GAY RIGHTS COALITION v. GEORGETOWN UNIV.
536 A.2d 1 (1987)
District of Columbia Court of Appeals.
Argued en banc October 16, 1985.
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,478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986). See generally Cain v. United States,532 A.2d 1001 (D.C.1987).
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.
[Image in original not included.]