movement
tion would
individual
11.There was no evidence that the beliefs on
believes will
474;
S.
are
Letter
Letter
omitted).
and
University
D.
foundation,
21, 1979)
Bacon also found that "[t]he
of the Catholic Church.
Riel,
the Church
[******]
President of
280; Testimony
Catholic.
‘university
amply supported
history
McCarthy
support
Testimony
matter of faith and the moral
which it advised them of
from Dean W.
from President T.
University
official
lives and
(Feb.
fact, Judge
of the
on a full
GPGU
Dean W. Schuerman to S. Ozmun
University
be
conflict
decisions in
(R. 1693). Judge Bacon’s find-
[Pl.Ex.
and
and tradition
cannot
J.
involves a
of
University,
denying
interpreted by many as en-
or otherwise
sincerely-held religious
6, 1979)
"recognition" would not im-
Ryan
a
(May
positions taken
recognition’
system identified with this
Dean W. Schuerman
University
(March
its Law Center
rights of its
gay
acted were
with
Father
Undergraduate Student
homosexuality.”
range
33];
concur with an
is a
(Feb.
Bacon
law student
8, 1980)
Stott, Jr.,
them
Dean
[PI.Ex.
the normative find-
light
Letter from Dean
controversial and
private university
Healy,
in terms
of issues.
which is
"Official” subsi-
Healy,
"university
1979).
not entitled to
administrators
McCarthy,
students, they
quoted
bizarre,
record.
1980)
of the
28]; Memo-
[Pl.Ex.
official en-
cherish the
major pur-
to J.
Tr.
organiza-
George-
S.J.,
specifi-
In her
[Pl.Ex.
(Foot-
teach-
While
Ryan
argu-
with-
con-
605.
See,
24];
rec-
gay
be-
Tr.
P.
speech
free
strongly
play.10
comes
Judge
into
with
Georgetown
Mack that
cannot
constitutionally
required
respect
exercise, Judge
With
to
to free
Ba-
endorse an
organization with the
views
which it
findings
firmly
con’s
established
that
disagrees.12
Judge
See
opinion,
Mack’s
Georgetown
recognition
denied
“because
part ways
ante at 20-26.
I
Judge
with
recognition would be inconsistent with its
opinion, however,
Mack’s
with respect
to
(R. 1694)
duties as a Catholic institution.”
the constitutionality
requiring George-
Georgetown has a free speech defense
provide
town to
tangible benefits to the
right
based on its
not to
or subsi-
endorse
groups.13 Any
student
forced
such
subsidi-
promotion
dize
groups’
of ideas and
groups
abridge
zation of these
George-
will
disagrees.11
agree
activities with which it
I
free
speech
town’s
free
and
exercise
10.While the
contains
governmental
Thus,
out
gent upon
amendment
findings
L.Ed.2d 601
tal encroachment
freedom
ment’s free exercise clause and establishment
forbid
alleged
tale,
ed to the
in footnote
beliefs on which
clause
beliefs.
acted on
tled to
(R.
individuals,
as an institution.
ment
judgment
vidual
grant
The fact that the
activity, does not
cern,
Georgetown"
er
Georgetown”
remains a
ply means
decision, therefore, is not a
ate for a Catholic
cause
rights
Church.
al
in
sidered and discussion has taken
and the moral
cannot
harmony,
assert
acting
single one of these
1690 [1643]—
endorsement
particular,
while the first amendment
endorsement
two
"may
violation of the Act which
recognition
of what
a lack of
involving
can be read to
to become an
Accordingly, Georgetown
[******]
members,
endorsement
the basis
several
although
fully
upon
allow
one’s
extent,
quite
speech
guarantees.
of the
such
free
point
(1962) (although
each has a reach of its own.
supra,
in some instances
free exercise defense. As
conduct,
as a
as a student
those
or students in
ability
different
91)
speech
free
guarantees against
after the
sympathy
Georgetown
controversial matters of faith
and
and freedom of
if
but rather
appropriate
personal
University
upon religious
University.
University approved
teachings
Judge
demonstrate a lack
deep respect
reading
disagreement
any,
guarantees
exercise defense
inappropriate
subsidization of a
to invoke all other first
sincerely
first amendment
one’s
imply
defense
See,
sexual orientation
kinds of
Bacon
facts have been con-
activity
for the
choices of its indi-
"Gay
would not affect
reflection
ability
represents
has chosen not to
e.g., Engel v. Vi
acted
general.
beliefs.
“Gay People
Judge
found
held
guarantees of
overlap, they
for individual
first
sprung
was
religion
Students of
toas wheth-
Georgetown
governmen
Georgetown
gay
place,
is
University’s
freedom'').
institution-
were
appropri-
intrusive
religious
be dilut
Catholic
Bacon’s
that the
amend
entitled
on or
contin
I
student
student
quoted
invoke
It sim-
group
point
itself
judg-
there
enti
con-
any
A
a
13.
12. In
11.
pouse.
town
sity,
Mack’s
would have
Mack’s
cial endorsement.
"separate”
equal”
status to
lowed these
is to endorse or subsidize them.
whether
has
beliefs,
them_”
campus. What
use the
sense: “to not interfere
ary
the market
Ante at
nary
view,
tolerate
ed
Mack’s conclusion that
tion that
sues.
endorsement, Judge
tion free
placed principal reliance
correctly I
defense.
ever,
mental conduct is in no
freedom
See,
(1972).
sertion
assert the former without reference to the latter.
Yoder,
In the
fully
undisputed
meaning;
permitted
has
e.g., United States v.
1051,
his
arguing
406 U.S.
approach, GPGU
groups
of a free
approach,
heresy],"
it can be
the free
the activities of the student
51-52, 53-54, 57,
refused to endorse the views
recognition
word
point
speech principles
practices,
trial
Ferren
It relied in
from other student
(2d
in that
analysis gives
access to
think,
place
religion
Id.)
groups
gay groups,
"to
ed.
L.Ed.2d 127
court and
provide tangible
fact
out, however,
but would not
"tolerate” here
his
of ideas that is
speech
speech
decided
required
Georgetown, a
Without
recognize
1982),
Webster’s
describes as
student
Judge Ferren's
to function and to
under which
facilities afforded
defense
92 S.Ct.
disagreement
actually
Ferren
etc.)
part
recognition
Georgetown
with;
defense.
rather
area,
insufficient
Lee,
way
to take
here, Georgetown
to do
government
raising the
on
(1982);
and 58-59.
has declined to do
New
signifies
develops
without
that under
allow;
455 U.S.
dependent
precedents,
grant
its free
analyzing
intrusive
GRC would be
than its
has
so,
respect
benefits to the
private
into
"separate
university.
World
opinion,
69
rights.14
quiring
employee]
contrib
non-union
[a
support
ideological
ute
the
of an
cause
speech
free
defense is not
holding
oppose
he
as a condition
a
its
dependent on
status as a
insti-
Catholic
235,
job
public
as
school
at
a
teacher.” Id.
private
ordinarily
tution. No
actor
can be
1799;
97
Pub
S.Ct. at
Miami Herald
compelled
speech
to subsidize
with
it
which
cf.
Tornillo,
241, 256,
lishing
v.
U.S.
Co.
418
disagrees. The Supreme
recog-
Court has
(1974)
41
94 S.Ct.
L.Ed.2d 730
principle
long
nized this
in a
line of cases.
recently,
(Florida’s right
reply
Most
statute interfered
Gas & Electric
Pacific
Commission,
475
rights
Co.
Public Utilities
newspaper’s
first amendment
1,
903,
(1986)
89
U.S.
106 S.Ct.
L.Ed.2d 1
requiring
print
replies,
it to
that it oth
Supreme
(plurality opinion), the
Court ad-
print,
newspaper’s
erwise would not
to the
first
challenge
dressed a
amendment
to a
editorials).
togeth
Gas and Abood
Pacific
regulatory ruling
required pub-
state
that
a
er
clear
when
make it
that
the first amend
utility company
billing
lic
to include in its
proscribes requiring subsidy,
ment
a
it mat
envelopes flyers
organiza-
ratepayers’
a
subsidy
ters not whether the
is
form
Id.
106
at 905-06.
tion.
at
S.Ct.
The Court
money.15
or
services
government may
impose
held that the
not
a
The
a
principle
private
that
individual
grant
private
content-based
of access to
cannot be forced either to endorse or to
property
compelling
state
absent
interest.
a view
he
dis-
subsidize
with which
or she
16-17,
at
106
at 912.
Id.
S.Ct.
Since
agrees
long-established first
is
amendment
interest,
compelling
no
Court found
it held
Supreme
The
doctrine.
Court unmistak-
requirement
unconstitutional the
ably
out
ruled
such endorsements in West
utility company,
private corporation,
Virginia
Board
State
Education v.
mailing
make its
services available to
624,
1178,
Barnette, 319
63 S.Ct.
ratepayer group.
at
Id.
S.Ct. at
(1943).
Barnette,
L.Ed.2d 1628
In
913.
Court held that students could not
com-
be
Similarly, in Abood v. Detroit Board of
pelled
loyalty
affirm their
United
Education,
States consistent with the dictates of the
(1977),
Supreme
L.Ed.2d 261
de-
Court
speech
first
free
amendment’s
clause.
Id.
shop
any
cided that a union
not
could
use
symbol
at
Catholic
to Catholic doctrine. This defense
*64
groups
viewed as an endorsement
applies
would be
with
force not
to the
full
9, supra.
is not unrealistic. See footnote
speech-related activity
groups,
but
Second, in
the state did not
PruneYard
groups
also to all other activities of the
particular message
a
to be dis-
dictate
that are antithetical
to Catholic doctrine.
shopping
id. at
played
the
center. See
to
Bacon
It was
this defense
contrast,
87,100
S.Ct. at 2044.
as
findings
directed her
of fact and conclu-
statute,
opinion
the
Mack’s
construes the
law,
they fully support her
sions of
and
requires Georgetown to
Human
ruling
Georgetown.
in favor of
provide
support
and
a
facilities
services to
leading Supreme
The
invok
Court case
viz.,
message,
a
particular
morality
the
of
Lee,
ing
principle
this
is United States v.
Third,
life-style.
Georgetown
homosexual
252, 102
1051,
127
455
71 L.Ed.2d
U.S.
S.Ct.
easily
as
a
with
cannot
disavow connection
(1982),
Amish
in which a member of the
student
the multifaceted activities of
payment
social
faith contended that the
of
required
it would be
to subsidize
religious
security taxes would violate his
shopping
the PruneYard
center could
Lee’s
Supreme
accepted
Court
beliefs.
signs
posting
pam-
in the areas
the
where
religious
interpretation of his own Amish
standing.
As a
phleteers were
id.
See
tenets,
acknowledged
accordingly
university, Georgetown
just
is
than
more
compulsory participation in
social se
mortar;
presence
bricks and
it has
be-
curity system
exer
interfered with the free
confines,
yond
physical
its
must be
257,
rights of
Amish.
102
cise
Id. at
relationship
concerned
its
several
with
with
however,
held,
at 1055. The Court
S.Ct.
categories
persons
physical-
of
who are not
given
government’s strong inter
ly present
campus, e.g., potential
at
its
ensuring
vitality
est in
the fiscal
of
potential
students
benefactors.
security system,
imposed
social
burden
Fourth,
shopping
owner
center
(as op
employ
on those Amish who
others
allege
objected
PruneYard did
that he
Amish,
self-employed
to the
who are
posed
Here,
pamphlets.
to the content of the
se
exempt
participation
from
the social
Georgetown specifically objects
the con-
to
curity system)
Id.
is not unconstitutional.
groups’
tent of the
moral
speech
student
1055-56, 1057;
258-59, 261, 102
at
at
S.Ct.
Gas,
religious grounds.
See Pacific
221,
Yoder, 406
Wisconsin v.
cf.
supra, 475
at 910
U.S. at
106 S.Ct.
1526, 1536, 1542,
L.Ed.2d
32
PruneYard,
(distinguishing
“does
which
(state’s
(1972)
of
system
interest
15
its
proposition
not undercut
that forced
right
did not
compulsory education
override
protected speech
associations that burden
at
Amish to
their children
of
educate
(footnote omitted).
impermissible”)
Fi-
home).
being
nally,
shopping
center
was
required
grant
recognition
official
long
country’s
of
part
has
It
been
affirmatively
pamphlet-
to subsidize the
an indi-
jurisprudence that
first amendment
eers; rather,
merely being required
it was
compelled
fund the
cannot be
vidual
permit
activity
property,
their
on the
of others.
views
dissemination
something
vol-
already
has
Madison,
first
drafter of the
James
tolerating
unteered
results
amendment,
“Who
not see ...
wrote:
does
government
endorsement
authority
force a
which can
the same
[t]hat
Thus,
groups.
the burden on
his
pence only of
three
citizen
contribute
being
subsidize
required
to endorse and
estab-
support
any
one
property
advocacy
particular
view
lishment,
to conform to
may force him
than
disagrees
is much heavier
which
in all cases whatsoev-
establishment
other
shopping
that on the
center.
PruneYard
Madison, Memorial
er?” J.
and Remon-
Against Religious Assessments,
re-
rights,
speech
In addition
its free
strance
Edu-
v. Board
in Everson
rights
printed
Georgetown’s free exercise
cation,
app.
67
330 U.S.
infringed
required
also be
if it were
(1947).
Thom-
app. at
91 L.Ed.
con- 504
subsidize ideas or activities that are
expressed
agreement
as Jefferson
his
when
appropriate
give
great weight
Virginia
he drafted the
Bill
Religious
judgment of the District of Columbia Coun-
Liberty,
preamble
which stated in its
cil. The
proscribed
Council identified and
compel
“to
a man to furnish contributions
number of bases for discrimination. The
money
propagation
for the
opinions
Human
Act forbids an educational
disbelieves,
which he
tyranni-
sinful and
institution
discriminating
Virginia
cal.”
Hening,
Statutes
race,
upon
color,
based
religion,
na-
(1823),
Everson,
quoted
supra,
sex,
origin,
age,
status,
tional
marital
Since is a family Catholic- responsibilities, political affil- affiliated iation, institution and since pro- source of physical income or hand- motion of homosexuality incompatible is icap any of individual.... doctrine, with Catholic infringe it would (1987). D.C.Code 1-2520 While neither § Georgetown’s right to the free exercise of statutory language legislative nor its
religion
required
if it were
to subsidize history indicates whether the Council in-
promote
that foster and
assign any
tended to
hierarchy to the sev-
life-style. Georgetown’s
homosexual
inter-
proscribed
discrimination,
eral
bases for
in
being compelled
est
to subsidize ac-
is
postulate
reasonable to
that it did not
tivities antithetical to Catholicism must be
equal.
doubt,
intend them to be
One must
given great weight under our Constitution.
example,
the eradication of dis-
Barnette,
633, 642,
supra,
See
319 U.S. at
upon
crimination based
source of income or
J.,
63
(Murphy,
S.Ct. at
1189
personal appearance was meant to
as
be
concurring).
compelling an interest as the eradication of
It can
argued
Georgetown’s
free
upon
discrimination based
race.
speech and free exercise defenses are abso
event,
In any
it cannot be said that the
subject
balancing
lute and not
goal
eliminating
of
discrimination on the
countervailing state interests. See Tornil
orientation,
basis of sexual
as undesirable
lo, supra,
supra,
burden on Georgetown
Judge,
Associate
concurring
be direct
part
compulsion, i.e.,
dissenting
injunction
part:
ordering the
university to
violate its
beliefs.19 Although
agree
with a considerable
*67
Therefore, upon considering the constitu- part
Judge
of what
Mack has written in her
tional issues
balancing
opposing
the
opinion especially
part III-D,
ante at
—
interests, I would find the District’s inter-
join
26-30—I
opinion
cannot
in that
be-
in preventing
est
the asserted sexual orien-
cause it
go
does not
enough.
far
I see
tation discrimination regarding endorse-
meaningful
no
difference between the
ment and
tangible
limited
benefits is out-
intangible
benefits which
weighed by Georgetown’s
appellants
interest
these
seeking
are
from the univ-
endorsing
ersity.
To
subsidizing
granting
sustain the
activities and an
of the for-
ideological
be,
mer without the
Judge
latter would
message repugnant
as
to its reli-
suggests,
Ferren
regression
a
gious
creed.
unla-
This is
Judge
the conclusion
days
“separate
mented
of
equal”
but
ac-
upon
Bacon reached
weighing George-
public
cess to
willing
facilities. I am not
town’s
rights against
free exercise
the stat-
give
appellants only
the
half a loaf when
right
utory
petitioners
to receive the
they are entitled to a whole one.
question.
benefits in
sup-
That decision is
ported by
by
the
applicable
record and
the
Furthermore,
I find no
basis
case law.
record for concluding that “University Rec-
Although
the record
imposed
bears out
New-
burden that would be
here. The Su-
against
preme
man’s observation that discrimination
although
Court said in Bob Jones that
faith,
homosexuals
not a
inevitably
is
tenet
the Catholic
”[d]enial
tax benefits will
have a
45, disagree
ante at
impact
with his
operation
private
conclusion that
substantial
on the
providing
schools,
religious
facilities and services to
prevent
will not
[it]
those
is, therefore,
observing
religious
an indirect burden on
schools from
their
tenets."
Georgetown's
religion. Forcing
contrast,
free
exercise
Id. at
ask Retired, relations group to heterosexual NEBEKER, dedicated Judge, Associate age girls of sixteen would part: with under concurring part dissenting “sexual orientation” bene- likewise derive thoughtful join Judge opinion. Belson’s in the face of first fits under the power Today the court uses state’s amendment assertions. contrary religious body, force to its basic holding against Surely this court’s tenets, provide services facilities first Georgetown University raises amend- proselytize those advocate and abnor- who warranting closest review ment issues practices. See mal criminal sexual meaning (1981); adjudicators of the ultimate 22-3502 Bowers v. D.C.Code § important provisions. these most Hardwick, *70 GIBSON, Roy H. Robert a/k/a Gibson, Bobby Appellant, STATES, Appellee.
UNITED
No. 84-1379. Appeals.
District of Columbia Court
Argued April
Decided Dec. 1987.*
* opinion typed prior This printing. was released in form