GAY RIGHTS COALITION v. GEORGETOWN UNIV.Nos. 84-50, 84-51.
536 A.2d 1 (1987)
GAY RIGHTS COALITION OF GEORGETOWN UNIVERSITY LAW CENTER, et al., Appellants, and
District of Columbia, Intervenor-Appellant,
GEORGETOWN UNIVERSITY, et al., Appellees.
District of Columbia, Intervenor-Appellant,
GEORGETOWN UNIVERSITY, et al., Appellees.
District of Columbia Court of Appeals.
Argued en banc October 16, 1985.
Decided November 20, 1987.
Michele A. Zavos and Jane L. Dolkart, Washington, D.C., filed an amicus curiae brief for the Women's Legal Defense Fund, Center for Constitutional Rights, Equal Rights Advocates and Lesbian Rights Project, Law Ass'n for Women of George Washington University, Nat. Women's Political Caucus, Wider Opportunities for Women, and Women's Law Collective of Columbus School of Law at Catholic University, on behalf of appellants. Arthur B. Spitzer, Washington, D.C., filed an amicus curiae brief, on behalf of appellees. Elliot P. Hoffman, New York City, filed an amicus curiae brief for the Nat. Jewish Com'n on Law and Public Affairs (COLPA), on behalf of appellees. J. Curtis Herge and George V. Biondi, McLean, Va., filed an amicus curiae brief for the Coalition for Religious Freedom, on behalf of appellees. Richard A. Gross, with whom John F. Daly, Laura A. Foggan, Washington, D.C., Ronald E. Bogard, New York City, and Carol J. Jennings, were on brief, for appellants. Charles H. Wilson, with whom Vincent J. Fuller, Nancy F. Preiss, and James C. Gregg, Washington, D.C., were on brief, for appellees. Lutz Alexander Prager, Asst. Deputy Corp. Counsel, with whom Inez Smith Reid, Corp. Counsel at the time the brief was filed, John H. Suda, Principal Deputy Corp. Counsel, at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on brief, for intervenor-appellant. Shelley J. Gaylord, Madison, Wis., filed an amicus curiae brief for the Governor's Council on Lesbian and Gay Issues, State of Wisconsin, on behalf of appellants. Burt Neuborne, New York City, and Gilbert Gaynor, filed an amicus curiae brief for the American Civil Liberties Union, on behalf of appellants. Douglas N. Jewett, City Atty., Seattle, Wash., and Marlaina Kiner, Director of Human Rights, filed an amicus curiae brief for the City of Seattle, Washington, on behalf of appellants. Charles J. Ogletree, filed an amicus curiae brief for Div. 5: Criminal Law and Individual Rights of the District of Columbia Bar, on behalf of appellants. Abby R. Rubenfeld, Nashville, Tenn., filed an amicus curiae brief for the Lambda Legal Defense & Educ. Fund, on behalf of appellants.
Before PRYOR, Chief Judge, and MACK, NEWMAN, FERREN, BELSON and TERRY, Associate Judges, and NEBEKER, Associate Judge, Retired.
MACK, Associate Judge:
In the District of Columbia, the Human Rights Act prohibits an educational institution from discriminating against any individual on the basis of his or her sexual orientation.
Our analysis of the issues differs from that of the trial court. At the outset, we sever the artificial connection between the "endorsement" and the tangible benefits contained in Georgetown's scheme of "University Recognition." With respect to the University's refusal to grant the status of "University Recognition," we do not reach Georgetown's constitutional defense. Contrary to the trial court's understanding, the Human Rights Act does not require one private actor to "endorse" another. Thus, Georgetown's denial of "University Recognition" — in this case a status carrying an intangible "endorsement" — does not violate the statute. Although affirming the trial court's entry of judgment for the University on that point, we do so on statutory rather than constitutional grounds.
We reach a contrary conclusion with respect to the tangible benefits that accompany "University Recognition." While the Human Rights Act does not seek to compel uniformity in philosophical attitudes by force of law, it does require equal treatment. Equality of treatment in educational institutions is concretely measured by nondiscriminatory provision of access to "facilities and services." D.C. Code § 1-2520 (1987). Unlike the "endorsement," the various additional tangible benefits that accompany a grant of "University Recognition" are "facilities and services." As such, they must be made equally available, without regard to sexual orientation or to any other characteristic unrelated to individual merit. Georgetown's refusal to provide tangible benefits without regard to sexual orientation violated the Human Rights Act. To that extent only, we consider the merits of Georgetown's free exercise defense. On that issue we hold that the District of Columbia's compelling interest in the eradication of sexual orientation discrimination outweighs any burden imposed upon Georgetown's exercise of religion by the forced equal provision of tangible benefits.
Thus, on statutory rather than constitutional grounds, we affirm the trial court's conclusion that Georgetown need not grant "University Recognition" to — and thereby "endorse" — the student groups. The Human Rights Act does, however, mandate that the student groups be given equal access to any additional "facilities and services" triggered by that status. Georgetown's asserted free exercise defense does not overcome the Human Rights Act's edict that the tangible benefits be distributed without regard to sexual orientation. We affirm in part, reverse in part, and order the trial court to enter judgment accordingly.
A. Georgetown University
In 1789, the year in which the Constitution was ratified and the federal government created, Georgetown University was established. Its founder was John Carroll, a Jesuit priest, a friend of George Washington and later, as Bishop of Baltimore, the first Roman Catholic prelate in the nation. "On this academy," he declared, "rests all my hope for the flourishing of our holy religion in the United States."
In 1805 Georgetown College, as it was then known, was formally committed to the control and guidance of the Society of Jesus.
Today, approaching the bicentennial it shares with the ratification of our Constitution, the college Carroll founded on the banks of the Potomac is a major private, co-educational university and the oldest Roman Catholic institution of higher learning in the United States. Its enrollment consists of roughly 10,000 students in several undergraduate, graduate and professional schools. Georgetown University also runs a hospital and sponsors research institutes and other educational endeavors.
B. Georgetown's Religious Tradition
Through two centuries of growth, Georgetown University has been guided by the religious hope of its founder, John Carroll. All of its forty-six presidents have been Roman Catholic clergymen. On four occasions, the University has been headed by a bishop. In particular, Georgetown has continued a close relationship with the Jesuits. Since about 1825, without exception, members of that order have filled the presidential office.
At trial, Reverend Timothy S. Healy, S.J., Georgetown's president and a defendant in this case, testified that "until 1969 the general understanding was that the Society of Jesus owned the University and its property." In that year, the president and directors of Georgetown University signed an agreement with its Jesuit Community. With a few exceptions, the Jesuits relinquished their rights to University property. They also undertook to make periodic contributions to the University. Other provisions of the 1969 agreement sought to "guarantee the continued and effective presence of the Jesuits at Georgetown University." Among these were promises by the Jesuit Community to make themselves available for religious services, residential duties and teaching positions, and to take steps to ensure that highly qualified members of their order be assigned to the campus community. The agreement specified the desirability, "in order to preserve the Jesuit traditions of Georgetown University," that the University president be a member of the Society. Without confining deanships to their ranks, it was agreed that "qualified members of the Society of Jesus will be regularly appointed to such of those positions as may be practical." The office of University Chaplain was reserved for a Jesuit. In the words of President Healy, the 1969 agreement represented a "clear understanding that the University would continue to keep a very close affiliation with the Society of Jesus, to guarantee their presence at the University and to guarantee the meaning of the University in Jesuit terms that have existed up until that formal contract was drawn."
President Healy testified that throughout its existence Georgetown has invariably defined itself as a Roman Catholic institution. This perception is illustrated by some of the opening words in its undergraduate bulletin: "Georgetown is committed to a view of reality which reflects Catholic and Jesuit influences.... As an institution that is Catholic, Georgetown believes that all men are sons of God, called to a life of oneness with Him now and in eternity."
Georgetown University is a member of several associations of Roman Catholic educational institutions. As a Pontifical University, it is one of only two American universities entered in the Annuario Pontificio, an annual listing by the Holy See of all such institutions throughout the world. Chapels are scattered throughout its properties and Masses offered several times each day. Almost all of its directors are Catholic, although there is no formal requirement that they be so. During a five-year period just prior to trial, Jesuits made up between one third and one half of the board. Faculty members must "maintain a sympathetic attitude towards Catholic beliefs and practices...."
Roman Catholic doctrine influences some of Georgetown's policy decisions. Abortions and other proscribed procedures are not performed in the University hospital. Student newspapers may not carry advertisements for abortion clinics. Birth control devices may not be sold in the student stores. Cohabitation is forbidden between single students in the dormitories. In 1981, Georgetown returned a gift of $750,000 to the Libyan government due to the conflict between Roman Catholic teachings and that nation's perceived links with terrorist activity. Religious considerations, the trial court found, influenced Georgetown's denial of "University Recognition" and accompanying tangible benefits to the student groups.
C. Georgetown's Secular Educational Role
Despite its historical identification with the Roman Catholic Church, Georgetown University's professed intention is to provide a secular education, albeit one that is informed by Christian values. Its founder, John Carroll, insisted from the very beginning that the college be open to students of every religious persuasion. Religious belief plays no role in admissions, graduation, class attendance, participation in sports or other student activities, or eligibility for financial aid, placement facilities, awards or honors programs. The Undergraduate Bulletin declares that Georgetown "imposes no religious creed on any faculty member
D. The Relationship between Georgetown's Religious Tradition and its Secular Educational Role
From the foregoing, and from Georgetown's published materials, it appears that the University perceives itself as fulfilling a secular educational role without abandoning its religious heritage. This view is expressed in its Undergraduate Bulletin. While Georgetown reflects its Catholic and Jesuit influences,
Id. at 1. A similar idea is expressed by the Law Center: "The Law Center welcomes students of all religious beliefs and does not proselytize. On the other hand, Georgetown's religious heritage is a cherished part of its distinctive quality." Law Center Bulletin, supra, at 31.
President Healy has described the interrelationship between Georgetown's secular educational role and its spiritual objectives:
Georgetown University, Annual Report 2 (1979). In a later report, President Healy voiced similar thoughts: "... Georgetown has the imperatives of its own secular being, but the Church reinforces, strengthens, and personalizes them." Georgetown University, Annual Report 4 (1981). Also, he notes, "[e]ducation remains principally a secular business, and the university is a secular entity with a clear secular job to do. The Church, however, can deeply influence how that secular job is done." Id. at 4-5.
E. The Recognition Criteria
On October 13, 1977, the gay students of Georgetown University held a public meeting in a room on campus. Sometime later, the group chose a name, Gay People of Georgetown University (GPGU), and adopted a constitution.
Around the same time, a similar development occurred at the Law Center. There, a group known as the Gay Rights Coalition (GRC) of Georgetown University Law Center formed and adopted a constitution.
After a time, both student groups decided to seek the formal status and attendant privileges enjoyed by many other campus organizations. On the main campus, where GPGU is based, the procedures for doing so were established by written guidelines. When GPGU first initiated the recognition process, during academic year 1978-79, these criteria were contained in a document issued by the Student Activities Commission (SAC) under the name "What Your Club Needs to Know." This document was superseded in the fall of 1979 by another, more specific set of guidelines known as "Recognition Criteria: Student Clubs and Organizations" (hereinafter "Recognition Criteria"). This later document primarily clarified and expanded upon the criteria set forth in the earlier one; the two were not inconsistent. Hence, although GPGU in fact made two unsuccessful applications in successive academic years, one under each set of guidelines, we make no distinction between their applications and treat both as though they were governed by "Recognition Criteria." Also because the guidelines do not conflict, we reject the student groups' claim that "Recognition Criteria" — the later and more explicit of the two — is a "self-serving," pretextual document, adopted in response to GPGU's first application and designed to close the door on its second one.
"Recognition Criteria" sets forth a tiered system of support available to undergraduate student groups: "This support, in order to reach all the members of the community, is offered on three different levels." Id. at 1. Applications are initially submitted to SAC, an advisory body of the undergraduate student senate. The different levels of support are defined as follows:
The three tiers of recognition are listed in declining order of accessibility. The most accessible, "Student Body Endorsement," does not depend on approval by the University administration. It is available to any group which satisfies basic requirements as to size and composition and whose activities are "within the scope of the student body interest and concern, serving an educational, social, or cultural purpose." Id. at 2.
The more elusive "University Recognition," the status at issue in this case, requires approval by the University administration and may only be sought by groups that have already obtained "Student Body Endorsement." In order to obtain "University Recognition," such organizations have to satisfy two further conditions. They must:
Id. at 3. "Recognition Criteria" describes "University Recognition" as Georgetown's "endorsement of the various co-curricular activities undertaken by a specific club." Id. at 1.
"University Funding," the third and least accessible tier of recognition, may be sought only by groups that have already obtained "University Recognition." Such groups, however, have no automatic right to direct financial support. Id. at 4. Lastly, and only implicitly, a fourth tier exists outside the scheme established by "Recognition Criteria" — that occupied by completely unrecognized campus groups, operating without even "Student Body Endorsement."
More than status is at stake. The facilities and services afforded to a student group by the University are dependent upon its level of recognition within this three-tiered scheme. A group with "Student Body Endorsement," but without "University Recognition," may:
Id. at 2-3. "University Recognition" entitles a group to four additional benefits. They may
Id. at 3. Success in obtaining direct financial support, a discretionary decision by the University, elevates a student group to "University Funding," the highest tier established by "Recognition Criteria."
No written guidelines such as "Recognition Criteria" were issued at the Law Center, where GRC was located. The University's treatment of GPGU's and GRC's respective applications was, however, indistinguishable. More importantly, the student groups do not suggest that any alternative criteria were ever in force at the Law Center. We have no basis on which to conclude that the eligibility factors to be applied to GRC are significantly different from the written guidelines set forth in "Recognition Criteria" at the main campus.
F. The Student Groups' Attempts to Gain "University Recognition"
GPGU made two attempts to gain "University Recognition." The first was in academic year 1978-79 and the other immediately afterwards in the following academic year. On both occasions it obtained only "Student Body Endorsement." Georgetown refused to grant it "University Recognition" or the accompanying tangible benefits.
SAC first considered and approved GPGU's application on January 30, 1979. The same day, SAC issued the following statement:
The following day William C. Schuerman, Associate Dean of Student Affairs, informed the Student Government that GPGU would not be recognized as an "official" activity of Georgetown University.
Memorandum from Dean W. Schuerman to the Student Government (Feb. 6, 1979) (emphasis added).
GPGU appealed Dean Schuerman's decision to the Dean of Student Affairs, William R. Stott, Jr., and met with him for that purpose. See letter from GPGU to Dean W. Stott, Jr. (Feb. 24, 1979). Dean Stott upheld the decision to "den[y] endorsement to the [GPGU] as an official activity of the University's Student Affairs Program." Letter from Dean W. Stott, Jr., to GPGU (Mar. 5, 1979). He continued:
Id. (emphasis added).
GPGU again appealed, this time to Reverend Aloysius P. Kelley, S.J., Executive Vice President for Academic Affairs. Taking issue with the equation of "recognition" and "endorsement," GPGU wrote:
Letter from GPGU to Reverend A. Kelley, S.J. (Apr. 9, 1979) ("not" emphasized in original, remaining emphasis added).
After meeting with GPGU representatives, Reverend Kelley denied its appeal. He relied upon the position taken by Deans Schuerman and Stott, and then added:
Letter from Reverend A. Kelley, S.J., to GPGU (Apr. 9, 1979).
Reverend Kelley's denial of GPGU's appeal ended its attempt to gain "University Recognition" in academic year 1978-79.
GPGU renewed its efforts early in the following academic year. This time it made separate visits to SAC to request a "Student Government Charter" and, later, "University Recognition." SAC approved GPGU's request for a "Student Government Charter" on November 13 and its decision was ratified by the Student Senate on November 18, 1979. SAC accompanied its approval with the following statement:
As had happened the previous year, Dean Schuerman wrote immediately to the Student Government to point out that the administration did not accept the action of
Undaunted, GPGU again appeared before SAC two weeks later and requested "University Recognition" to add to the "Student Body Endorsement" it had already received. Both SAC and the Student Senate voted in favor of GPGU despite the administration's recent announcement that it would not accede to this request. At the end of 1979, therefore, GPGU was awaiting the University's reaction to the favorable response it had won from the Student Government.
On January 15, 1980, in an effort to clarify its position, GPGU requested the administration to furnish it with a statement as to the group's status. This was provided by the Director of Student Activities, Debbie L. Gottfried. After repeating the administration's previous reasons for denying "University Recognition," she added:
Letter from D. Gottfried to GPGU (Jan. 18, 1980) (emphasis added); see also memorandum from Dean W. Schuerman to D. Gottfried (Jan. 16, 1980).
Both GPGU and the Student Government requested that this decision be reconsidered. Letter from the Student Government to Dean W. Schuerman (Feb. 5, 1980). As had happened the previous year, GPGU met with Dean Schuerman, but failed to persuade him that "University Recognition" was appropriate. Dean Schuerman wrote:
Letter from Dean W. Schuerman to GPGU (Feb. 21, 1980) (emphasis added).
Continuing in the pattern set the previous year, GPGU unsuccessfully appealed Dean Schuerman's decision to Dean Stott and Reverend Donald Freeze, S.J., Vice President for Academic Affairs and Provost. Letter from Dean W. Stott, Jr., to GPGU (Mar. 14, 1980); letter from Reverend D. Freeze, S.J., to GPGU (Mar. 31, 1980). This time it appealed, without success, all the way to President T. Healy. Letter from GPGU to President T. Healy, S.J. (Apr. 1, 1980); letter from President T. Healy, S.J., to GPGU (Apr. 29, 1980). The day after President Healy's ultimate denial of "University Recognition," this action was filed in Superior Court.
By then, a similar chain of events had taken place at the Law Center. On December 6, 1979, GRC had submitted its application to become a "recognized" student activity to the Law Center Committee on Student and Faculty Life (CSFL). Its petition was approved by CSFL on February 14, 1980. Two weeks later, David J. McCarthy, Jr., Dean of the Law Center,
Thus, at the time this action was filed, GPGU had obtained "Student Body Endorsement" at the Main Campus and GRC had obtained its apparent equivalent at the Law Center. Neither group had been successful in its attempts to obtain "University Recognition" or the additional benefits that status carries with it.
THE TRIAL COURT PROCEEDINGS
The two gay student groups and twenty individual members brought suit against Georgetown University, its president, and the dean of its Law Center. They alleged that the denial of "University Recognition," together with the increased access to facilities and services that status entails, violated the Human Rights Act. See D.C. Code § 1-2520 (1987) (quoted supra note 1). Georgetown defended itself by insisting that its denial of "University Recognition" was not "on the basis of" the sexual orientation of the students, but rather on account of the "purposes and activities" of the particular organizations they had formed. Georgetown also asserted that even if its actions were taken on the basis of sexual orientation, they were protected by the Free Exercise Clause of the First Amendment.
The student groups moved for summary judgment. On March 9, 1981, the trial court partially granted their motion. Judge Leonard Braman found that Georgetown's denial of "University Recognition" violated the Human Rights Act. On the statutory issue as to whether Georgetown had discriminated on the basis of sexual orientation, he held, no material factual issue was in genuine dispute and the student groups were entitled to judgment as a matter of law. See Super.Ct.Civ.R. 56(c); Howard v. Riggs National Bank,
In so doing, Judge Braman found immaterial to the statutory discrimination issue Georgetown's claim that a grant of "University Recognition" would constitute an unwilling "endorsement" of the student groups.
Discrimination on the basis of sexual orientation having been found, and a statutory violation therefore established, the case proceeded to a nonjury trial on Georgetown's free exercise defense. After seven days of testimony, Judge Sylvia Bacon held that the statute was unconstitutional
Judge Bacon made several findings of fact. She described the three levels of recognition available to campus organizations and found that the student groups had achieved "Student Body Endorsement," together with its attendant tangible benefits, but had been denied "University Recognition" and the additional tangible benefits which accompany that status.
Judge Bacon also found that "Georgetown University is a religiously affiliated educational institution which serves both sectarian and secular purposes." In denying "University Recognition," Judge Bacon determined that Georgetown's administrators had applied the moral or normative teachings of the Roman Catholic Church, as these were established at trial through expert testimony and Church documents. See Archbishop John R. Quinn, A Pastoral Letter on Homosexuality (May 5, 1980); Sacred Congregation for the Doctrine of the Faith, Declaration On Certain Questions Concerning Sexual Ethics (Dec. 29, 1975). Under Catholic doctrine, sexual function has its true meaning and moral rectitude only in heterosexual marriage. Homosexual acts — as distinguished from a homosexual orientation — are morally wrong and must be viewed as "gravely evil and a disordered use of the sexual faculty." Persons of homosexual orientation have an obligation to "try as is reasonably possible to change if they find themselves in such orientation" and must in any event conform their conduct to the normative teachings on human sexuality. No believer affiliated with the Roman Catholic Church may condone, endorse, approve or be neutral about homosexual orientation, homosexual lifestyle or homosexual acts.
Judge Bacon found that "the major purpose of `[U]niversity [R]ecognition' is official endorsement, an endorsement which the University believes will conflict with the normative teachings of the Church on homosexuality." However, Judge Bacon acknowledged that, in addition to the "endorsement," a grant of "University Recognition" allows a student group access to additional facilities and services.
Judge Bacon also found that Georgetown's denial of "University Recognition" was based on its view, one not without foundation, that "the gay student organizations, as evidenced by their charters and their activities, were participating in and promoting homosexual life styles," and that Georgetown was religiously opposed to this type of group activity. University administrators acted upon a sincerely-held religious belief that official recognition of the two groups "would be inconsistent with Church normative teachings and with the basic obligation not to undermine the normative teachings of the Church." Finally, Judge Bacon found that without "University Recognition" clubs may be formed, meetings held on campus, and application made for lecture funds, and that in the District of Columbia there are other off-campus opportunities available to gay students.
In addition to her findings of fact, Judge Bacon made several conclusions of law. She held that Georgetown University is not so pervasively secular that it cannot separate secular and sectarian activities and that its receipt of federal funds for secular purposes neither required it to abandon its sectarian activities nor put it in violation of the Establishment Clause of the First Amendment. Moreover, its status as a church-affiliated educational institution allowed it to raise and rely on First Amendment guarantees of religious freedom. The religious beliefs in issue are sincerely held and central to the Roman Catholic faith and they impose affirmative commands upon its adherents. Judge Bacon held that enforcement of the Human Rights Act in this case would require Georgetown to act in a manner "inconsistent with its duties as a Catholic institution" and would therefore place a burden on the free exercise of religion. On the other hand, because there is no "national" policy requiring state intervention in matters relating to sexual orientation, the Human Rights Act does not further any "compelling" governmental interest which could
THE HUMAN RIGHTS ACT VIOLATION
In granting partial summary judgment, Judge Braman found that Georgetown's denial of "University Recognition" and the attendant tangible benefits violated the Human Rights Act. At trial on the free exercise defense, Judge Bacon therefore proceeded from the premise of an established statutory violation. Without challenging the underlying finding of a Human Rights Act violation, Georgetown asks this court to affirm Judge Bacon's conclusion that the Human Rights Act is unconstitutional as applied.
"If there is one doctrine more deeply rooted than any other, it is that we ought not to pass on questions of constitutionality... unless such adjudication is unavoidable." Spector Motor Services, Inc. v. McLaughlin,
The deeply rooted doctrine that a constitutional issue is to be avoided if possible informs our principles of statutory construction. We do not needlessly pit a statute against the Constitution. Insofar as its language permits, the Human Rights Act must be construed in a manner which protects its constitutionality. E.g., United States v. Locke,
On the facts of this case, as found by Judge Bacon after trial, the particular scheme of "University Recognition" operating
While the Human Rights Act does not require any "endorsement" — and therefore does not require the type of "University Recognition" offered by Georgetown — it does require equal access to the "facilities and services" attendant upon that status. D.C.Code § 1-2520 (1987). In this case the student groups have been denied four tangible benefits that also come with a grant of "University Recognition": officially approved use of a mailbox, use of the Computer Label Service, mailing services, and the right to apply for (but not necessarily to receive) funding. All of these tangible benefits, unlike an "endorsement," are "facilities and services" within the meaning of the Human Rights Act; the record supports Judge Braman's conclusion that they were denied on the basis of sexual orientation. Id. Tangible benefits having been denied upon an impermissible basis, we affirm, to that extent only, Judge Braman's finding that the Human Rights Act was violated; we reverse his holding that the denial of "University Recognition" was of itself a statutory violation.
A. Judge Bacon's Factual Finding that "University Recognition" at Georgetown Includes an "Endorsement"
Judge Bacon found as a fact that under the Georgetown scheme "University Recognition" benefits a student group in two ways. "The major purpose of `[U]niversity [R]ecognition' is official endorsement....", an "endorsement" which Georgetown tenders in accordance with the normative teachings of the Roman Catholic Church. "University Recognition" also gives a student group access to certain tangible benefits. Unless "clearly erroneous," these factual findings are binding upon us for purposes of this appeal. D.C. Code § 17-305(a) (1981); see Chaconas v. Meyers,
Specifically, the student groups urge us to disregard as clearly erroneous Judge Bacon's factual finding that "University Recognition" at Georgetown includes an "endorsement." They point out that other groups with "University Recognition" occupy a broad range of the political, social and philosophical spectrum, and argue that Georgetown cannot claim that all of these organizations are strictly Roman Catholic in outlook. In particular, the student groups refer us to the recognized existence of such diverse bodies as the Jewish Students Association, the Organization of Arab Students, the Young Americans for Freedom, and the Democratic Socialist Organizing Committee.
At trial, the student groups challenged President Healy with evidence concerning the University's willingness to extend "University Recognition" to organizations whose members adhere to religions other than Catholicism. President Healy responded:
With regard to the plaintiff student groups, President Healy saw the matter differently. He testified that the University does not distinguish between students on the basis of their sexual orientation and said that group activity merely promoting the legal rights of gay people would present no religious conflict. But, according to President Healy and other Georgetown representatives, including its theological expert, the purposes set forth in the GPGU Constitution described an organization for which "University Recognition" would be inappropriate for a Catholic institution.
"The statement that stopped me most," said President Healy, was GPGU's stated commitment to "the development of responsible sexual ethics consonant with one's personal beliefs." See GPGU Constitution (quoted supra note 5). Under Roman Catholic doctrine, as expert testimony established, responsible sexual ethics are not a question of personal belief. "The University cannot make that statement about any area of front line morality without insisting upon the objectivity of moral fact and that it is not left strictly to individual determination within any context which can reasonably be read as Catholic." Under Roman Catholic doctrine, contrary to GPGU's suggestion, sexual ethics are the subject of an absolute and unyielding moral law, one laid down by God.
President Healy also testified that GPGU's expressed intention to "establish a program of activities which reflect the above purposes," id., was "open-ended enough to involve the University in a host of positions and activities which together or singly it would find inappropriate." He had similar reservations about GRC's stated commitment to the provision of information to gay and lesbian law students concerning "Washington's gay community, including educational, cultural, religious, social and medical services." See GRC Constitution (quoted supra note 6). According to President Healy, GRC's association with the range of activities engaged in by the Washington gay community would "involve Georgetown University in positions it would not wish publicly to adopt."
Roman Catholic teachings establish "moral norms" which prevent believers from recognizing homosexual conduct, as distinguished from homosexual orientation, as anything other than sinful. President Healy added that the duty to obey these "moral norms"
Reverend Richard J. McCormick, S.J., Georgetown's theological expert, testified to the same effect. He said that a Roman Catholic university "has a duty to act in a way consistent with those teachings and not to undermine them in its public policies." Thus, "in its public policies and public acts," the University "ought not to adopt a public policy of explicit endorsement or implicit endorsement" of, for example, abortion, premarital intercourse, or homosexual conduct. Georgetown should not "in its public actions, policies, decisions, take a position that would equivalently establish another normative lifestyle equally valid with the one that is in a normative position." According to President Healy, a grant of "University Recognition" to GPGU and GRC would conflict with Georgetown's duty not to undermine the Roman Catholic teaching that "human sexuality can be exercised only within marriage...."
The trial court did not define precisely what it meant by "endorsement." For President Healy, "a position that the Church was either neutral or approving of the range of homosexual activities is unacceptable." (Emphasis added.) This statement reveals what we understand to be at stake. An official "endorsement," as symbolized by Georgetown's grant of "University Recognition," would express religious approval of or neutrality towards the student groups. Under the Georgetown scheme, "University Recognition" is reserved for groups that do not fundamentally challenge the "moral norms."
We cannot characterize as "clearly erroneous" Judge Bacon's finding that the scheme of "University Recognition" offered by Georgetown includes the type of "endorsement" just described. "Recognition Criteria" described it as an "endorsement." Georgetown administrators repeatedly testified that they understood it to have that effect. From the outset of its dealings with GPGU and GRC, Georgetown equated "University Recognition" with an "endorsement." Neither "Recognition Criteria" nor any evidence adduced at trial indicates that "University Recognition" is an automatic right. That status was granted in the University's discretion and some application of Roman Catholic doctrine was involved in the recognition process.
Our required deference to Judge Bacon's factual finding is not undercut by Georgetown's willingness to "endorse" a wide range of groups with extremely diverse goals and activities. For those whose common interest is a non-Catholic religious belief system, Georgetown's "endorsement" appears to have been granted in the spirit of ecumenism. For others, including WRC, the evidence permitted Judge Bacon to conclude that no "essential part of the collective activity" contravened Roman Catholic doctrine, and that the administration would withdraw "University Recognition" if there were more than "isolated instances" of unofficial activity inconsistent with those teachings. The trial court was therefore entitled to conclude that the University adopted an approving or at least neutral position towards all of the existing groups because it did not perceive them to be incompatible with its religious obligations. This comports with our understanding of what "endorsement" means in this case.
An appellate court may not usurp the role of the factfinder. We cannot label "clearly erroneous" Judge Bacon's "endorsement" finding, i.e., that "University Recognition" at Georgetown contains an expression of religious approval or neutrality towards a student group obtaining that status.
B. The "Endorsement" Distinguished from the Tangible Benefits
The distinction between the "endorsement" and the other benefits contained in Georgetown's scheme of "University Recognition" is fundamental. It is so from both a statutory and a constitutional perspective. In this case, the separateness of the benefits at issue is obscured by the fact that they are bundled together into a single package known as "University Recognition." Because the "endorsement" and the tangible benefits contained in that package are fundamentally distinct, we must sever the artificial connection between them in order to analyze the true issues.
The "endorsement" contained in "University Recognition" is an intangible. To a student group, it is no more than an expression of official approval or neutrality, a statement of Georgetown's tolerance towards organizations that pose no fundamental challenge to the "moral norms." The "endorsement" is a symbolic gesture, a form of speech by a private, religiously affiliated educational institution, an entity free to adopt partisan public positions on moral and ethical issues.
As amicus The Governor's Council on Lesbian and Gay Issues of the State of Wisconsin points out, "such a structure unnecessarily ties the University's religious beliefs to extension of benefits." Brief at 5-6. We agree. While the "endorsement" and the tangible benefits may be one for Georgetown's administrative purposes, they are not so in the eyes of the Human Rights Act, nor are they so in the eyes of the First Amendment. "The constitutionality of the statute," as the District of Columbia remarks, "cannot depend on the [U]niversity's internal linkages." Reply Brief at 3. We open up the package of "University Recognition" and examine its contents separately.
C. Applying the Human Rights Act to the "Endorsement" Element of "University Recognition"
The Human Rights Act does not require one private actor to "endorse" another. Georgetown's denial of "University Recognition" to the student groups did not violate the statute.
There are two reasons why, as a matter of statutory construction, the Human Rights Act cannot be read to compel a regulated party to express religious approval or neutrality towards any group or individual. First, the statute prohibits only a discriminatory denial of access to "facilities and services" provided by an educational institution. D.C. Code § 1-2520 (1987). An "endorsement" is neither. The Human Rights Act provides legal mechanisms to ensure equality of treatment, not equality of attitudes. Although we fervently hope that nondiscriminatory attitudes result from equal access to "facilities and services," the Human Rights Act contains nothing to suggest that the legislature intended to make a discriminatory state of mind unlawful in itself. Still less does the statute reveal any desire to force a private actor to express an idea that is not truly held. The Human Rights Act demands action, not words. It was not intended to be an instrument of mind control. Judge Braman's construction of the statute, as requiring an insincere expression of opinion, conflicts with its literal meaning.
Second, as we have already pointed out, unless the language of the statute is plainly to the contrary, we must construe it so as to uphold its constitutionality. To read into the Human Rights Act a requirement that one private actor must "endorse" another would be to render the statute unconstitutional. The First Amendment protects both free speech and the free exercise of religion.
Because similar interests are often implicated, the Supreme Court has relied on both the Free Speech Clause and the Free Exercise Clause to protect against government intrusion into the inner domain. The Court has made clear that the state is without power to regulate the intellect or the spirit; its rule is over actions and behavior only. In its initial decision interpreting the Free Exercise Clause, the Court described the division between opinion and action as "the true distinction between what properly belongs to the Church and what to the State." Reynolds v. United States, 98 U.S. (8 Otto) 145, 163, 25 L.Ed. 244 (1878). With the adoption of the Free Exercise Clause, "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." Id. at 164. The Court quoted with approval a statute drafted by Thomas Jefferson to protect religious freedom in Virginia: "[i]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." Id. (quoting 12 Hening's Stat. 84 (1784)). "[T]o suffer the civil magistrate to intrude his [or her] powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty." Id. The Court concluded,
That principle has been emphatically reaffirmed in a later free exercise case: "the Amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." Cantwell v. Connecticut, supra note 18, 310 U.S. at 303-04, 60 S.Ct. at 903 (citations omitted). The principles embraced within the "absolute" core of the clause, freedom of conscience, thought and expression of religious belief, as "sacred private interests, basic in a democracy," Prince v. Massachusetts,
A number of free speech cases have expanded the idea that government cannot force one to embrace a repugnant philosophy. Initially, these decisions implicated religious objections, but the Supreme Court has since made clear that the protection against forced speech also extends to matters of a secular nature. In West Virginia State Board of Education v. Barnette,
In a later free exercise case concerning a Sunday closing statute challenged by Orthodox Jews, Braunfeld v. Brown,
The Court relied on broader free speech principles, as it had in Barnette, when it upheld the challenge of Jehovah's Witnesses whose religion forbade them from compliance with a governmentally compelled exhibition of vehicle license plates bearing the state motto "Live Free or Die." Wooley v. Maynard,
The Supreme Court's most recent pronouncement on the right against compelled expression came in a free speech case without religious overtones. Pacific Gas & Electric Co. v. Public Utilities Commission,
"For corporations as for individuals," wrote the Pacific Gas & Electric plurality, "the choice to speak includes within it the choice of what not to say," id. at 912 (citing Miami Herald Publishing Co. v. Tornillo,
Pacific Gas & Electric, supra, 106 S.Ct. at 910. In sharp contrast to the threatened "endorsement" here, the Prune Yard Court had stressed the unlikelihood that the pamphleteers' views would be identified with those of the shopping center owner and also emphasized that no specific message was being dictated by the government in that case. 447 U.S. at 74, 100 S.Ct. at 2037. But Georgetown's scheme of "University Recognition" cannot be analogized to a public forum, nor can its campus be equated with "a business establishment that is open to the public to come and go as they please." Id.
Far from Prune Yard's required accommodation of another's speech, this case raises the specter of compelled expression in violation of the First Amendment. A grant of "University Recognition" by Georgetown includes an "endorsement" of student groups it considers broadly compatible with Roman Catholic doctrine. To that extent, "University Recognition" is speech. Government compulsion to grant "University Recognition" would threaten both the free speech and free exercise guarantees of the First Amendment. Although a compelling state interest may justify regulation of religiously motivated conduct, nothing can penetrate the constitutional shield protecting against official coercion to renounce a religious belief or to endorse a principle opposed to that belief. "The very purpose of a Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majority and officials and to establish them as legal principles to be applied by the courts." Barnette, supra, 319 U.S. at 638, 63 S.Ct. at 1185. Georgetown's right to express opinions based on Roman Catholic teachings includes the right to do so by way of granting "University Recognition" to groups it regards as consonant with that belief system. Individuals will not always agree with Georgetown's choices as to what groups are deserving of its approval, but its right to freely express its views is nonetheless protected by the First Amendment.
Freedom of expression is a right to which we all lay equal claim, irrespective of the content of our message. This is easily illustrated. Suppose that the Gay University of America (GUA) is established as a private educational institution. Part of its mission is to win understanding and acceptance of gay and bisexual persons in an intolerant society. Although open to everyone, regardless of sexual orientation, GUA does expect its faculty, staff and students to maintain a sympathetic attitude towards gay practices and the philosophies that support them. GUA has, as the trial court finds, a system of "University Recognition" through which it expresses its approval or tolerance of various student groups desiring that status. But the GUA administration refuses to grant "University Recognition" to the Roman Catholic Sexual Ethics Association (RCSEA). In that situation, the Human Rights Act's ban on discrimination based on religion could not avail the Catholic student group, for the
The trial court's construction of the Human Rights Act would transform the statute into a violation of the First Amendment. It would compel Georgetown to "endorse" the student groups despite the Supreme Court's warning that a religious actor may not be forced to "say ... anything in conflict with [its] religious tenets." Braunfeld, supra, 366 U.S. at 603, 81 S.Ct. at 1146. This construction of the Human Rights Act is required neither by its language nor by its purpose of ensuring equal treatment — treatment concretely measured by access to "facilities and services," not by the educational institution's expressed approval of the "purposes and activities" of recipient student groups.
Georgetown's obligation under the statute is not to express a particular point of view. It is to make tangible benefits available to its students without regard to their sexual orientation. The Human Rights Act does not require Georgetown to grant "University Recognition" and its accompanying intangible "endorsement" to the student groups.
D. Applying the Human Rights Act to the Tangible Benefits Contained in "University Recognition"
Although the student groups were not entitled to summary judgment on the ground that Georgetown's denial of "University Recognition" — including an "endorsement" — violated the Human Rights Act, the statute does require Georgetown to equally distribute, without regard to sexual orientation, the tangible benefits contained in the same package. If discrimination appears from the record, this court may sustain the statutory ruling "on a ground different from that adopted by the trial court." Max Holtzman, Inc. v. K & T Co.,
The Human Rights Act cannot depend for its enforcement on a regulated actor's purely subjective, albeit sincere, evaluation of its own motivations. "Bias or prejudice
One nondiscriminatory reason asserted by Georgetown for its denial of the tangible benefits contained in "University Recognition" was that it could not give its accompanying "endorsement" to the student groups without violating its religious principles. But as the Human Rights Act, properly construed, requires no direct, intangible "endorsement," Georgetown cannot avoid a finding of discrimination on that ground. The remaining nondiscriminatory reasons asserted by Georgetown may be summarized as follows: the "purposes and activities" of the student groups fell outside the boundaries set by "Recognition Criteria," rendering them ineligible for the tangible benefits they sought and not "otherwise qualified" within the meaning of the statute, D.C. Code § 1-2520 (1987); and, in any event, the denial of tangible benefits was based on the "purposes and activities" of the student groups, not on the homosexual status of their members, so that the sexual orientation of the students involved played no part in the decisionmaking process, id.
In this case, the nondiscriminatory reasons asserted by Georgetown have the effect of fusing together what would normally be two separate inquiries — are the student groups "otherwise qualified" for the tangible benefits they seek, and, if so, did Georgetown deny those tangible benefits due to the sexual orientation of their members? Here, because the answer to both of those distinct questions is determined by objective reference to the "purposes and activities" of the student groups, what are normally two separate inquiries collapse into one: did the homosexual orientation of the group members cause them to be treated differently from other applicants?
We are not bound by Georgetown's subjective perception of the "purposes and activities" to which it objected. Georgetown must view the "purposes and activities" of a student group in a way which is free from impermissible reliance upon factors unrelated to individual merit. Accordingly, if the homosexual status of group members entered into Georgetown's assessment of the "purposes and activities" of the student groups, albeit unconsciously, the denial of tangible benefits was itself based on sexual orientation. Put differently, it would be irrelevant that Georgetown saw itself as doing nothing more than applying neutral guidelines established by "Recognition Criteria" if sexual orientation had in fact influenced how those standards were applied.
In denying GPGU's application for "University Recognition" Georgetown adverted to that group's expressed purpose (one of four) to "provide a forum for the development of responsible sexual ethics consonant with one's personal beliefs." See GPGU Constitution (quoted supra note 5). That purpose is at odds with Roman Catholic teachings. But GRC's constitution contained no comparable statement; Georgetown's stated objection was to GRC's much broader intention to "[p]rovide lesbians and gay men entering the Law Center with information about Washington's gay community, including educational, cultural, religious, social and medical services." See GRC Constitution (quoted supra note 6). Because GRC's purposes include an asexual commitment to serving the broad range of needs experienced by
That Georgetown's treatment of the gay student groups was not exclusively influenced by a specific objection to "purposes and activities" inconsistent with Roman Catholic dogma was further evidenced by Debbie Gottfried, the University's Director of Student Activities. In clarifying GPGU's status after it had obtained "Student Body Endorsement," but had failed to obtain "University Recognition," Gottfried wrote that the University would not change its position "on what it feels would be interpreted as endorsement and official support of the full range of issues associated with this cause." Letter from D. Gottfried to GPGU (Jan. 18, 1980) (emphasis added). At no time has Georgetown defined what it meant by "the full range of issues" associated with the gay student groups, despite its insistence that Roman Catholic doctrine favors the provision of equal civil and political rights to homosexually oriented persons and that its religious objection was directed only to the promotion of homosexual conduct. Gottfried's statement was later repeated by Dean Schuerman, who wrote that the University would not lend its endorsement, support or approval to "the positions taken by the gay movement on a full range of issues" or "the major activities and issues which, by definition, are associated with a gay organization." Letter from Dean W. Schuerman to GPGU (Feb. 21, 1980) (emphasis added). Similarly, when Dean McCarthy turned down GRC's application at the Law Center, he wrote that the University would not lend its official subsidy and support to a gay law student organization because that "would be interpreted by many as endorsement of the positions taken by the gay movement on a full range of issues." Letter from Dean D. McCarthy, Jr., to GRC (Feb. 26, 1980) (emphasis added). Georgetown thus ascribed to the student groups not only "purposes and activities" which they may have had, but also a host of others automatically assumed to be a necessary attribute of their homosexual orientation.
Other conclusive evidence that Georgetown took homosexual orientation into account in its recognition procedures is supplied by the fact that on the same day as he denied "University Recognition" to GRC at the Law Center, President Healy wrote an essentially identical letter to the Chancellor of the Medical Center, despite the fact that no homosexually oriented students there had ever applied for such status. President Healy wrote:
Letter from President T. Healy, S.J., to Chancellor M. McNulty (May 8, 1980). This action amounted to an adverse decision without any consideration on the merits, in light of criteria neutral to sexual orientation, of the "purposes and activities" of whatever group might be formed sometime in the future. It is explicable only if Georgetown considered the predominantly homosexual orientation of some future student group at the Medical Center, and not just its specific "purposes and activities," to be a factor of intrinsic relevance to a grant of "University Recognition." That a predominantly homosexual orientation would be fatal to a bid for tangible benefits at the Medical Center establishes beyond any doubt that Georgetown was not oblivious to sexual orientation in its application of "Recognition Criteria."
It is apparent from this correspondence, all of which was before Judge Braman when he granted summary judgment on the discrimination issue, that Georgetown's denial of tangible benefits was not closely tied to specific "purposes and activities" of the student groups promoting the homosexual conduct condemned by Roman Catholic doctrine. The conclusion is inescapable that the predominantly gay composition of the student groups played at least some
Judge Braman's finding that Georgetown discriminated on the basis of sexual orientation is further supported by his express reliance on another provision of the Human Rights Act. The effects clause provides that "[a]ny practice which has the effect or consequence of violating any of the provisions of this chapter shall be deemed to be an unlawful discriminatory practice." D.C. Code § 1-2532 (1987). Under that section, despite the absence of any intention to discriminate, practices are unlawful if they bear disproportionately on a protected class and are not independently justified for some nondiscriminatory reason. As the legislative history demonstrates, the Council imported into the Human Rights Act, by way of the effects clause, the concept of disparate impact discrimination developed by the Supreme Court in Griggs v. Duke Power Co.,
In Griggs, decided shortly before the Human Rights Act was passed in its original form as a municipal regulation, the Supreme Court interpreted the federal Civil Rights Act of 1964 as prohibiting not only intentional discrimination, but also practices which prejudice protected groups and are not supported by some independent, nondiscriminatory justification. Griggs was expressly relied upon by the drafters of the Human Rights Act when the original regulation was adopted. Dr. Marjorie Parker, chairwoman of one of the committees that proposed the law to the pre-Home Rule City Council, explained to Council members that because the District regulation "parallels the Civil Rights Act," the public could look to the federal model to answer many of their questions concerning the administration and enforcement of the Human Rights Act. District of Columbia City Council, Committee Report on Title 34, "The Human Rights Law," 1 (Oct. 15, 1973) (available in the District Building) (hereinafter "Parker Report II"); see also District of Columbia City Council, Committee Report on Title 34, "The Human Rights Law," 2 (Aug. 7, 1973) (available in the District Building) (hereinafter "Parker Report I"). The Parker Report II specifically cited Griggs and noted that it "upheld the applicability of the Civil Rights Act in cases of unintentional discrimination." Id. at 3 (emphasis in original).
During the passage of the bill, the Council retained the effects clause despite opposition from local employers. A submission from the Metropolitan Washington Board of Trade and the C & P Telephone Company resulted in the preparation of a memo distributed to Council members reaffirming the Parker Report's interpretation: "The Supreme Court in Griggs v. Duke Power held that unintentional discrimination is just as liable under the Civil Rights Act as intentional discrimination." District of Columbia City Council, Memorandum on Proposed Draft Clarifications: Title 34, at 5 (Oct. 11, 1973) (available in the District Building) (emphasis in original). The memo added that "[w]hile unintentional discrimination would be unlawful [under the Human Rights Act], a finding of such would probably prevent any judgment of damages against the perpetrator." Id. The Council made only inconsequential changes to the wording of the effects clause as originally proposed.
A Human Rights Act violation was established with regard to Georgetown's denial of the tangible benefits. The evidence before Judge Braman may not permit the conclusion that Georgetown consciously denied benefits due to the sexual orientation of the student groups involved. It is nonetheless evident that the University allowed the homosexual orientation of the individuals involved — not just the "purposes and
The Human Rights Act having been violated with respect to the tangible benefits, we proceed to Georgetown's free exercise defense.
GEORGETOWN'S FREE EXERCISE DEFENSE
Georgetown claims that the Free Exercise Clause of the First Amendment exempts it from the Human Rights Act's edict that it distribute the tangible benefits equally without regard to sexual orientation. We disagree.
In the trial court, due to Judge Braman's prior statutory construction, Judge Bacon premised her free exercise analysis on the mistaken belief that compliance with the Human Rights Act would require Georgetown to provide a religious "endorsement" as well as tangible benefits. The true issue is a much more limited one. It is whether the forced distribution of various tangible benefits without regard to sexual orientation, severed from the direct "endorsement" required by a compelled grant of "University Recognition," imposes an unconstitutional burden on Georgetown's exercise of religion.
A. The Free Exercise Clause
The Free Exercise Clause provides that "Congress shall make no law ... prohibiting the free exercise" of religion. U.S. CONST. amend. I. This terse check on
B. The Burden on Georgetown's Religious Exercise
The first stage of our inquiry is to decide whether state compulsion to distribute, without regard to sexual orientation, various tangible benefits associated with "University Recognition" — use of a mailbox, access to the Computer Label Service, mailing facilities, and the ability to apply for (but not necessarily to receive) funding — would interfere with Georgetown's practice of the Roman Catholic religion. See, e.g., Tony and Susan Alamo Foundation v. Secretary of Labor,
The parties have not fully developed the extent of the burden that would be imposed on Georgetown's religious exercise by compulsion to grant the tangible benefits without "University Recognition." This case has been litigated on the "all or nothing" basis reflected in the trial court's construction of the Human Rights Act. It is nevertheless undisputed that Georgetown has consistently refused to furnish the additional tangible benefits to the student groups, and throughout has linked its refusal to Roman Catholic teachings. Georgetown is apparently opposed to extending the additional tangible benefits because of its belief that establishing another normative lifestyle conflicting with the "moral norms" would violate its obligations as a Roman Catholic institution. This objection is not "so bizarre, so clearly nonreligious in nature as not to be entitled to protection under the Free Exercise Clause." Thomas v. Review Board, supra, 450 U.S. at 715-16, 101 S.Ct. at 1431. Thus, while the threat of a direct "endorsement" has been defused, and Georgetown's primary religious fear abated accordingly, it would be inappropriate to dwell exclusively on that fact and conclude that no burden had been shown. From the record, particularly its correspondence with the student groups, we conclude that Georgetown's sincere religious objections go beyond the direct, intangible "endorsement" and extend to distribution of the contested tangible benefits even without a grant of "University Recognition."
In these circumstances, especially given the "all or nothing" manner in which this case has been litigated, we accept that the threat of enforcement of the Human Rights Act with regard to the tangible benefits imposes a burden on Georgetown's religious practice sufficient for it to invoke the Free Exercise Clause.
C. The Compelling Governmental Interest in Eradicating Sexual Orientation Discrimination
Next, if the burden on Georgetown's religious practice is not to render the Human Rights Act unconstitutional as applied, we must determine whether the District of Columbia has a compelling or overriding governmental interest in the eradication of sexual orientation discrimination.
At the outset, we note that the District of Columbia Council is unmistakably of this opinion. In enacting the Human Rights Act, the Council placed sexual orientation discrimination among the category of social evils traditionally occupied by discrimination based on race, color, religion, national origin, sex, age, and so forth. See, e.g., D.C.Code § 1-2501 (1987). In the Council's view, all forms of discrimination based on anything other than individual merit are equally injurious, to the immediate victims and to society as a whole.
The driving force behind the adoption of this legislation was the necessity for remembering, appropriately, what is embodied in our Bill of Rights — the respect for individual dignity in a diverse population. As the legislative history of the original 1973 regulation reveals:
Parker Report I, supra, at 2.
The Council determined that a person's sexual orientation, like a person's race and sex, for example, tells nothing of value about his or her attitudes, characteristics, abilities or limitations. It is a false measure of individual worth, one unfair and oppressive to the person concerned, one harmful to others because discrimination inflicts a grave and recurring injury upon society as a whole. To put an end to this evil, the Council outlawed sexual orientation discrimination in employment, D.C. Code § 1-2512 (1987), in real estate transactions, id. §§ 1-2515 to -2517, in public accommodations, id. § 1-2519, in educational institutions, id. § 1-2520, and elsewhere, id. § 1-2511. Such comprehensive measures were necessary to ensure that "[e]very individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the District, and to have an equal opportunity to participate in all aspects of life...." Id. Only by eradicating discrimination based on sexual orientation, along with all other forms of discrimination unrelated to individual merit, could the District eliminate recurrent personal injustice and build a society which encourages and expects the full contribution of every member of the community in all their diversity and potential.
In 1977, armed with the legislative power newly granted to it by Home Rule, the Council elevated its earlier regulation onto a statutory footing. See D.C.Code §§ 1-2501
While not lightly to be disregarded, the Council's strong feelings do not resolve the issue whether its ban on sexual orientation discrimination represents a compelling governmental interest. That is a question of law and "[i]t is emphatically the province of the judicial department to say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). Here, the question presented is a novel one. Although it is well settled that government has a compelling interest in the eradication of other forms of discrimination, such as that based on race, e.g., Bob Jones University v. United States, supra, 461 U.S. at 604, 103 S.Ct. at 2035, or sex, e.g., Roberts v. United States Jaycees,
We approach our task, therefore, with more than a little trepidation. Our society is built upon a heterosexual model. We are met at the outset with centuries of attitudinal thinking, often colored by sincerely held religious beliefs, that has obscured scientific appraisal and stunted the growth of legal theories protecting homosexual persons from invidious discrimination. We know one basic fact — that homosexual and bisexual citizens have been part of society from time immemorial. These orientations, like that of heterosexuals, have cut across all diverse classifications — race, sex, national origin, and religion, to name but a few. After careful reflection, we cannot conclude that one's sexual orientation is a characteristic reflecting upon individual merit.
Modern research on sexual orientation began with the investigation of Alfred C. Kinsey and his associates into human sexual
As yet, there is no scientific agreement as to the origins of heterosexual, bisexual or homosexual orientation. Although various biological, psychoanalytic and social learning theories have been advanced, none has won common acceptance. See J. MONEY & A. EHRHARDT, MAN AND WOMAN, BOY AND GIRL 229 (1972) (hereinafter MAN AND WOMAN, BOY AND GIRL); Acosta, Etiology and Treatment of Homosexuality, 4 ARCHIVES SEXUAL BEHAV. 9, 13-18 (1975); MacCulloch & Waddington, Neuroendocrine Mechanisms and the Aetiology of Male and Female Homosexuality, 139 J. BRIT. PSYCHIATRY 341, 341 (1981). On the other hand, several popular theories have been disproved. A. BELL, M. WEINBERG & S. HAMMERSMITH, SEXUAL PREFERENCE — ITS DEVELOPMENT IN MEN AND WOMEN 210-11 (1981) (hereinafter SEXUAL PREFERENCE — ITS DEVELOPMENT IN MEN AND WOMEN). Some researchers posit that sexual orientation may have multiple roots. Id. It is generally agreed, however, that individual sexual orientation develops at least by adolescence, id. at 186-87, 211, 222, if not during childhood, id.; M. SAGHIR & E. ROBINS, MALE & FEMALE HOMOSEXUALITY 17-31 (1973); Marmor, Overview: The Multiple Roots of Homosexual Behavior, in HOMOSEXUAL BEHAVIOR: A MODERN REAPPRAISAL 3, 19-21 (J. Marmor ed. 1980); Storms, Theories of Sexual Orientation, 38 J. PERSONALITY & SOC. PSYCHOLOGY 783 (1980); Warren, Homosexuality and Stigma, in HOMOSEXUAL BEHAVIOR: A MODERN REAPPRAISAL, supra, at 125-26, or even earlier, MAN AND WOMAN, BOY AND GIRL, supra, at 235.
It was found in one study of almost fifteen hundred heterosexual and homosexual men and women that homosexual adults had typically experienced sexual feelings in that direction about three years before engaging in intimate homosexual activity. SEXUAL PREFERENCE — ITS DEVELOPMENT IN MEN AND WOMEN, supra, at 187-88. There is no reliable evidence that adult homosexual orientation — the attempt is never made in the opposite direction — can be "cured." Id. at 217; W. CHURCHILL, HOMOSEXUAL BEHAVIOR AMONG MALES 283-89 (1967); Coleman, Changing Approaches to the Treatment of Homosexuality: A Review, in HOMOSEXUALITY: SOCIAL PSYCHOLOGICAL AND BIOLOGICAL ISSUES 81-82 (W. Paul & J. Weinrich eds. 1982); Marmor, Clinical Aspects of Homosexuality, in HOMOSEXUAL BEHAVIOR: A MODERN REAPPRAISAL, supra, at 277. The Alfred C. Kinsey Institute for Sex Research has concluded from its empirical studies that
SEXUAL PREFERENCE — ITS DEVELOPMENT IN MEN AND WOMEN, supra, at 190, 211, 222.
The idea that homosexuality is a form of mental disorder has been widely abandoned. See Resolution of the House of Representatives of the American Psychological Association (1975); Resolution No. 7514 of the American Public Health Association (1975); Resolution of the American Psychiatric Association (Dec. 15, 1973). Rejection of this notion followed upon studies revealing that heterosexual and homosexual men and women performed equally on standard psychological tests and were similarly free of psychopathology. E.g., M. FREEDMAN, HOMOSEXUALITY AND PSYCHOLOGICAL FUNCTIONING (1971); Hooker, The Adjustment of the Male Overt Homosexual, 21 J. PROJECTIVE TECHNIQUES 18 (1957). Gay people do experience particular psychological stresses, however, due to prejudice against them in social settings. See A. BELL & M. WEINBERG, HOMOSEXUALITIES — A STUDY OF DIVERSITY AMONG MEN AND WOMEN 195-216 (1978) (hereinafter HOMOSEXUALITIES — A STUDY OF DIVERSITY AMONG MEN AND WOMEN).
Just as it is impossible to typecast heterosexually oriented persons (or, for that matter, members of racial minorities or women), gay people cannot be neatly pigeonholed into any recognizable category. Id. passim. A homosexual orientation tells nothing reliable about abilities or commitments in work, religion, politics, personal and social relationships, or social activities, except to the extent that in many areas the lives of gay people are frequently conditioned by the attitudes of others. Id. at 139-216. It is often forgotten that "homosexuality encompasses far more than people's sexual proclivities. Too often homosexuals have been viewed simply with reference to their sexual interests and activity. Usually the social context and psychological correlates of homosexual experience are largely ignored, making for a highly constricted image of the persons involved." HOMOSEXUALITIES — A STUDY OF DIVERSITY AMONG MEN AND WOMEN, supra, at 24-25; see also Paul, Social Issues and Homosexual Behavior: A Taxonomy of Categories and Themes in Anti-Gay Argument (discussing false stereotypes affecting gay people) in HOMOSEXUALITY: SOCIAL, PSYCHOLOGICAL AND BIOLOGICAL ISSUES, supra, at 29, 46-52.
Despite its irrelevance to individual merit, a homosexual or bisexual orientation invites ongoing prejudice in all walks of life, ranging from employment to education, and for most of which there is currently no judicial remedy outside the District of Columbia or the State of Wisconsin. See generally Rivera, Queer Law: Sexual Orientation Law in the Mid-Eighties (Part II), 11 U. DAYTON L.REV. 275 (1986) (citing cases); id. (Part I), 10 U. DAYTON L.REV. 459 (1985) (same); Rivera, Recent Developments in Sexual Preference Law, 30 DRAKE L.REV. 311 (1980-81) (same); Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 HASTINGS L.J. 799 (1979) (same). Illustrative is a 1950 Senate investigation into the employment of homosexual persons and "other moral perverts" in the federal government. It concluded that even one "sex pervert in a government agency tends to have a corrosive influence upon his fellow employees.... One homosexual can pollute a government office." SENATE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS, EMPLOYMENT OF HOMOSEXUALS AND OTHER SEX PERVERTS IN GOVERNMENT, S.DOC. No. 241, 81st Cong., 2d Sess. 3-5 (1950). As a result of this reasoning it was not until 1975 that the federal government lifted its ban on the employment of homosexual workers. See generally Slovenko, The Homosexual and Society: A Historical Perspective, 10 U. DAYTON L.REV. 445, 451 (1985). Erupting into
Such discrimination has persisted throughout most of history. See generally V. BULLOUGH, HOMOSEXUALITY: A HISTORY (1979); J. KATZ, GAY/LESBIAN ALMANAC: A NEW DOCUMENTARY (1983); J. KATZ, GAY AMERICAN HISTORY (1976); HISTORICAL PERSPECTIVES ON HOMOSEXUALITY (S. Licata & R. Petersen eds. 1981) (reprinting 6 J. HOMOSEXUALITY (1980-81)). In perhaps its most virulent form, prejudice against gay people led to the Nazi concentration camps. There, homosexual prisoners were distinguished, like their unfortunate fellows, by a cloth badge, in their case one which singled them out for unusual atrocities. See Lautman, The Pink Triangle — The Persecution of Homosexual Males in Concentration Camps in Nazi Germany, in HISTORICAL PERSPECTIVES ON HOMOSEXUALITY, supra, at 141.
Although by no means a prerequisite to our conclusion of a compelling governmental interest, we note parenthetically that sexual orientation appears to possess most or all of the characteristics that have persuaded the Supreme Court to apply strict or heightened constitutional scrutiny to legislative classifications under the Equal Protection Clause. See J. ELY, DEMOCRACY AND DISTRUST 162-64 (1980); L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 15-13, at 944 n. 17 (1978); Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 HARV.L.REV. 1285 (1985); Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 SO.CAL.L.REV. 797 (1984); cf. Bowers v. Hardwick,
If we were to measure these characteristics as against these standards we would find that scientific literature characterizes sexual orientation as a status which is "determined by causes not within the [individual's] control," see Mathews v. Lucas,
The compelling interests, therefore, that any state has in eradicating discrimination against the homosexually or bisexually oriented include the fostering of individual dignity, the creation of a climate and environment in which each individual can utilize his or her potential to contribute to and benefit from society, and equal protection of the life, liberty and property that the Founding Fathers guaranteed to us all.
Speaking of discrimination in other areas, the United States Commission on Civil Rights has noted that discrimination hurts society in ways that are subtle, and often unseen:
U.S. COMMISSION ON CIVIL RIGHTS, AFFIRMATIVE ACTION IN THE 1980S: DISMANTLING THE PROCESS OF DISCRIMINATION 12-14 (1981); see also Brest, The Supreme Court 1975 Term — Forward: in Defense of the Anti-discrimination Principle, 90 HARV.L.REV. 1, 8 (1976) ("Decisions based on assumptions of intrinsic worth and selective indifference inflict psychological injury by stigmatizing their victims as inferior. Moreover, because acts of discrimination tend to occur in pervasive patterns, their victims suffer especially frustrating, cumulative and debilitating injuries").
"As long as homosexual men and women, as well as other groups of people who are simply seen as `different' from the majority of American citizens, continue to be viewed through stereotypical thinking, our
We consider that the Council of the District of Columbia acted on the most pressing of needs when incorporating into the Human Rights Act its view that discrimination based on sexual orientation is a grave evil that damages society as well as its immediate victims. The eradication of sexual orientation discrimination is a compelling governmental interest.
D. Balancing the Compelling Governmental Interest against the Burden on Religious Exercise
Given that the District of Columbia has a compelling governmental interest in eradicating sexual orientation discrimination, we must determine whether that interest outweighs the burden enforcement of the Human Rights Act would impose on Georgetown's religious exercise.
In this case, compelling equal access to the tangible benefits, without requiring the intangible "endorsement" contained in "University Recognition," imposes a relatively slight burden on Georgetown's religious practice. As Georgetown itself concedes, "[t]he only tangible benefits plaintiffs could receive by the grant of official recognition are relatively insignificant — such as mailing and computer labeling services." Supplemental Brief at 2. It then argues that "[s]uch minor perquisites cannot outweigh the substantial burden on the University's religious liberty that would flow from compelled recognition of the student groups." Id. But its argument fails because the "substantial burden" to which it refers — compulsion to grant the intangible "endorsement" contained in "University Recognition" — is not required by the Human Rights Act. By Georgetown's own admission, what the Human Rights Act actually does require — equal distribution of the tangible benefits — is considerably less burdensome.
Our conclusion that the burden on religious liberty does not outweigh the District's compelling interest receives additional support from the facts that Georgetown voluntarily gives the student groups the fewer tangible benefits that come with "Student Body Endorsement" and that it has never objected to the student groups meeting on campus. Without interference from the Georgetown administration, the student groups are an active force in the university community. GPGU, for example, has held campus meetings almost weekly, hosting discussions, speakers, and educational and social events. Finally, the
E. Enforcement of the Human Rights Act is the Least Restrictive Means Available
Finally, even though the District of Columbia's compelling interest in eradicating sexual orientation discrimination outweighs the burden that compliance with the Human Rights Act would impose on Georgetown's religious exercise, the statute can be enforced only if it is the least restrictive means of attaining that goal. Thomas v. Review Board, supra, 450 U.S. at 718, 101 S.Ct. at 1413.
Here, that condition is met. To tailor the Human Rights Act to require less of the University than equal access to its "facilities and services," without regard to sexual orientation, would be to defeat its compelling purpose. The District of Columbia's overriding interest in eradicating sexual orientation discrimination, if it is ever to be converted from aspiration to reality, requires that Georgetown equally distribute tangible benefits to the student groups. Other than compelling the equal provision of tangible benefits, there are no available means of eradicating sexual orientation discrimination in educational institutions that would be less restrictive of Georgetown's religious exercise.
The Human Rights Act does not require a grant of "University Recognition" because, in the particular scheme at Georgetown University, that status includes a religiously based "endorsement" of the recipient student group. But the Human Rights Act does demand that Georgetown make its "facilities and services" equally available without regard to sexual orientation. Those "facilities and services" include the tangible benefits that come with "University Recognition." Georgetown denied tangible benefits on the basis of sexual orientation and in so doing violated the Human Rights Act. The University's free exercise defense does not exempt it from compliance with the statute, because the District of Columbia's compelling interest in eradicating sexual orientation discrimination outweighs any burden that equal provision of the tangible benefits would impose on Georgetown's religious exercise. On statutory rather than constitutional grounds, we therefore affirm the trial court's holding that Georgetown is not required to grant the student groups "University Recognition." We reverse the trial court's ruling that the Free Exercise Clause relieves Georgetown from its statutory obligation to provide the tangible benefits without regard to sexual orientation. We order the trial court to enter judgment accordingly.
PRYOR, Chief Judge, concurring:
I adopt the holdings of Judge Mack's opinion, but write briefly to make clear what I perceive to be the effect of our decision.
Initially, we are met with the threshold question of whether we can reconcile the District of Columbia Human Rights Act, D.C. Code § 1-2520 (1981), with competing constitutional protections without declaring the Act invalid. Although we inevitably must invoke constitutional principles in order to decide critical questions, I agree that we legitimately accomplish our task here by a construction of the Act, which does not require us to rule it, or any part of it, invalid.
Balancing the governmental interest in deterring unlawful institutional discriminatory practices, against the University's own rights under the free exercise clause of the first amendment, I conclude, in the present circumstances, that nothing in the Act requires the University, over its constitutional objections, to publicly associate itself or affirmatively support the goals or activities of the gay student organizations. There is no compelling reason to require the University to do so. Nor is it unlawfully discriminatory for the University to fail to do so.
There remains, of course, the question of what tangible facilities the University may grant or deny. Conceptually there is a critical difference between the premise that Georgetown should not be compelled to publicly adopt or support the activities of the groups, as contrasted to allowing the use, as is so with other student groups, of basic facilities available to other members of the University community. Thus, the fair access to meeting halls and related basic needs would not, in my opinion, intrude unduly upon the University's rights.
Lastly, I would observe that our Human Rights Act is broad and comprehensive. It covers a wide range of possible discriminatory practices. Necessarily our decisions will reflect the nature of the asserted discrimination, the presence or absence of historic conditions which surround the question, legislative intent, and case precedent. For me, the decision in this instance reflects those considerations and does not, in any way, signal a weakening of the purposes the Act was intended to serve.
NEWMAN, Associate Judge, concurring, with whom Associate Judges MACK, FERREN and TERRY, join as to Part VI:
I join the court's conclusions that Georgetown University has violated the District of Columbia Human Rights Act by denying the tangible benefits associated with "University Recognition" to the student groups Gay People of Georgetown University (GPGU) and Gay Rights Coalition (GRC) on the prohibited ground of their sexual orientation, and that the University's free exercise defense is of no avail. I write separately to clarify the court's holding as I understand it, and to differ with the approach of the lead opinion (authored by Judge Mack) to analyzing the free exercise claim.
As I understand the court's decision today, it affirms in part and reverses in part decisions of the trial court. It upholds Judge Braman's finding of discrimination in violation of the Human Rights Act to the extent that that finding was based on the University's withholding of material benefits from the gay student groups. To the extent that Judge Braman's ruling had encompassed the denial of whatever intangible benefits are connected with "University Recognition," the court's opinion today reverses that holding as a matter of statutory construction. Finally, today's decision reverses Judge Bacon's determination that enforcement of the Human Rights Act in the circumstances of this case would work an unconstitutional infringement of the University's rights under the free exercise clause of the first amendment.
The Human Rights Act requires educational institutions to provide "facilities and services" on an equal basis without regard to various characteristics of the persons served, including their sexual orientation. That these "facilities and services" can include only tangible items should be apparent from the plain language of the statute, and, as the lead opinion notes, lead op. at 32, from our obligation to construe statutes in a manner as to avoid constitutional questions. Crowell v. Benson,
As for Georgetown's free exercise defense, I believe that the lead opinion wrestles unduly with the question of whether the District's interest in enforcing its anti-discrimination statute is a "compelling" governmental interest, as required for it to withstand first amendment scrutiny. See Thomas v. Review Board,
While the ultimate constitutional question is, of course, for the judiciary alone to decide, the kind of legislative-like weighing of interests revealed by the lead opinion is inappropriate here. For even in constitutional adjudication "a court cannot lightly dispute a determination by the political branches that the ... interests at stake are compelling...." Finzer v. Barry, 255 U.S.App.D.C. 19, 28,
There may be sound reasons why courts have avoided defining explicitly a particular standard of deference to legislative findings when assessing a constitutional claim. The Supreme Court has recognized that "[a]nnounced degrees of `deference' to legislative judgments, just as levels of `scrutiny' which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result." Rostker v. Goldberg,
There are two reasons why the courts do not sit as super-legislatures to divine the importance of governmental interests. The first is that the government bears the burden of proof in seeking to uphold the constitutionality of a statute; when a fundamental right is at stake, the burden is on the government to show the existence of a compelling interest. First National Bank of Boston v. Bellotti,
The second reason why we owe some measure of deference to the government's
Hence, this court in considering a constitutional claim for a religious exemption from the narcotics laws "chose not to accept appellant's suggestions that in balancing competing interests, we take into account evidence minimizing dangers from marijuana abuse," and reasoned that "[t]his court will not substitute its judgment for that of the legislature...." Whyte v. United States,
The District of Columbia Council was confident of both the "importance and noncontroversial character" of the Human Rights Act's purposes. Council of the District of Columbia, Committee Report of Bill 2-179, supra, at 1 (noting that twelve of the thirteen Council Members had co-sponsored the bill). We owe that legislative assessment some degree of deference.
Whatever measure of deference courts may give to a legislative judgment, that deference is especially appropriate where, as here, there is evidence of record that the legislature was aware of competing claims of constitutional magnitude. See Rostker, supra, 453 U.S. at 72-74, 101 S.Ct. at 2655-56 (constitutionality of Congress' exclusion of women from military draft supported by legislative record revealing that the exclusion was a considered legislative choice and not enacted "`unthinkingly'" or as the "`accidental byproduct of a traditional way of thinking about females'") (citations omitted).
The Supreme Court's free exercise decisions suggest that the Court may give more deference to the legislative choice when a religious objector seeks exemption from a statutory scheme that already admits of some exception for religious adherents. For example, in United States v. Lee,
By failing to walk that "middle ground between a judicial House of Lords and the abandonment of any limitation on the other branches," a court is likely to forget "what are surely the main qualities of law, its generality and its neutrality." Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV.L.REV. 1, 16 (1959). By engaging in a legislative-like ab initio assessment of the importance of the asserted governmental interest, a court risks ignoring the more traditional judicial task of comparing like cases to determine the appropriate outcome in the instant one. In so doing, it would forget "the very essence of [the] judicial method to insist upon attending to such other cases." Id. at 15. A brief review of the Supreme Court's free exercise jurisprudence assures us that the government has met its burden of demonstrating that its interest in enforcing the Human Rights Act outweighs Georgetown University's claim for religious exemption.
The Supreme Court has held a variety of governmental interests sufficient to sustain facially neutral laws or regulations challenged by religious objectors under the free exercise clause. In Goldman, supra, 106 S.Ct. at 1314, the Court held that the military's interest in "uniformity" permitted it to enforce its dress regulations to prohibit an Orthodox Jewish serviceman from wearing a yarmulke while on duty. In Lee, supra, 455 U.S. at 260, 102 S.Ct. at 1057, the "broad public interest in maintaining a sound tax system" prevented exemption from the Social Security tax for an Amish employer employing other Amish. In Braunfeld v. Brown,
By contrast, in those cases in which the Court has upheld a free exercise challenge and required the government to make exception to its general scheme in order to accommodate a religious objector, it has made clear that the government presented only the weakest of interests to support its refusal to make such an accommodation. In Thomas, supra, 450 U.S. at 719, 101 S.Ct. at 1432, and Sherbert, supra, 374 U.S. at 407, 83 S.Ct. at 1795, the Court found that the states' asserted interests were without support in the record or had not been raised below. These cases involved the denial of unemployment compensation to employees who had left their employment rather than comply with a job task, Thomas, or work schedule, Sherbert, that conflicted with religious beliefs. The states argued that granting compensation would lead to fraudulent claims and dilution of the fund. See 450 U.S. at 718-19, 101 S.Ct. at 1432; 374 U.S. at 407, 83 S.Ct. at 1795.
In Yoder, supra, the Court determined to uphold the free exercise claim because to reject it "would do little to serve those interests" that the state had advanced in favor of enforcement of its law. 406 U.S. at 222, 92 S.Ct. at 1536. Cf. Bellotti, supra, 435 U.S. at 787-88, 98 S.Ct. at 1422 ("However weighty [the state's] interests may be ..., they either are not implicated in this case or are not served at all ... by the prohibition....") (footnote omitted). Taking into consideration the Amish way of life and the fact that the Amish were willing to comply with the state's requirements up through the eighth grade, the Court concluded that "Wisconsin's interest in compelling the school attendance of Amish children to age 16 emerges as somewhat less substantial than requiring such attendance for children generally." Yoder, supra, 406 U.S. at 228-29, 92 S.Ct. at 1540.
The Court in Yoder was also confident that no "harm ... to the public safety, peace, order, or welfare" would result from exempting the religious objectors from application of the law. Id. at 230, 92 S.Ct. at 1540. Cf. Whyte, supra, 471 A.2d at 1021 (refusing to grant religious exemption since "plainly enforcement of the CSA [Controlled Substances Act] directly operates to protect the public from the dangers of drug abuse and its repurcussions"). Moreover, the Court was mindful that it was dealing with a "way of life that ... interferes with no rights or interests of others," Yoder, supra, 406 U.S. at 224, 92 S.Ct. at 1537. See also West Virginia State Board of Education v. Barnette,
While government cannot compel religious or other belief, Braunfeld, supra, 366 U.S. at 603, 81 S.Ct. at 1146, Cantwell v. Connecticut,
Finally, the Supreme Court has indicated that the compass of the right to free exercise of religion is measured not only by the importance of the governmental interest but by the nature of the burden imposed on the religious objector. See, e.g., Braunfeld, supra, 366 U.S. at 606, 81 S.Ct. at 1147 (cautioning against "strik[ing] down, without the most critical scrutiny, legislation which imposes only an indirect burden on the exercise of religion, i.e., legislation which does not make unlawful the religious practice itself"). I do not understand Georgetown to argue that discrimination against any persons or groups is a tenet of its faith. Rather, it claims that providing the disputed facilities and services to the gay student organizations infringes the University's religious interest in embracing a particular doctrine of sexual ethics. Therefore, to require the University to make available its facilities and services in an even-handed manner works, at most,
Finally, I note that Judge Belson, concurring in part and dissenting in part, has determined that there is a constitutional distinction between the Human Rights Act's stricture against sexual orientation discrimination and its bar against racial discrimination. While expressly acknowledging that "[i]n evaluating the District of Columbia's governmental interest in eradicating discrimination based on sexual orientation, it is appropriate to give great weight to the judgment of the District of Columbia Council," J. Belson's op. at 160, he nonetheless chooses to ignore the legislative judgment. He finds — contrary to the law's text and history — that it is "reasonable to postulate" that the Council did not intend the various grounds of discrimination to be regarded equally. Id. at 161. From this assumption he goes on to conclude that the District's interest in eliminating sexual orientation discrimination is a less than compelling governmental interest. Judge Belson would therefore have the University prevail on its free exercise claim.
In Judge Belson's view, "it cannot be said that the goal of eliminating discrimination on the basis of sexual orientation ... has attained the same high priority as public policy, in the District of Columbia or
The legislature of the District of Columbia regarded as one of its first priorities after attaining home rule to enact an anti-discrimination statute that includes sexual orientation as a co-equal prohibited ground of discrimination. See id. at 69-70. Indeed, as Judge Belson himself observes, "neither he statutory language nor [the Act's] legislative history indicates whether the Council intended to assign any hierarchy to the several proscribed bases for discrimination." J. Belson's op. at 160-61. It is precisely this fact, i.e., that the Council made no distinction among the various prohibited grounds while at the same time it emphasized that the elimination of discrimination was of the "highest priority," see ante at 41, citing Council of the District of Columbia, Committee Report of Bill 2-179, that provides the basis for concluding that the governmental interest asserted here is a compelling one.
Our statute, like the Minnesota public accommodations act scrutinized by the Supreme Court in Roberts, "reflects th[is jurisdiction's] strong historical commitment to eliminating discrimination and assuring its citizens equal access to publicly available goods and services." 468 U.S. at 624, 3253. The District of Columbia Human Rights Act and those of the various states "provide the primary means for protecting the civil rights of the historically disadvantaged" when the federal government fails to offer such protection, id. (noting the role of states in protecting civil rights in the period before 1957). The District of Columbia Council, determining to pioneer where the federal government, and indeed many state governments, have not, has chosen to include sexual orientation discrimination within the ambit of those forms of discrimination that it deems anathema in this jurisdiction. See generally id. (evolution of antidiscrimination legislation has involved progressive broadening of scope of facilities covered and groups protected). This provision, no less than the Act's more traditional prohibitions, deserves the deference of this court.
In light of Judge Ferren's opinion, concurring in the result in part, and dissenting in part, I reemphasize that the only issues in this case are: first, what does the Human Rights Act require; and, second, does enforcement of the Act violate Georgetown's first amendment rights? The answer to the first question is that the Human Rights Act compels educational institutions in the District of Columbia to provide "facilities and services" on an equal basis without regard to the sexual orientation of the persons served. Such facilities and services necessarily include only tangible items. The answer to the second question is that enforcement of the Act as thus construed does not unconstitutionally infringe the University's rights under the first amendment. I reject Judge Ferren's view that I ought to decide that which is not before us in this case, specifically, the use of the University's name by the gay student groups.
FERREN, Associate Judge, with whom TERRY, Associate Judge, joins, concurring in the result in part and dissenting in part:
I continue to subscribe to the views expressed in the opinion of the division vacated by the en banc court, Gay Rights Coalition of Georgetown University v. Georgetown University,
Georgetown has not cross-appealed the trial court's ruling that the university has violated the Human Rights Act. Nonetheless, five of my colleagues have addressed the statute. Judges Mack, Pryor, and Newman distinguish between two types of impact: while agreeing that Georgetown has violated the Act in a "tangible" respect, they justify Georgetown's "intangible" discriminatory conduct by saying the Act does not reach it. In contrast, Judges Belson and Nebeker, while not accepting this dichotomy, doubt that Georgetown has violated the Act in any respect but conclude a remand would be necessary to determine whether their surmise is true. They leave open the possibility that, if improperly motivated, Georgetown has violated the Act by failing to accord not only the tangible, facilities benefits but also the intangible, recognition status. As to the constitutional issue, Judges Mack, Pryor, and Newman conclude that the Act, as far as it reaches, does not violate Georgetown's first amendment rights, whereas Judges Belson and Nebeker believe that no application of the Act to Georgetown on this record can survive a constitutional defense. None of these analyses is persuasive.
I propose to show, in Part I, why Judges Mack, Pryor, and Newman erroneously distinguish between tangible and intangible benefits in evaluating the reach of the Human Rights Act and in sustaining the constitutionality of the Act only as to the former. Next, in Part II, I reject Judge Belson's contention, adopted by Judge Nebeker, that although the Human Rights Act enjoins discrimination based on "preference or practice," it can never reach discrimination directed at "speech" or "advocacy." It can, since one's speech is an essential part of who one is as a person and thus reflects one's preference or practice. Furthermore, even assuming the validity of Judge Belson's distinction, the Act can extend to discrimination directed at speech, depending on the motive behind, or the means of accomplishing, the discrimination.
As to the constitutional issue, which I believe is the only issue in the case, Gay Rights I, 496 A.2d at 568, I address in Part III why the free exercise clause of the first amendment does not accord Georgetown the right, in derogation of the Human Rights Act, to withhold from the gay rights groups the complete "University recognition" — the intangible, official status with attendant tangible benefits — they seek. Basically, Georgetown does not have an absolute first amendment right to withhold any aspect of such recognition, and, on this record, the university does not otherwise have that right because a compelling governmental interest substantially outweighs whatever burden the Act places on Georgetown's exercise of its religious beliefs.
On appeal, both at division and en banc, Georgetown University has never questioned the trial court's ruling that the university's refusal to "recognize" the two gay rights groups as official student organizations violates the District of Columbia Human Rights Act's prohibition against discrimination by an educational institution as to use of its "facilities and services" based upon "sexual orientation." D.C. Code § 1-2520(1) (1987). In fact, Georgetown has stated in its brief a desire "not to appeal separately that ruling" and thus has sought to defend itself on appeal solely on the ground that the Act, as applied, is unconstitutional under the free exercise clause of the first amendment.
Judge Mack, however, citing the "deeply rooted doctrine that a constitutional issue is to be avoided" to the extent possible, attempts to decide the case first under the Act and, as a consequence, purports not to reach the constitutional question insofar as it pertains to the intangible, status element of "university recognition." Ante at 16, & n. 13.
Moreover, the theoretical tools Judge Mack and her colleagues employ to show that denying the status of "University recognition" does not violate the Human Rights Act are inadequate to the task. As elaborated below, the Human Rights Act demands more than nondiscriminatory access to tangible benefits; and, in any event, the distinction drawn between tangible and intangible benefits does not serve to enhance the constitutionality of the Act. As I see it (and to this extent I agree with Judges Belson and Nebeker), compelled "University recognition" either is constitutional in both its aspects or is altogether unconstitutional; there is no middle ground.
If Judge Mack and her colleagues are correct — if gay rights groups must have access to tangible benefits equal to that of other groups but may lawfully be excluded from the list of officially "recognized" student groups having access to the same benefits — then the Act permits a "separate but equal" access to university facilities and services reminiscent of the justification that once permitted blacks on public buses, but only in the back. The Act's protections are not so narrow.
The Human Rights Act, D.C.Code § 1-2520 (1987), provides in relevant part:
An analogy to a similar form of discrimination helps underscore the point. Suppose, hypothetically, that a local private college religiously wedded to the views of the clergy who once offered a Biblical defense of slavery,
It appears to me, therefore, that because the Act expressly bars discrimination on the basis of sexual orientation as well as race, sex, age, and other specified characteristics — and because it does not say that one form of discrimination may be less unlawful than another — the Act thus clearly proscribes all aspects of Georgetown's non-recognition of student gay rights groups, just as it would proscribe similarly discriminatory treatment of racial groups.
Just as Judge Mack's distinction between tangible and intangible benefits is not helpful in defining the reach of the Human Rights Act, it provides little enlightenment for resolving the constitutional question that is at the heart of Judge Mack's statutory analysis. Judge Mack distinguishes tangible from intangible benefits because she believes that compelling the university to give equal access to the intangible benefit of "recognition" would force it to speak in conflict with its religious tenets, whereas government-ordered access to tangible benefits would compel only conduct, not speech. The difference is critical, Judge Mack contends, because the first amendment absolutely forbids the government to compel speech but does not necessarily bar compelled conduct burdening religious practice. Consequently, she says, only the demand to provide the status of "University recognition" automatically violates the free exercise clause; requiring the mere "conduct" of giving equal access to tangible benefits, while burdening Georgetown's free exercise rights, is nonetheless constitutionally permitted if justified by a compelling state interest. See ante at 20-22.
As elaborated in Gay Rights I and later in this opinion, I do not believe that either the intangible or the tangible benefits of "University recognition," if required, would violate Georgetown's free exercise rights. But, if Judge Mack were correct that compelled verbal "recognition" of the student groups would be a compelled religious stand in violation of the first amendment, I do not comprehend how enforcement of student access to visible, tangible benefits such as an office, a telephone, mailing services, and advertising privileges financed by the university would be any less evidently an unconstitutional requirement. Forced financial support for particular ideas is, in general, no less a required endorsement than compelled verbal support: depending on the circumstances, compelled financial support may well constitute an infringement of first amendment protections. See Abood v. Detroit Board of Education,
Furthermore, contrary to Judge Mack's premise, even if one views forced "recognition" as a form of compelled speech, it is not for that reason automatically unconstitutional. Judge Mack equates "recognition" with "endorsement" and "endorsement" with "speech," which she asserts the government cannot compel even when its actions are grounded in a compelling state interest such as ending discrimination based on sexual orientation. Her analysis is too simple, for it glides over a crucial question: assuming that "recognition" is a form of "endorsement," what exactly is it an endorsement of — a student group's values or, instead, merely a group's right to exist on campus and to advocate its values? The former is speech; the latter may not be.
Judge Mack states that "recognition" constitutes "endorsement," meaning "religious approval of or neutrality towards the student groups." Ante at 19. She treats the question as a factual issue settled by the trial court subject only to the clearly erroneous standard of review. On the contrary, however, the nature of the "endorsement" that "recognition" represents is ultimately a legal rather than a purely
It should be obvious that the constitutional significance of an act, such as the giving of "University recognition," is a question of law which the court of appeals must evaluate in detail. The constitutional significance of an act as "speech" or as "endorsement" of a particular moral or ideological position, therefore, must be understood as an objective question. If the actor's subjective view of what an act means were to determine whether compelling the act is unconstitutional, then every private actor would hold a veto over all our civil rights laws; an employer, for example, could interpret having to hire members of all races on an equal footing as a statement of approval of their moral equality — a statement which, under Judge Mack's analysis of free speech or free exercise immunity, the employer could not be compelled to make. There is no simple legal standard for translating the constitutional concepts of speech and endorsement into an empirical question of fact comparable, for example, to the question of a person's motive for an act of discrimination. The constitutionality of compelling a given act suggests questions too intimately bound up with a history of Supreme Court opinions addressing a great variety of demands on private actors to be treated as an ordinary factual issue for resolution in the trial court.
In the present case, therefore, we may accept the trial court's finding of fact that Georgetown sincerely views "recognition" as "endorsement," but that only begins the inquiry. Thus, Judge Mack's deference to the trial court's finding only serves to avoid a responsibility that this court must squarely face: to argue through the controversial problem of what "recognition" means constitutionally — an analysis that this court is in as good a position as the trial court to make, since the question is, fundamentally, one of law.
Furthermore, even if the trial court's characterization of "recognition" as "endorsement" were purely a finding of fact, the trial court simply did not make the kind of finding Judge Mack claims it made. In Judge Bacon's order upholding Georgetown's free exercise defense, the judge stated that "[t]he major purpose of `university recognition' is official endorsement, an endorsement which the University believes will conflict with the normative teachings of the Church on homosexuality." This finding does not specify what kind of moral or ideological position such "recognition" is an "endorsement" of. Moreover, the trial court's order provides no basis for believing the court itself understood its finding to be one of constitutional fact or even of constitutional significance. The trial court's order, therefore, cannot provide the foundation for Judge Mack's constitutional argument that "recognition" means endorsement of the sort absolutely forbidden by the Constitution.
Turning to the constitutional question itself, I agree with Judge Mack that regulations literally compelling someone to speak moral or ideological statements are directly and extremely intrusive upon the individual's
Judge Mack argues from the premise that requiring Georgetown to give "recognition" is constitutionally the same as requiring school children to recite the pledge of allegiance to the flag (Barnette) or state office-holders to affirm their belief in God (Torcaso). Only in this way can she conclude that, in this case, we have a simple example of compelled speech absolutely forbidden by the Constitution. But, in equating compelled "recognition" with the forced ideological statements at issue in Barnette and Torcaso, Judge Mack has pulled one sentence about "endorsement" from the trial court order and made it the linchpin of a sophisticated constitutional theory on which the trial court itself did not rely. In fact, however, that trial court finding is perfectly consistent with the view expressed in Gay Rights I, 496 A.2d at 573-74, that on this record "recognition" represents, at most, official "endorsement" of the gay student groups' right to organize on campus and pursue their own moral agenda. Thus, requiring Georgetown to "recognize" the gay rights groups may amount to no more than compelled "tolerance" by one entity of the beliefs and speech of another (the kind of forced toleration that is at the very heart of all our civil rights laws) and, to the extent such "recognition" brings tangible benefits, compelled subsidization of another's speech.
Judge Mack's assumption that "recognition" means "endorsement" of a recognized group's values, then, slides over the central question whether legally compelled "recognition" constitutes forced speech expressing approval of or neutrality toward another's values, or merely amounts to required toleration of someone else's speech. A precise answer to this question is essential because Supreme Court decisional law has created this distinction. Cases like Pacific
In sum, in making a constitutional distinction between tangible and intangible benefits, Judge Mack does not discuss why compelled provision of tangible benefits for a group with an announced cause is not constitutionally equivalent to compelled verbal support.
Despite Judge Mack's purported reliance on statutory construction for part of her analysis, I have tried to show that her interpretation of the reach of the Act is too limited. I have also tried to show, in any event, that her interpretation is entirely governed by constitutional analysis that fails to define "recognition" or "endorsement" with sufficient precision and that further suffers from internal inconsistency in attempting to create a meaningful distinction between tangible and intangible aspects of "University recognition." Thus, we need to take a fresh look at the only real issue on appeal: "whether Georgetown's unwillingness to `recognize' the gay rights groups — as that concept is to be understood — must be excused on the ground that the Human Rights Act, as applied, impermissibly interferes with the University's constitutional right to the free exercise of religion." Gay Rights I, 496 A.2d at 568. I return to this central question in Part III. First, however, I wish to address Judge Belson's effort to show that, although he believes a remand would be necessary to clarify the university's motives, the Human Rights Act would not bar Georgetown's actions toward the gay rights groups if motivated solely by a desire to suppress advocacy of homosexual conduct.
In contrast with Judge Mack, Judge Belson reads the Human Rights Act in a way that may not proscribe any of Georgetown's discriminatory conduct. He argues that the Act's reference to "sexual orientation" only forbids discrimination based on sexual "preference or practice," not discrimination based on "advocacy," meaning "promotion of ideas or activities." Post at 65. If Georgetown engaged only in the latter sort of discrimination, he says, it did not violate the Act. But for his disposition of the appeal on constitutional grounds, on the assumption that Georgetown has violated the Act, Judge Belson would remand for further proceedings to clarify the university's motives.
There are two problems with Judge Belson's analysis. First, given the trial court findings on which he relies — and which are supported by the record — no remand is necessary to determine the university's motives for purposes of evaluating whether Georgetown has violated the Human Rights Act. Indeed, on the basis of the findings by both trial judges in the statutory and constitutional phases of the proceedings — which Judge Belson himself suggests we can rely on for purposes of analyzing all issues in this case — the student groups are entitled to prevail on the statutory issue. Second, Judge Belson incorrectly argues that the Act can never, consistent with the Constitution, interdict discrimination directed at "speech" or "advocacy."
According to Judge Belson, Georgetown claims it denied "University recognition" because it disagreed with the ideas the gay rights groups were propagating, not because the groups were composed primarily of homosexuals. Judge Belson perceives, however, that the trial court (Judge Braman) mistakenly understood the Human Rights Act to forbid discrimination against a group on account of its advocacy. Post at 65. Consequently, suggests Judge Belson, the trial court appears to have concluded, erroneously, that Georgetown's own stated reasons for its actions violated the Act, and thus, he says, the court improperly granted summary judgment for the students on the statutory issue. Judge Belson further suggests, however, that this court can evaluate the appropriateness of summary judgment under the Act by reference to additional findings by Judge Bacon in connection with her evaluation of Georgetown's free exercise defense. Post at 66-67. Judge Belson then acknowledges that Judge Bacon's findings do not warrant summary judgment for the university under the Act; they do not establish that the only basis for the university's discrimination was the student groups' promotion of ideas or of activities. Accordingly, he concludes, but for the appropriateness of disposing of the case solely on constitutional grounds, he would remand to the trial court "for findings of fact and conclusions of law addressed specifically to the statutory issues," post at 66-67, in particular the university's motives.
Judge Belson is correct in noting, post at 67 n. 9, that Judge Bacon found "the President of Georgetown University, the Dean of the Law Center, and defendants' expert witness" — in attempting to justify Georgetown's discriminatory actions on religious grounds — applied Catholic teachings with two realities in mind: "[t]he gay student organizations, as evidenced by their charters and their activities, were participating in and promoting homosexual life styles." (Emphasis added.) We thus have an express finding of discrimination based not only on advocacy ("promoting") but also, in Judge Belson's words, post at 65, on "status as a member of a protected group" ("participating" in homosexual lifestyles). It is not clear, therefore, why Judge Belson fails to acknowledge that Judge Bacon supplied a supplementary finding sufficient to sustain Judge Braman's ruling that the university violated the Human Rights Act. Judge Mack's lengthy analysis of the record, ante at 26-29, unquestionably validates the finding that the university was motivated not merely by aversion to the gay rights groups' "promotion of ideas or activities," post at 65, but also by disdain for their status, i.e., their sexual "preference or
Given my colleagues' emphasis on statutory analysis, it is important to emphasize that, if the full court were to come to grips with the question whether summary judgment or a remand is the more appropriate avenue for resolution of the statutory issue on this record, we would unanimously agree, at least as to tangible benefits, that the university is not entitled to judgment. Moreover, even if a remand were required, the only practical purpose, according to Judge Belson's analysis, would be to determine whether Georgetown's only motive in denying "University recognition" was to block advocacy; if the motives were mixed — if one of the reasons for the university's discriminatory withholding of recognition was an aversion to homosexual preference or practice — then Judge Belson himself, I gather, would agree the Act has been violated, since the statute bars discrimination if "wholly or partially" based upon "sexual orientation." Id. § 1-2520.
Finally, I understand Judge Belson to agree that if, upon remand, the court were to find that the university's motives were mixed, then the university would have violated the Act by withholding the intangible (status), as well as the tangible (facilities), benefits; he does not join in Judge Mack's reading of the Act that would exclude a requirement of nondiscriminatory, verbal recognition from the reach of the Act. Thus, four of the seven judges on this case (Belson, Nebeker, Ferren, Terry) agree that if Georgetown was motivated, in part, by an aversion to the plaintiff groups' homosexual preference or practice — as Judges Mack, Pryor, Newman, Ferren, and Terry agree it was — then the university's failure to accord recognition status, as well as facilities support, violated the Human Rights Act.
Judge Bacon has made findings of fact indicating mixed motives, and the record supports those findings. Judge Belson, however, does not face up to that reality; inexplicably, he leaves room for the possibility that Georgetown, despite Judge Bacon's findings that augment Judge Braman's, may not have violated the Act. And yet, in shifting to his constitutional analysis, he adopts as a working "premise" what the record and the trial court's findings, at best, establish for the university: that Georgetown denied recognition to the student groups "in large part," but not exclusively, "because of the groups' sponsorship and promotion of ideas and activities." Post at 67. That record-based premise, drawn from sound trial court findings that the university discriminated by reference both to advocacy and to lifestyle, clinches the argument that Georgetown has violated the Act in denying "University recognition." No remand would be necessary to establish that violation.
There is a more general, though fundamental weakness of Judge Belson's analysis — of his unqualified proposition that the Act cannot be construed to forbid the suppression of "speech" or "advocacy." The distinction between discrimination based on advocacy and on status will not work. Part of who a person is, is what he or she says; to deny the right to speak is to deny an essential aspect of one's person. In this sense, therefore, an asserted right to discriminate against someone's advocacy of homosexuality is clearly a claimed right to discriminate against the person on the basis of one's sexual "preference" and thus "sexual orientation." D.C.Code §§ 1-2502(28), -2520(1) (1987).
Assume, however, it is true, as Judge Belson contends, that the Act does not forbid discrimination motivated solely by a desire to prevent the speech activities of a group. Two caveats are in order. First, the means chosen to discriminate against advocacy (here, non-recognition of the plaintiff groups) does not necessarily prove that the underlying motive is merely to prevent the propagation of a repugnant doctrine on campus. The university's action may be directed solely at speech activities (let us assume it is), but that action may still be illegal under the Act if motivated, even in part, by dislike for those
Second, even if the university were motivated solely by a desire to shut down offensive speech activities, the means chosen to counter repugnant speech might nonetheless violate the Act. Even if the Act were construed not to forbid discrimination against homosexual ideas, it unquestionably does forbid discrimination against homosexuals because of their ideas. Discrimination that goes beyond the ideas to the person violates the Act no matter what the motive. See D.C.Code § 1-2532 (1987) (any practice having "effect or consequence" of violating Act is unlawful). Accordingly, even if censorship in this context, when properly motivated, were lawful, an act excluding or degrading a group to accomplish censorship would not be lawful.
As indicated, I believe any effort to distinguish under the Act between legal discrimination against ideas and illegal discrimination against persons fails to take into account that ideas — and advocacy — are an essential part of the person. But even if the distinction could be made, it is not easy to draw, in part because means capable of achieving the former may amount to the latter. I believe Judge Belson has overlooked, both in his analysis and in its application, the possibility that Georgetown's refusal to recognize the plaintiff groups, if only because of an aversion to their advocacy, is likely to be — indeed, inevitably is in the context of a university — an overly broad response that effectively discriminates against persons in violation of the Act.
Because every member of the court, for one reason or another, proceeds to decide the case on the premise that the Human Rights Act has been violated, no more analysis of the Act itself would be useful. I therefore turn to the constitutional issue. As I see it, the Act cannot constitutionally require Georgetown to approve, condemn, or even express its neutrality toward the moral value of homosexuality, but the Act constitutionally may, and does, require that Georgetown tolerate others in the university environment who espouse that moral value; and, given the nature of a university, such toleration presupposes "University recognition" — as I now shall elaborate.
The fundamental question is: whether plaintiffs' request for "University recognition" — meaning full citizenship as student groups at Georgetown University — may be denied, even though in violation of the Human Rights Act, because of Georgetown's first amendment rights. I developed my argument why the answer is "no" — why Georgetown's constitutional defense fails — in the division opinion over two years ago, Gay Rights I, 496 A.2d at 574-82, and I will not repeat it all here. But as to the crucial issue — indeed, the principal conceptualization that divides the court — I want to emphasize again that, on this record, "University recognition" or "endorsement" of the plaintiff student groups does not mean, explicitly or implicitly, a statement of approval — or even of neutrality — toward homosexuality, gay rights, or related matters. Because of the nature of the university, the Human Rights Act in no way compels Georgetown to take a position in violation of its right to free exercise of religious beliefs.
In context — and context is critically important — the Act only requires Georgetown not to discriminate against student groups that wish to express their own views in what I believe we may call, without fear of contradiction, a typical private university marketplace of ideas, which inherently stands for freedom of expression. That marketplace is analogous, for constitutional purposes, to the shopping center in
The Human Rights Act's demands, as they bear on Georgetown University, stand in sharp contrast with laws that have compelled individuals to utter particular speech, Wooley v. Maynard,
There is a recognized constitutional distinction between a requirement that others be permitted to express what are clearly their own ideas in your forum, when you manifestly provide a public forum (PruneYard), and a requirement that you must express the ideas of others (Wooley; Torcaso; Barnette) or must spread, and thus implicitly affirm, those ideas in your own private forum, absent a dissociative statement (Pacific Gas & Electric; Tornillo). For reasons elaborated at division, Gay Rights I, 496 A.2d at 577-82, I believe the PruneYard analysis is controlling here.
Obviously, the Human Rights Act does not get in the way of Georgetown's first amendment right to make any statement it wants to make condemning the views of a group of its own students. But, even more importantly, in officially recognizing the gay rights groups, Georgetown would not, in effect, be forced to make its own position clear by issuing such a responsive statement condemning the gay student groups' aims. In Pacific Gas & Electric and Tornillo, the law had forced conversion of a private forum into a public forum, overriding the prerogatives of the proprietors to restrict communication to agendas and opinions of their own. As a consequence, the proprietors were likely to feel compelled to respond, or to withhold provocative messages altogether, to assure that their audiences would not confuse the proprietors' views with those of anyone
In short, the Human Rights Act requirement that Georgetown officially "recognize" its student gay rights groups does not force the university to "speak" in violation of its free exercise rights.
That should end the matter but for Judge Belson's effort to persuade the court to permit Georgetown to withhold on constitutional grounds even the tangible benefits the student plaintiffs seek.
On appeal, Georgetown has chosen to defend solely on its asserted right to withhold "recognition." Although Georgetown has not conceded that it must provide the narrow set of tangible benefits inherent in "University recognition," supra note 11, the university has not raised a separate defense to compelled provision of the tangible benefits. In fact, in its brief Georgetown characterized the tangible benefits as "relatively insignificant," and at en banc oral argument, as Judge Belson recognizes, post at 69, n. 14, Georgetown specifically disavowed any argument that compelled provision of tangible benefits constituted a forced subsidy of speech which in itself would violate the university's first amendment rights. On appeal, therefore, the university has sought to play down the significance of the tangible benefits and to prevent the court from pinning its constitutional analysis to the denial of tangible benefits that accompanies the denial of "recognition."
Perhaps the university considers such a subsidy legally insignificant because it already is willing to provide some of that
In any event, I believe that both Abood and Pacific Gas & Electric support plaintiffs' right to tangible, as well as intangible benefits. In Abood, the Supreme Court noted that a local union representing public employees may lawfully impose compulsory service fees on non-members whom the union represents in collective bargaining pursuant to an agency shop arrangement, provided that, consistent with the first amendment, such fees may not be used on behalf of any objecting employee for "ideological activities unrelated to collective bargaining," 431 U.S. at 236, 97 S.Ct. at 1800, such as expression of political views or contributions to political candidates. In Pacific Gas & Electric, the Court, relying heavily on Tornillo, held that a state public utilities commission order requiring utility companies to send flyers of a ratepayers' organization to their customers along with the utility bills violated the first amendment, "absent a compelling interest." 475 U.S. at 17, 106 S.Ct. at 912.
Although Abood and Pacific Gas & Electric held that public employees and utility companies, respectively, could not be forced to finance, and thus in effect to sponsor, any idea they found objectionable, the Court was careful to demonstrate the limits on those opinions. In Abood, the Court stressed that financial contributions could be compelled in furtherance of collective bargaining, 431 U.S. at 236, 97 S.Ct. at 1800, even though an "employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role of exclusive representative" — including, for example, "moral or religious views about the desirability of abortion... [which do] not square with the union's policy in negotiating a medical benefits plan." 431 U.S. at 222, 97 S.Ct. at 1793. And in Pacific Gas & Electric, the Court was careful to note that "the Commission's order could be valid if it were a narrowly tailored means of serving a compelling state interest." 475 U.S. at 19, 106 S.Ct. at 193.
As applied to the present case, therefore, Abood and Pacific Gas & Electric would support, not stand in the way of, the constitutionality of plaintiffs' nondiscriminatory access to "University recognition," including tangible benefits from the university. Required recognition with related financial support of student organizations (which, institutionally, are central to university life) is analogous, for purposes of this case, to compelled dues for support of collective bargaining: despite ideological disagreement, an employee is compelled to support collective bargaining, and a university is required to give nondiscriminatory access to student activity benefits, because public policy has put a premium on such bargaining and on such nondiscriminatory student activity programs. Because first amendment interests are implicated, however, the government must have a "compelling state interest," Pacific Gas & Electric, 475 U.S. at 19, 106 S.Ct. at 913, to justify such a premium, and the burden imposed must be "narrowly tailored," id., to achieve the state's objective and must "substantially outweigh whatever burden" is placed on the exercise of first amendment rights. Bob Jones University v. United States,
For reasons elaborated at length earlier, Gay Rights I, 496 A.2d at 575-82, I am satisfied that "the District's expressed interest in eliminating discrimination in educational institutions on the basis of sexual orientation is as `compelling' or `overriding' as it is in the more traditional areas of race and sex." Id. at 576 (citations omitted). In this connection, I agree with Part VI of Judge Newman's concurring opinion. Moreover, "[t]he District of Columbia's interest in enforcing the Human Rights Act's prohibition of discrimination based on sexual orientation `substantially outweighs whatever burden' the Act places on Georgetown's `exercise of [its] religious beliefs.'" Id. at 582 (quoting Bob Jones, 461 U.S. at 604, 103 S.Ct. at 2035). That includes not only the burden of intangible "recognition," as discussed earlier, but also the burden of the tangible benefits of facilities and services which Georgetown has not expressly questioned but which, analytically, present the same issue. Accordingly, I believe the law requires Georgetown University and its Law Center to grant "University recognition," in full, to the Gay People of Georgetown University and to the Gay Rights Coalition of Georgetown University Law Center, respectively.
BELSON, Associate Judge, with whom NEBEKER, Associate Judge, Retired, joins, concurring in part and dissenting in part:
This appeal requires the court to evaluate the constitutional rights of Georgetown University to free speech and the free exercise of religion and the statutory right of certain Georgetown students and their organizations to be free from discrimination based on homosexual orientation. On the basis of the analysis I set forth below, I conclude that, to the extent those rights conflict in the context before us, Georgetown's constitutional rights are paramount. This conclusion results from a balancing of the rights secured by the Constitution against those rights created by the District of Columbia Human Rights Act,
Two aspects of Judge Mack's opinion give rise to my partial disagreement. One relates to procedure. The opinion overlooks the fact that, in granting summary judgment against Georgetown University on the issue of whether it had violated the Human Rights Act, Judge Braman mistakenly concluded that there was no genuine issue as to material facts. In actuality, there were obvious factual issues concerning the university's reasons for withholding recognition from the groups. One central issue was whether the university withheld recognition because of the sexual orientation of the members of the groups, or instead because of the groups' advocacy of homosexual life-styles, conduct inconsistent with religious beliefs to which Georgetown adheres. Judge Mack's opinion, I suggest, compounds Judge Braman's error by going on to make its own findings of fact to support its conclusion that the university's purpose was discriminatory.
My second disagreement with Judge Mack's opinion relates to substantive law.
My disagreement with Judge Ferren's opinion
As Judge Mack's opinion notes, ante at 16, although Georgetown did not appeal from Judge Braman's ruling that it had violated the District of Columbia Human Rights Act in denying recognition to the student groups, we must consider a statutory basis for ruling before undertaking to decide this case on the basis of whether the Constitution requires a certain result. In interpreting the statute, of course, we should attempt to avoid a construction that would bring it into conflict with the Constitution. I would hold that Judge Braman erred in entering summary judgment on the basis that Georgetown had violated the Human Rights Act by discriminating against the student groups.
The first reason that summary judgment on the statutory issue was inappropriate is that GPGU and GRC never asserted, and could not have asserted, that there was no genuine issue concerning facts that control the outcome of their suit. Most important, there was sharp dispute concerning the reason that Georgetown denied recognition to those groups. In their statement of undisputed facts, the student groups set forth the facts that they asserted entitled them to summary judgment, including the fact that Georgetown denied them recognition but, at the same time, granted recognition to a wide range of other cultural and political organizations. At most, such facts may have permitted an inference that Georgetown acted out of discriminatory motives, but such an inference cannot be resolved against Georgetown to form the basis for summary judgment. See Murphy v. Army Distaff Found., Inc.,
Moreover, papers filed by Georgetown in opposition to the motion manifestly precluded summary judgment. Georgetown presented competent, sworn evidence — affidavits from those officials responsible for the decision to deny recognition to GPGU and GRC — that provided more than ample basis for a finding that the university's decision resulted from its determination that the objectives and activities of those groups conflicted with the teachings of the Roman Catholic Church. (R. 346-47, 354-55, 540, 542-44) For example, the affidavit of Timothy S. Healy, President of Georgetown University, included the following explanation for the university's decision to deny recognition to the student groups:
(R. 346) Affiant William C. Schuerman, Assistant Vice-President and Associate Dean for Student Affairs, provided a similar account:
(R. 540) These affidavits would have supported a finding that it was the groups' activities promoting conduct antithetical to Catholic teachings on human sexuality that led Georgetown to deny recognition. Thus, because Judge Braman had before him conflicting facts concerning the central issue in the case, i.e., whether Georgetown had a discriminatory reason for denying recognition to GPGU and GRC, see D.C.Code § 1-2520(1) (1987), Judge Braman erred in granting summary judgment to appellants on the statutory question. See, e.g., Reliance Ins. Co. v. Market Motors, Inc.,
Before completing this discussion of the grant of summary judgment, I acknowledge the possibility that Judge Braman disagreed with a basic premise of my last conclusion, and granted summary judgment to appellants on the mistaken theory that the reasons proffered by Georgetown were themselves discriminatory within the meaning of the Human Rights Act. Because the order granting summary judgment was terse, I turn to the colloquy between court and counsel for an indication of whether this was the court's approach. (R. 857) Although the record is not entirely
The Human Rights Act, by its plain language, does not prohibit discrimination against persons or groups based upon their advocacy. Rather, it prohibits discrimination against persons based upon their "sexual orientation" which, in the words of the statute, "means male or female homosexuality, heterosexuality and bisexuality, by preference or practice." D.C.Code § 1-2502(28) (1987).
As I discuss in Part II, below, a construction of the Act that would prohibit a private actor from differentiating among persons based on their advocacy of ideas would not only be untrue to the Act, it would also abridge the first amendment's guarantees of free speech and, in this case, the free exercise of religion. Judge Mack interprets the Act to prohibit the public and private educational institutions covered by it from engaging in certain types of conduct but, in an attempt to avoid conflict with the first amendment, she construes the Act not to reach the speech activities of a private institution. Judge Mack's opinion, ante at 21. Judge Mack concludes that the Act therefore does not require one private actor to "endorse" another. Id.
I would use a different analysis to determine whether Georgetown's denial of recognition to the student groups falls outside the scope of the Human Rights Act. I interpret the Act to prohibit adverse action taken against persons on the basis of their status as members of a protected class. The Act does not purport to prohibit actions taken against persons because of their promotion of ideas or activities (here, for example, promotion of ideas and conduct antithetical to Catholic teachings). Thus, in my view, if an entity covered by the Act fails to grant facilities and services to an individual because of his or her status as a member of a protected group, the Act is violated. In contrast, if an entity covered by the Act fails to provide facilities and services to an individual because of his or her promotion of ideas or activities, that conduct does not violate the Act. Furthermore, as developed in Part II, below, a construction of the Act that would prevent a private actor from differentiating among others on the basis of the content of their speech would be unconstitutional, at least in the absence of a compelling state interest.
An analogy is illustrative. It could not seriously be suggested that the Human Rights Act could force a private, church-affiliated school to lend its endorsement or subsidy to a group that advocated or purposely facilitated fornication or adultery. Such a group, however, could argue that those activities reflect the group members' heterosexual orientation, an orientation that triggers the Act's protection to the same extent as does homosexual orientation. There can be no doubt that university authorities in such a case could recognize that the purposes and activities of an organization of this type would foster or promote acts that the Church deems immoral. While Catholic doctrine deems all homosexual acts immoral and only some heterosexual acts immoral, the principle is the same. Both this hypothetical group and the groups before us can properly be denied endorsement and subsidy by a religious institution because of their sponsorship and promotion of acts that the institution considers immoral, rather than on the basis of their members' status as homosexuals, heterosexuals, or bisexuals. See Tr. 541 (Georgetown would not subsidize activities of student "playboy" club); Tr. 628-30 (Georgetown would not support group that distributes information about abortion clinics to students).
In its review of Judge Braman's conclusion that the university violated the statute as a matter of law, Judge Mack's opinion is grievously at odds with accepted precepts of summary judgment procedure in that it undertakes a review of the evidence and, in effect, finds as a matter of fact that the "homosexual status of group members entered into Georgetown's assessment of the `purposes and activities' of the student groups, albeit unconsciously." Judge Mack's opinion, ante at 57, 60-61. In reviewing grants of summary judgment, the appellate court reviews the record de novo, but has no more authority to make findings on disputed issues of fact than has the trial court. See Holland v. Hannan,
Normally, where a grant of summary judgment was erroneous because genuine issues exist as to material facts, we should remand for a trial of the disputed facts. Remand to determine whether Georgetown violated the Human Rights Act would be unnecessary here, however, if Judge Bacon's findings upon the trial of the free exercise defense require the conclusion that Georgetown denied the groups recognition for reasons other than the sexual orientation of its members. The determination of this issue is not simple, principally because the trial judge, of course, structured her findings of fact and conclusions of law to deal with the free exercise issue rather than the statutory issue. It is particularly difficult to apply the statutory definition of sexual orientation of an individual, D.C.Code § 1-2502 (28) (1987), to findings made in the free exercise framework and concerning the university's dealings with groups rather than individuals. The result is a degree of ambiguity and lack of focus that counsels against what would be, in effect, a summary judgment in favor of Georgetown. I reach this conclusion even though Judge Bacon made no explicit finding that Georgetown denied recognition because of the sexual orientation of any individuals, and even though I think that the better reading of Judge Bacon's findings is that the primary, if not sole, reason for Georgetown's denial of recognition was that the groups sponsored activities and promoted ideas antithetical to Catholic doctrine. But for the fact that Georgetown should prevail on appeal on
Even if there were a valid finding that Georgetown had violated the Human Rights Act, Georgetown should prevail in this litigation on the basis of its constitutional rights under the free speech and free exercise clauses of the first amendment. I discuss the constitutional issues here on the premise that Georgetown denied recognition to the student groups at least in large part because of the groups' sponsorship and promotion of ideas and activities.
Georgetown has a free speech defense based on its right not to endorse or subsidize the groups' promotion of ideas and activities with which it disagrees.
Georgetown's free speech defense is not dependent on its status as a Catholic institution. No private actor ordinarily can be compelled to subsidize speech with which it disagrees. The Supreme Court has recognized this principle in a long line of cases. Most recently, in Pacific Gas & Electric Co. v. Public Utilities Commission,
Similarly, in Abood v. Detroit Board of Education,
The principle that a private individual cannot be forced either to endorse or to subsidize a view with which he or she disagrees is long-established first amendment doctrine. The Supreme Court unmistakably ruled out such endorsements in West Virginia State Board of Education v. Barnette,
Although Judge Mack's opinion discusses many of the Supreme Court cases that hold that the government cannot compel a private institution to support speech with which it disagrees, the opinion backs away from the implications of this line of authority as it relates to the case at hand. It is clear that, for the same reason the Detroit Board of Education or the California Public Utilities Commission cannot constitutionally compel private citizens or corporations to fund the dissemination of views they oppose, the District of Columbia Council cannot require a private university, such as Georgetown, to subsidize the speech of student groups whose speech is contrary to the university's religious creed.
Judge Ferren's opinion falters over the same issue, but for a different reason. It first takes the view that the activities of the homosexual student groups here are the analogue of the matters relating to collective bargaining discussed in Abood. It goes on to argue that public policy has placed a comparable premium on both collective bargaining and non-discriminatory treatment. This, I submit, is not the relevant comparison. Rather, it is relevant to compare collective bargaining, the means of settling labor-management disputes long preferred in the nation's laws and policies, with the advocacy of a homosexual life-style. Collective bargaining is a broad process that a worker can be required to support even though the worker may have a moral objection to one aspect of the union's multifaceted bargaining position, e.g., medical benefits covering abortions. To be required to support such a process differs from being required to support a group whose organizing principle is the advocacy of a homosexual life-style incompatible with one's religious beliefs. It would be, at the least, far-fetched to argue that such advocacy enjoys a status or plays a role remotely comparable to that of collective bargaining in the affairs of our city or nation. Rather, it is obvious that the student groups' activities are more analogous to the promotion of political views to which, under Abood, workers cannot be forced to contribute.
The Supreme Court's decision in Prune-Yard Shopping Center v. Robins,
The burden on Georgetown, if it is required to endorse and subsidize the speech of the student groups, is substantially greater than that on the shopping center owner in PruneYard. Several significant differences in their relative burdens arise directly from the fact that Georgetown is a religiously-affiliated university. First, since shopping centers do not normally endorse particular views, it is unlikely that any endorsement of the diverse views of the persons distributing pamphlets would be attributed to the shopping center owner. An apprehension on the part of Georgetown, as a university affiliated with the
In addition to its free speech rights, Georgetown's free exercise rights would also be infringed if it were required to subsidize ideas or activities that are contrary to Catholic doctrine. This defense applies with full force not only to the speech-related activity of the groups, but also to all other activities of the groups that are antithetical to Catholic doctrine. It was to this defense that Judge Bacon directed her findings of fact and conclusions of law, and they fully support her ruling in favor of Georgetown.
The leading Supreme Court case invoking this principle is United States v. Lee,
It has long been part of this country's first amendment jurisprudence that an individual cannot be compelled to fund the dissemination of religious views of others. James Madison, a drafter of the first amendment, wrote: "Who does not see ... [t]hat the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?" J. MADISON, MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS, reprinted in Everson v. Board of Education,
Since Georgetown is a private, Catholic-affiliated institution and since the promotion of homosexuality is incompatible with Catholic doctrine, it would infringe Georgetown's right to the free exercise of religion if it were required to subsidize student groups that foster and promote a homosexual life-style. Georgetown's interest in not being compelled to subsidize activities antithetical to Catholicism must be given great weight under our Constitution. See Barnette, supra, 319 U.S. at 633, 642, 646, 63 S.Ct. at 1187, 1189 (Murphy, J., concurring).
It can be argued that Georgetown's free speech and free exercise defenses are absolute and not subject to balancing with any countervailing state interests. See Tornillo, supra, 418 U.S. at 256, 94 S.Ct. at 2839 (statute compelling newspapers to print replies to editorials is unconstitutional; no balancing test used); see also Barnette, supra, 319 U.S. at 642, 63 S.Ct. at 1187 (grave and immediate danger necessary before first amendment freedoms may be infringed). Because other Supreme Court precedents apply balancing tests to determine whether a first amendment burden is unconstitutional, however, I will proceed to such a balancing here as well. Under this approach, a violation of Georgetown's free speech and free exercise rights would be justified only if it is essential to accomplish an overriding governmental interest. Hobbie v. Unemployment Appeals Comm'n, ___ U.S. ___, 107 S.Ct. 1046, 1049, 94 L.Ed.2d 190 (1987); Lee, supra, 455 U.S. at 257-58, 102 S.Ct. at 1055; Thomas v. Review Bd.,
In evaluating the District of Columbia's governmental interest in eradicating discrimination based on sexual orientation, it is appropriate to give great weight to the judgment of the District of Columbia Council. The Council identified and proscribed a number of bases for discrimination. The Human Rights Act forbids an educational institution from discriminating
D.C.Code § 1-2520 (1987). While neither the statutory language nor its legislative history indicates whether the Council intended to assign any hierarchy to the several proscribed bases for discrimination, it is reasonable to postulate that it did not intend them to be equal. One must doubt, for example, that the eradication of discrimination based upon source of income or personal appearance was meant to be as compelling an interest as the eradication of discrimination based upon race.
In any event, it cannot be said that the goal of eliminating discrimination on the basis of sexual orientation, as undesirable as such discrimination may be, has attained the same high priority as public policy, in the District of Columbia or nationally, as has the goal of eliminating racial discrimination. This difference of emphasis is manifested in many ways. One is the equal protection clause jurisprudence of the United States Supreme Court. Under it, for example, a racial classification leading to different treatment has been identified as one that demands strict scrutiny — but no such scrutiny has been demanded of sexual orientation discrimination. See Padula v. Webster, 261 U.S.App.D.C. 365,
Needless to say, the act of a state legislature, or of the District of Columbia Council, in identifying a governmental interest and adopting legislation to serve it, cannot, of itself, establish that the interest is so compelling as to override competing constitutional rights.
Weighing the District of Columbia's interest in eradicating sexual orientation discrimination, I observe too that not every application of that interest is equally compelling. Indeed, in deciding what weight to assign to that interest, the most pertinent question is not simply whether the District's interest in proscribing sexual orientation discrimination is, in the abstract, compelling. Rather, it is how important this application of the Human Rights Act is to the accomplishment of that interest. Cf. United States v. Robel,
On the other side of the balance, Georgetown is claiming constitutional rather than statutory rights, and they are the fundamental rights of freedom of speech and the free exercise of religion. Moreover, the burden on Georgetown would be direct compulsion, i.e., an injunction ordering the university to violate its religious beliefs.
In sum, the facts of this case did not justify the entry of summary judgment that Georgetown had violated the Human Rights Act with respect to homosexual students at Georgetown. Instead, this case represents an attempt by the appellant groups to use the coercive power of the government to compel a private university to endorse and subsidize their cause, the fostering and promotion of homosexual life-styles, a cause which Georgetown University has found incompatible with the Catholic doctrine to which it adheres. Since I believe that the best way to protect the legal rights of homosexuals is to protect the constitutional rights of all persons, including those institutions and individuals who, for religious reasons, disapprove of homosexual practices, I would affirm.
TERRY, Associate Judge, concurring in part and dissenting in part:
Although I agree with a considerable part of what Judge Mack has written in her opinion — especially in part III-D, ante at 26-30 — I cannot join in that opinion because it does not go far enough. I see no meaningful difference between the tangible and intangible benefits which these appellants are seeking from the university. To sustain the granting of the former without the latter would be, as Judge Ferren suggests, a regression to the unlamented days of "separate but equal" access to public facilities. I am not willing to give the appellants only half a loaf when they are entitled to a whole one.
Furthermore, I find no basis in the record for concluding that "University Recognition"
I would therefore hold that the Human Rights Act requires Georgetown to grant to these appellants "University Recognition" as well as tangible benefits; accordingly, I join in Judge Ferren's separate opinion. I also join in part VI of Judge Newman's opinion.
NEBEKER, Associate Judge, Retired, concurring in part and dissenting in part:
I join Judge Belson's thoughtful opinion. Today the court uses the state's power to force a religious body, contrary to its basic tenets, to provide services and facilities to those who advocate and proselytize abnormal and criminal sexual practices. See D.C.Code § 22-3502 (1981); Bowers v. Hardwick,
Judge Belson's analysis respecting a balancing between the "sexual orientation" right expressed in the District of Columbia Human Rights Act and the first amendment assertions of Georgetown (ante at 72-74) prompts me to add an additional observation. If, as he assumes, a balancing test is appropriate, or if no balancing of interests is needed at all, it is important to recognize that the homosexual orientation, as defined by one's sexual practice (see D.C.Code § 1-2502(28) (1987)), at issue here has a stark inconsistency with established criminal law. The conduct inherent in homosexual "life-style" is felonious. Id. Accordingly, I find no factor favoring a state interest under the Act which can be balanced against Georgetown's rights. Indeed, there is every reason in law to hold absolute Georgetown's first amendment rights.
One has but to look at three of the record exhibits, which are attached, to see how intrusive our holding is on asserted and clear first amendment protections. These exhibits were produced by plaintiff, Gay People, on demand by the defendants for documents. They are examples of propaganda used to announce dances and gatherings (one for the "benefit for gay people of Georgetown University") in the Washington, D.C. area. They are also examples of the sort of promotion the court's holding would require a religiously affiliated university to subsidize. One might ask whether by our holding a student group dedicated to heterosexual relations with girls under the age of sixteen would likewise derive "sexual orientation" benefits under the Act in the face of first amendment assertions.
Surely this court's holding against Georgetown University raises first amendment issues warranting closest review by the ultimate adjudicators of the meaning of these most important provisions.
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