A RELIGIOUS FOUNDATION AND EXPRESSIVE ASSOCIATION RIGHTS

Tim Burke, Manley Burke, tburke@manleyburke.com

The right of religious-oriented student groups to enforce their religious principles on the organization’s officers and members is coming under increasing national debate.  Many universities have policies that prohibit campus organizations from discriminating based upon a variety of protected classifications including race, gender, handicap status and, frequently, religious belief.  On some campuses, Christian Evangelical groups which have a requirement in their governing documents that their members, or at least their officers, espouse specific religious beliefs has led to those groups not being recognized at the campuses where they exist.  At least five lawsuits have been filed around the country challenging these restrictions.  On other campuses, the threat of litigation has resulted in changes in campus policies.

The February 2005 issue of the ABA Journal, The Lawyer’s Magazine published by the American Bar Association, discussed “Christians on Campus – Legal Society Says Universities Must Let It Choose Members, Officers Based on Beliefs.”

According to the Journal, the 44-year old Christian Legal Society has undertaken the representation of student groups on many campuses across the country.  While the universities attempt to respond saying the standards are the same for everyone, success in defending such practices is not clear.  The article quotes a number of constitutional scholars arguing both sides of the issue.  What is clear is that the United States Supreme Court did decide in Boy Scouts of America vs. Dale, 530 U.S. 640 (2000) that the Boy Scouts had a “Freedom of Association right under the First Amendment against the application of state antidiscrimination statutes.”  The majority of the court agreed that because the Boy Scouts had a “value system” which they articulated, they were free to bar an assistant scout leader from leadership because he was a homosexual and a gay rights activist.

This ongoing debate may very well have implications for some fraternities.

In reviewing the Constitutional implications of the right of Freedom of Association, the courts have generally recognized two types of rights, those associated with close family-like personal relationships – intimate associations – and those in which the members engage in First Amendment protected speech activities – expressive associations.  One way in which fraternities might be viewed as expressive associations is where there is some religious basis to the organization.  Some fraternities are quite clear in that regard.

Alpha Epsilon Pi proudly regards itself as “the Jewish fraternity,” sponsoring numerous activities designed to encourage respect for and the perpetuation of Jewish religious beliefs and interfaith activity.  Acacia was founded on the principles and teachings of Masonry.  Alpha Delta Gamma was based in part on the “Spiritual Exercises” of St. Ignatius Loyola.  Theta Chi’s oath and ritual was written by the founders, whose forebearers, according to Baird’s Manual of American College Fraternities, were Episcopalians and, therefore, reflected the influence of that faith.  Many fraternal organizations include some element of religious observance, perhaps as simple as a prayer or an oath, in their practices.

Such a religious foundation need not signal a membership closed to diversity.  But, preserving such religious traditions may indeed help protect the organization’s Freedom of Association First Amendment United States Constitutional rights.  (See “Boy Scouts Ruling Supports Fraternity Rights,” Fraternal Law, September 2000, Issue No. 73 and “Protect Your Rights,” Fraternal Law, January 2001, Issue No. 75.)