ARGUMENT HELD IN U. OF FLORIDA CHRISTIAN FRATERNITY APPEAL

Daniel McCarthy, Manley Burke

The 11^th U.S. Circuit Court of Appeals held oral argument on December 10^th in Beta Upsilon Chi v. Machen.¹  The case involves whether the University of Florida must recognize the Christian fraternity as an official student organization.  Like several similar cases from around the country, UF refuses to recognize Beta Upsilon Chi (also known as “Brothers Under Christ” and “BYX”) as a “registered student organization” because the fraternity only draws its members from those who share a Christian faith.  UF stated that the fraternity’s membership policy violates university policy banning religious discrimination by student organizations.

The fraternity sued the university in federal court during the summer of 2007, alleging that it has a right to the benefits and privileges of recognition.  The district court denied the fraternity’s requested injunction,  but the fraternity promptly appealed to the 11^th Circuit Court of Appeals and requested an injunction pending appeal.  In a one-sentence opinion on July 30, 2008, the Court of Appeals granted the fraternity’s “Time Sensitive Motion for Injunction Pending Appeal.”  As a result, UF was ordered to recognize BYX pending the outcome of the case on the merits.

The argument in December was on the merits of the case.  BYX, relying on Boy Scouts v. Dale² and Rosenberger v. Rector,³ argued that it has a right to discriminate against potential members whose status would undermine their Christian message and that UF cannot discriminate in viewpoint in generally available student group funding programs.  UF argued that the chapter can exist as a student organization, but it cannot be recognized as official student group because of its membership policy.  In short, UF argued that it is not required to subsidize the expressive association rights of BYX or any other student organization.  Further, UF argued that it has a compelling interest in preventing discrimination on campus.

At oral argument, the Court seemed particularly interested in the hardships a lack of recognition creates on BYX and student organizations.  As noted in an article on the argument in the A.P., Chief Judge J.L. Edmondson asked, “Is it not true that they are disadvantaged in significant ways?”  He went on to say, “The policy here concerns me deeply as a matter of constitutional law.”  The Supreme Court acknowledged the numerous benefits that official recognition carries in the landmark case of Healy v. James.

1  Beta Upsilon Chi v. Machen, (11^th Cir., Case No. 08-13332-EE).

2  Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

3  Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).