GAY RIGHTS COALITION v. GEORGETOWN UNIV.
536 A.2d 1 (1987)
District of Columbia Court of Appeals.
Argued en banc October 16, 1985.
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.16 Nor can such an enactment, of its own force, give each identified interest the same stature as the goal of eliminating racial discrimination. In the end, the judiciary must complete the task of determining whether a particular governmental policy is sufficiently compelling to override a claimed constitutional right. See, e.g., Bd. of Dir. of Rotary Int'l v. Rotary Club of Duarte, ___ U.S. ___, 107 S.Ct. 1940, 1947, 95 L.Ed.2d 474 (1987) (state's interest in eliminating discrimination against women compelling despite slight infringement on expressive association right of service club members); Roberts v. United States Jaycees,468 U.S. 609, 624, 104 S.Ct. 3244, 3253, 82 L.Ed.2d 462 (1984) (same); Thomas, supra, 450 U.S. at 709, 718-19, 107 S.Ct. at 1427, 1432 (Indiana's interest in fiscal soundness of unemployment compensation scheme not sufficiently compelling to justify denying unemployment compensation to Jehovah's Witness who left job to avoid participation in manufacture of military tanks); Yoder, supra, 406 U.S. at 221, 233-34, 92 S.Ct. at 1536, 1542 (state's interest in compulsory education system not sufficiently compelling to justify infringement of free exercise rights of Amish). In doing so here, the court must accord substantial weight to the Council's determination of the importance of the governmental interest in eliminating discrimination based upon sexual orientation. 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,389 U.S. 258, 263, 88 S.Ct. 419, 423, 19 L.Ed.2d 508 (1967) ("the phrase `war power' cannot be invoked as a talismanic incantation to support any exercise of congressional power which can be brought within its ambit"). Therefore, in weighing the competing interests involved, one can consider that in addition to endorsement petitioners are seeking only the tangible benefits of a mailbox, mailing services, and computer labeling services, and also the right to apply for university funds. This case does not involve denial of fundamental aspects of higher education such as admission to the university, course selection, or use by a student of the physical facilities of the university.17 Nor does it involve such deprivations as discriminatory discharge from employment or exclusion from a place of public accommodation based on sexual orientation, the elimination of which may well be compelling.18 Indeed,
Georgetown permits these student organizations to conduct their activities without hinderance, merely requiring that they do so without university subsidization or endorsement. On this point, Judge Bacon found that "the interests of Georgetown students in gay issues and their needs can be served without `university recognition' of the plaintiff organizations." (R. 1693) She noted specifically that "[w]ithout `university recognition,' clubs may be formed, meetings may be held on campus and application may be made for lecture funds." Id.
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.19 Therefore, upon considering the constitutional issues and balancing the opposing interests, I would find the District's interest in preventing the asserted sexual orientation discrimination regarding endorsement and limited tangible benefits is outweighed by Georgetown's interest in not endorsing and subsidizing activities and an ideological message repugnant to its religious creed. This is the conclusion Judge Bacon reached upon weighing Georgetown's free exercise rights against the statutory right of petitioners to receive the benefits in question. That decision is supported by the record and by the applicable case law.
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"
includes, even by implication, any kind of "endorsement" of the views and activities of its recipients. Anyone who considers that "University Recognition" is simultaneously granted to "such diverse bodies as the Jewish Students Association, the Organization of Arab Students, the Young Americans for Freedom, and the Democratic Socialist Organizing Committee," groups which "occupy a broad range of the political, social and philosophical spectrum," ante at 17, cannot rationally conclude that the university is somehow "endorsing" the goals of any group on which it bestows such "recognition." If the university believes this is not self-evident, it may accompany any grant of "University Recognition" with a public statement of its position, but it may not withhold "recognition" on grounds which are forbidden by law, such as sexual orientation. The university's violation of the Human Rights Act is clear. Because the Act does not compel it to "endorse" anything, and because "University Recognition" does not constitute an "endorsement," its free exercise defense is unavailing. See Bob Jones University v. United States,461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983).