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GAY RIGHTS COALITION v. GEORGETOWN UNIV.
536 A.2d 1 (1987)
District of Columbia Court of Appeals.
Argued en banc October 16, 1985.
(a) use University facilities; (b) apply for lecture fund privileges; (c) receive financial counseling from the SAC comptroller; (d) use campus advertising; and (e) petition to receive assistance from Student Government. Id. at 2-3. "University Recognition" entitles a group to four additional benefits. They may (f) use a mailbox in the SAC office and request one in Hoya Station;
* Judge Nebeker was an Associate Judge of this court at the time of argument. His status changed to Associate Judge, Retired, on September 1, 1987. 1. D.C.Code § 1-2520 (1987) provides:
It is an unlawful discriminatory practice... for an educational institution: (1) To deny, restrict, or to abridge or condition the use of, or access to, any of its facilities and services to any person otherwise qualified, wholly or partially, for a discriminatory reason, based upon the race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, political affiliation, source of income or physical handicap of any individual.... [Emphasis added.] Section 1-2501 provides: It is the intent of the Council of the District of Columbia, in enacting this chapter, to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of [various characteristics including sexual orientation]. Section 1-2502 (28) provides: "Sexual orientation" means male or female homosexuality, heterosexuality and bisexuality, by preference or practice. 2. Chief Judge Pryor and Judges Mack, Newman, Belson and Nebeker agree that the Human Rights Act does not require Georgetown to grant its particular form of "University Recognition" to the student groups. On that issue, the trial court's judgment is affirmed. However, Chief Judge Pryor and Judges Mack, Newman, Ferren and Terry conclude that the District of Columbia's compelling interest in the eradication of sexual orientation discrimination requires Georgetown, despite its religious objection, to obey the Human Rights Act's mandate that the University provide equal tangible benefits to the student groups. On that issue, the trial court's judgment is reversed. 3. The Society of Jesus was founded in 1534 by St. Ignatius of Loyola. Since then it has become a major religious order stationed in all parts of the world. In this country, since the 18th century, it has been principally engaged in education. See generally J. AVELING, THE JESUITS (1982); T. CAMPBELL, THE JESUITS: 1534-1921 (1977). 4. In a section headed "Religion and Ethical Norms," the Faculty Handbook states:
While Georgetown University is operated under Catholic auspices, there is no regulation which requires all members of the Faculty to be members of the Catholic faith. A Faculty member is expected to maintain a standard of life and conduct consistent with the philosophy and objectives of the University. Accordingly, the integrity of the University requires that all Faculty members shall maintain a sympathetic attitude towards Catholic beliefs and practices, and shall make a sincere effort to appreciate such beliefs and practices. Members of the Faculty who are Catholics are expected to set a good example by the regular practice of Catholic duties. Id. at 12-13. 5. The purposes of GPGU are:
(1) Supportive To provide an atmosphere in which gay people can develop a sense of pride, self-worth, awareness and community. (2) Educational To provide information and encourage understanding and dialogue between gay and non-gay people. (3) Developmental To provide a forum for the development of responsible sexual ethics consonant with one's personal beliefs. (4) Social To establish a program of activities which reflect the above purposes. GPGU Constitution (emphasis added). Membership, regardless of sexual orientation, is open to students, faculty, staff members and alumni. 6. The purposes of GRC are to:
(1) Foster discussion and research on the effect of law on lesbians and gay men in such areas as: a. criminal law b. family law c. immigration law d. military and national security law e. labor and employment law f. free speech and association g. rights of gay students. (2) Provide lesbians and gay men entering the Law Center with information about Washington's gay community, including educational, cultural, religious, social and medical services. (3) Disseminate information on the existence of pro bono work opportunities in the area of gay rights. (4) Cooperate with other gay law student organizations in areas of gay rights law. (5) Offer speakers and seminars on gay legal issues appropriate for the Law Center and the legal community. GRC Constitution (emphasis added in paragraph (2)). 7. Only one item of this description is contained in the record. It is entitled "A Draft Statement of the Educational Goals and Objectives of the Main Campus" and was prepared in September 1978 by the Office of the Executive Vice President for Academic Affairs. In six pages of single-spaced typeface, it notes that "Georgetown, by virtue of its Catholic and Jesuit origins, has a special and richly informed view of reality, one that celebrates human dignity in a Godly context." Id. at 1. The statement stresses the value of a liberal education in light of the "Georgetown ideal [of] the education of the whole person." Id. Among the essentials of a Jesuit liberal education, "[t]heological reflection and religious practice are encouraged and given priority." Id. at 3. 8. According to "What Your Club Needs To Know," the criteria in force during that academic year, a "Student Government Charter" granted a group "official recognition as a legitimate activity of the student body." Id. at 3. The term "Student Government Charter" does not appear in "Recognition Criteria," but essentially the same attributes are contained in "Student Body Endorsement." 9. Although Dean Schuerman did not expressly say so, the student groups, the University and the trial court all treated his letter as a denial of "University Recognition." 10. In other words, Dean Schuerman claimed that the University's position allowed GPGU to achieve most, if not all, of the purposes set forth in its constitution. See GPGU Constitution (quoted supra note 5). 11. Shortly afterwards, a substantial majority at a Law Center faculty meeting voted to endorse CSFL's approval of GRC's petition for "recognition." 12. Georgetown also counterclaimed to prevent the student groups from using the words "Georgetown University" in their names. It has not appealed from the trial court's dismissal of the counterclaim. That issue is not before us and Judge Mack expresses no opinion, expressly or impliedly, thereupon. 13. While none of the parties has raised this issue, amicus Arthur B. Spitzer argues forcefully that Judge Braman misconstrued the Human Rights Act. We cannot ignore the argument of an amicus curiae on this potentially dispositive issue. Capital Cities Cable, Inc. v. Crisp,467 U.S. 691, 697, 104 S.Ct. 2694, 2699, 81 L.Ed.2d 580 (1984); Fry v. United States,421 U.S. 542, 545 n. 5, 95 S.Ct. 1792, 1794-95 n. 5, 44 L.Ed.2d 363 (1975). Avoidance of the constitutional issue by the correct statutory interpretation would be the appropriate course even if it had not been briefed, United States v. Albertini, supra, 472 U.S. at 679-80, 105 S.Ct. at 2902; United States v. Grace,461 U.S. 171, 175-76, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983), or if it had never been considered by the lower court, Capital Cities Cable, Inc. v. Crisp, supra, 467 U.S. at 697, 104 S.Ct. at 2699; United States v. Clark,445 U.S. 23, 27-28, 100 S.Ct. 895, 899-900, 63 L.Ed.2d 171 (1980). 14. An appellate court cannot select its facts. It deals with concrete cases and the facts found by the trial court set the limits of its decision. Here, a critical fact is the trial court's finding that Georgetown's particular scheme of "University Recognition" includes an institutional "endorsement" of the recipient student group. Judge Ferren accepts that factual finding but ignores its First Amendment implications. Post at 112-15 & 129 note 15. Judge Terry, on the other hand, appears to agree with the entire court except Judge Ferren that the Human Rights Act requires no "endorsement." Post at 166-67. 15. A public university may not impose content-based restrictions on speech, and it may not use its student body recognition process to comment upon the rightness or wrongness of homosexual conduct. Healy v. James,408 U.S. 169, 180-84, 92 S.Ct. 2338, 2345-47, 33 L.Ed.2d 266 (1972); see also, e.g., Gay Student Services v. Texas A & M University,737 F.2d 1317, 1326-30 (5th Cir.1984), cert. denied and appeal dismissed, 471 U.S. 1001, 105 S.Ct. 1860, 85 L.Ed.2d 155 (1985); Gay Lib v. University of Missouri,558 F.2d 848, 852-57 (8th Cir.1977); Gay Alliance of Students v. Matthews,544 F.2d 162, 164-67 (4th Cir.1976); Gay Students Organization of the University of New Hampshire v. Bonner,509 F.2d 652, 657-62 (1st Cir.1974); Gay Activists Alliance v. Board of Regents of the University of Oklahoma,638 P.2d 1116, 1119-23 (Okla.1981). A private university, such as Georgetown, is under no such constitutional restrictions. See, e.g., Williams v. Howard University, 174 U.S.App.D.C. 85, 87, 528 F.2d 658, 660, cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed. 2d 123 (1976); Greenya v. George Washington University, 167 U.S. App.D.C. 379, 382-85, 512 F.2d 556, 559-62, cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975); Spark v. Catholic University of America, 167 U.S.App.D.C. 56, 80-81, 510 F.2d 1277, 1281-82 (1975); cf. Cover, The Supreme Court 1982 Term — Foreword: Nomos and Narrative, 97 HARV.L.REV. 4 (1983) (discussing obligation of courts to fully justify forced imposition of legal norms that threaten autonomy of cultural communities committed to alternative moral visions of society). 16. At no stage of this litigation have the parties requested that the "endorsement" and the tangible benefits be treated separately. The case has been litigated throughout on an "all or nothing" basis. The student groups nevertheless insist that they demand only equal tangible benefits and are unconcerned about the University's "endorsement." In the words of the District of Columbia: "The gay students and their associations do not ask for more than equal access to the incidental facilities and services which the trial court found had been discriminatorily denied; they do not seek university approval. ... [T]hey would be fully satisfied if the university permits equal access to the incidental privileges without university `recognition.'" Supplemental Brief at 3 (emphasis in original). On the other hand, it is towards a compelled "endorsement" that Georgetown's religious objection is directed. 17. The First Amendment provides, in relevant part: "Congress shall make no law ... prohibiting the free exercise [of religion]; or abridging the freedom of speech...." U.S. CONST. amend. I. 18. As early as 1813, one court at least partly anticipated the Supreme Court's distinction between religiously motivated actions and the underlying beliefs or the expression of those beliefs. Departing from the English common law, a New York court held that the state constitution protected a Roman Catholic priest against compulsion to reveal in testimony confidences he had received in the confessional. People v. Philips (N.Y.Ct.Gen.Sess. June 14, 1813), reported in W. SAMPSON, THE CATHOLIC QUESTION IN AMERICA (New York 1813 and photo. reprint 1974). The court relied upon the First Amendment, as well as the state constitution, even though it was not until 1940 that the Supreme Court made the federal free exercise guarantee directly applicable to the states through the Fourteenth Amendment. See Cantwell v. Connecticut,310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). The Philips court held: "Although we differ from the witness and his brethren, in our religious creed... [t]hey are protected by the laws and constitution of this country, in the full and free exercise of their religion, and this court can never countenance or authorize the application of insult to their faith, or of torture to their consciences." W. SAMPSON, supra, at 114. 19. In one unspoken respect, Pacific Gas & Electric differs from the Barnette/Wooley line of cases upon which it relied. The Pacific Gas & Electric plurality, having found a burden on the utility's speech, held that the government regulation could still be valid "if it were a narrowly tailored means of serving a compelling state interest," 106 S.Ct. at 913, but found no such interest present in that case. In Barnette/Wooley, as we have seen, the protection against compelled speech was absolute. The cases may be reconciled, however, by focusing on three factors, each of which puts Georgetown factually closer to Barnette/Wooley than to Pacific Gas & Electric.First, no "endorsement" was threatened in Pacific Gas & Electric. The utility was required to act as a vehicle for the views of another, but not to express its approval or tolerance of them. 106 S.Ct. at 907, 911 n. 11. Thus, the burden on the utility's First Amendment rights was of a degree considerably less intrusive than it is here. See id. at 915 (Marshall, J., concurring); id. at 917-20 (Rehnquist, J., joined by White and Stevens, JJ., dissenting); id. at 922-24 (Stevens, J., dissenting). Second, although we express no view as to the constitutional significance of this distinction, no religious objections were at issue in Pacific Gas & Electric, so that the Free Exercise Clause was not implicated as it would be here by the trial court's construction of the Human Rights Act. Id. at 908-10. Finally, the Pacific Gas & Electric Court was divided as to the legal weight to be attached to the utility's commercial nature. Compare id. at 909, 912 (plurality opinion) with id. at 917 (Marshall, J., concurring); id. at 920-22 (Rehnquist, J., dissenting); id. at 922-24 (Stevens, J., dissenting). We believe that Georgetown, as a private, religiously affiliated university, whose existence is devoted to the generation of ideas rather than profit, has an interest considerably greater than that of a public utility in not being forced to publicly embrace moral positions with which it disagrees. Cf. Miami Herald Publishing Co. v. Tornillo, supra,418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (no balancing test applied in striking down right-of-reply statute burdening newspaper's First Amendment rights). This is not a question of government regulating speech by a business corporation, as in Pacific Gas & Electric, but of imposing official orthodoxy on controversial issues of religious, moral, ethical and philosophical importance, upon an entity whose role is to inquire into such matters. The First Amendment not only ensures that questions on difficult social topics will be asked, it also forbids government from dictating the answers. Georgetown is accordingly shielded from a threatened "endorsement" by the absolute protection of Barnette/Wooley, rather than by the qualified protection of Pacific Gas & Electric. Cf. Harpaz, Justice Jackson's Flag Salute Legacy: The Supreme Court Struggles to Protect Intellectual Individualism, 64 TEXAS L.REV. 817, 902-12 (1986) (first tier of proposed two-tiered analysis of compelled expression cases concerns those "in which government compulsion creates a serious risk of forced conformity to government-favored ideas" by directly requiring individuals "to engage in speech against their will"; in such cases, no government justification would suffice if its "purpose is to encourage a particular idea"). 20. The Human Rights Act does, of course, guarantee equal status apart from that conferred by compelled expression. In this case, the student groups would be entitled to "University Recognition," regardless of sexual orientation, if that status did not include an unwilling "endorsement." 21. Georgetown does not contend that the tangible benefits constitute a forced subsidy of speech to which it is opposed. See, e.g., Abood v. Detroit Board of Education,431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). Judge Belson, joined by Judge Nebeker, therefore argues an issue that it is not before us. Post at 67-72 & note 14; see also Judge Ferren, joined by Judge Terry, post at 51-52 & 67 note 9. Even if it were presented, Abood nowhere stands for the proposition that forced subsidization is always unconstitutional. That case concerned the unwilling subsidization of offensive speech. The student groups here engage in a wide range of activities and on the record before us we have no knowledge what proportion of those endeavours, if any, is devoted to advocacy of the specific theory of sexual ethics to which Georgetown objects. Even if Abood applied, it would mean at most that the tangible benefits could be withheld up to that undetermined extent only.
Similarly, the unfounded assumption that the student groups are exclusively engaged in advocacy of the idea which Georgetown finds repugnant blinds Judge Belson and Judge Nebeker to the existence of Georgetown's sexual orientation discrimination. Along with amicus Arthur B. Spitzer, they fail to recognize unambiguous signs, discussed in the text, that Georgetown took the predominantly homosexual composition of the student groups into account in denying them tangible benefits. Contrary to the views of Judge Belson and Judge Nebeker, Georgetown's simultaneous objection to an idea it finds morally offensive is not enough to relieve it from a finding of discrimination under the Human Rights Act. 22. See D.C.Code § 1-2503(b) (1987) (permitting religious or political organizations, in order to promote their religious or political principles, to give preference to persons of the same religious or political persuasion); see also id. § 1-2503(a) ("business necessity" exception in cases of unintentional discrimination); id. § 1-2513(a) (exception in employment practices for bona fide seniority or employment benefit systems); id. § 1-2513(b) (exception in police officer and firefighter cadet programs for minimum and maximum age limits); id. § 1-2518 (exception in rental or leasing practices for owner-occupied accommodations); id. § 1-2521(a) (exception in education practices for single-sex schools below graduate level); id. § 1-2524 (exception for approved affirmative action plans). 23. The student groups contend, on the one hand, that Georgetown functions as a secular educational institution and meets none of the established criteria for religious education which would permit it to invoke the Free Exercise Clause. We disagree. Tilton v. Richardson,403 U.S. 672, 687, 91 S.Ct. 2091, 2100, 29 L.Ed.2d 790 (1971) (institution may have both secular and sectarian characteristics); see also L. TRIBE, AMERICAN CONSTITUTIONAL. LAW §§ 14-6, -7 (1978) (definition of religion more liberal under Free Exercise Clause than under Establishment Clause); Note, Towards a Constitutional Definition of Religion, 91 HARV.L.REV. 1056, 1083-89 (1978) (same). On the other hand, they argue that Georgetown is barred from asserting its free exercise defense by the Establishment Clause of the First Amendment. Again, we disagree. Granfield v. Catholic University of America, 174 U.S.App.D.C. 183, 191-93, 530 F.2d 1035, 1043-45 (no standing to assert Establishment Clause claim when seeking only "incomplete and transitory enforcement of the prohibitions of the clause" and without making the responsible government official party to the litigation), cert. denied, 429 U.S. 821, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976). We also reject the student groups' contention that the University's acceptance of certain federal funding on condition that it not be used for "religious worship or a sectarian activity," 20 U.S.C. § 1132e(c) (1982), operates as a waiver of its right to raise a free exercise defense. Murphy v. Villanova University,547 F.Supp. 512, 520-21 (E.D.Pa.1982), aff'd, 707 F.2d 1402 (3d Cir.1983) (no standing to sue for breach of federal statute in absence of private cause of action); California v. Sierra Club,451 U.S. 287, 292-93, 101 S.Ct. 1775, 1778-79, 68 L.Ed.2d 101 (1981) (setting forth standards for implying private cause of action under federal statute). 24. Since the District of Columbia's pioneering legislation in this area, similar statutory protections have been enacted in 1982 by the State of Wisconsin. See codification in scattered sections of WIS.STAT.ANN. (listed in West General Index 1986 under "Discrimination — sexual orientation"). Many other states have executive orders prohibiting sexual orientation discrimination in public employment. In addition, a considerable and growing number of cities and counties nationwide have some form of gay rights ordinance. See generally NATIONAL GAY TASK FORCE, GAY RIGHTS PROTECTIONS IN THE UNITED STATES AND CANADA (1985). This mounting response to the problems gay people face may be compared to the local antidiscrimination measures which paved the way for the federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1982). See generally, e.g., Rosen, The Law and Racial Discrimination in Employment, 53 CALIF. L.REV. 729, 775-76 (1965); Sutin, The Experience of State Fair Employment Commissions — A Comparative Study, 18 VAND.L.REV. 965 (1965); cf. New York State Ice Co. v. Liebmann,285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country"). 25. Judge Bacon erred in holding that only a "national" policy against discrimination based on sexual orientation could constitute a compelling governmental interest. See Roberts v. United States Jaycees, supra,468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (state law against sex discrimination, more extensive than its federal counterpart, furthered compelling governmental interest and outweighed First Amendment burden); Braunfeld, supra,366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (state Sunday closing law furthered compelling governmental interest and outweighed First Amendment burden); Prince v. Massachusetts, supra,321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.2d 645 (state child labor law furthered compelling governmental interest and outweighed First Amendment burden); see also District of Columbia v. John R. Thompson Co.,346 U.S. 100, 109, 73 S.Ct. 1007, 1012, 97 L.Ed. 1480 (1953) (District of Columbia has same power as state to enact "legislation which prohibits discrimination"); cf. Whalen v. Roe,429 U.S. 589, 597, 97 S.Ct. 869, 875, 51 L.Ed.2d 64 (1977) ("we have frequently recognized that individual states have broad latitude in experimenting with possible solutions to problems of vital local concern"). 1. Similarly, in Gillette v. United States,401 U.S. 437, 461-62, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971), the Court refused to extend the Selective Service Act's conscientious objector exemption to those who espoused a religious objection not to "war in any form" but only to particular wars. 2. D.C.Code § 1-2503(b) (1981) provides:
Nothing contained in the provisions of this chapter shall be construed to bar any religious or political organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious or political organization, from limiting employment, or sales, or rental of housing accommodations, or admission to or giving preference to persons of the same religion or political persuasion as is calculated by such organization to promote the religious or political principles for which it is established or maintained. 3. See note 2, supra. 4. Some commentators suggest that the least restrictive means/compelling interest assessment is a single inquiry. See Note, Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities, 90 YALE L.J. 350, 359 n. 55 (1980). Others caution against equating the state's interest in denying an exemption to a religious objector with its generalized interest in maintaining the underlying rule or program, L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-10, at 855 (1978). 5. Arguably, given the court's construction of the Act, there has been no infringement of a religious interest in this case. I am willing to assume, however, with the lead opinion, see lead op. at 31-32, that the University has met the threshold requirements for bringing a free exercise claim. See Tony & Susan Alamo Foundation v. Secretary of Labor,471 U.S. 290, 303, 105 S.Ct. 1953, 1963, 85 L.Ed.2d 278 (1985); Lee, supra, 455 U.S. at 256-57, 102 S.Ct. at 1055. 1. As I understand the plethora of opinions in this case, five judges agree that the free exercise clause of the first amendment does not stand in the way of a Human Rights Act requirement that Georgetown permit the plaintiff gay rights groups to use university facilities — the so-called tangible benefits — on the same basis that other University-recognized groups are permitted to do so. Two judges would hold that the Act, unhindered by the Constitution, requires Georgetown to grant the plaintiffs complete "University recognition," i.e., not only the tangible benefits but also the intangible benefits of a status equal to that of other officially recognized student groups. Finally, as I understand the record and the opinions in this case, the plaintiff groups are not legally barred from using the university's name. See infra note 3. 2. When parties have not raised a statutory issue or a court of appeals has not passed upon it, the Supreme Court has commonly addressed the issue to "`ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.'" United States v. Grace,461 U.S. 171, 175-76, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983) (quoting Crowell v. Benson,285 U.S. 22, 62, 52 S.Ct. 285, 297, 76 L.Ed. 598 (1932)). Almost invariably, however, the Court has asked the parties to brief the statutory issue. See, e.g., United States v. Albertini,472 U.S. 675, 679-80, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985); Capitol Cities Cable, Inc. v. Crisp,467 U.S. 691, 697-98, 104 S.Ct. 2694, 2699, 81 L.Ed.2d 580 (1984); University of California Regents v. Bakke,438 U.S. 265, 281, 98 S.Ct. 2733, 2743, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.). But see Grace, 461 U.S. at 176, 103 S.Ct. at 1706 (statutory issue apparently raised for first time at oral argument but that did not resolve case and Court reached constitutional issues). In the present case, the only brief we have on the statutory issue supporting Georgetown was volunteered by amicus curiae Arthur Spitzer. Appellants filed a response in their reply brief. 3. Although Judge Mack holds that the student groups have no right to the status of "University recognition," she notes that the university has dropped its counterclaim to prevent the plaintiff groups' use of the university's name. Ante at 14 n. 12. By thus indicating that this issue no longer is alive, Judge Mack necessarily implies that this litigation does not preclude the plaintiff groups from continuing to identify themselves by reference to their affiliation with the university, e.g., the "Gay People of Georgetown University." I agree. Inherent in my own analysis, joined by Judge Terry, is a conclusion that the plaintiff groups may continue to use the Georgetown University name. I see nothing in any of the other opinions, aside from Chief Judge Pryor's, that would indicate otherwise. 4. Although Judge Mack does state, in one conclusional paragraph, that the trial court's "construction of the statute ... conflicts with its literal meaning," ante at 21, she apparently concedes that the statutory language itself does not plainly foreclose plaintiffs' request for "recognition" in connection with their use of university facilities and services; the "literal meaning" of the statute has to be derived with the help of ten pages of constitutional analysis. Ante at 21-25. 5. See, e.g., J. FLETCHER, STUDIES ON SLAVERY; J. PRIEST, BIBLE DEFENSE OF SLAVERY ...; REV. T. STRING-FELLOW, SLAVERY, ITS ORIGIN, NATURE AND HISTORY: ITS RELATION TO SOCIETY, TO GOVERNMENT, AND TO TRUE RELIGION; REV. F.A. ROSS, SLAVERY ORDAINED OF GOD, all cited in A. CRAVEN, THE COMING OF THE CIVIL WAR 162-63 & 453 n. 14 (2d ed. 1957). 6. See Bob Jones University v. United States,461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983). 7. Judge Mack's view that the Act simply does not reach Georgetown's decision not to `recognize" the student groups makes the university's motive for its decision irrelevant. Thus, even if the university were to claim it acted out of hatred for homosexuality, rather than out of a religious obligation not to be institutionally associated with the plaintiff groups, the Act, according to Judge Mack's analysis, would equally protect Georgetown's right not to grant "University recognition." Similarly, under such reasoning, a motive of racial hatred in no way would undercut a university's right under the Act not to "recognize" a black or Asian or Hispanic student organization. 8. Theoretically, there is a possibility that the level of constitutional scrutiny of discrimination based on sexual orientation may be less strict than the level of scrutiny applicable to discrimination based on race, when the government's interest in enforcing the Human Rights Act is weighed against the interest of a party who asserts a constitutional right to discriminate. But that possibility — which I need not address — has no bearing on whether the Act would make the discrimination unlawful; the issue, rather, would be whether unlawful discrimination of one sort, but not of another, would be excused on constitutional grounds. 9. Judge Mack gives two reasons for concluding the trial court's finding that "recognition" means "endorsement" is not clearly erroneous: first, that Georgetown itself viewed "recognition" as a form of endorsement, thus of speech; and, second, that granting "University recognition" is a discretionary decision by the university. Ante at 19. Neither reason is applied consistently in the opinion, for both factors apply equally to the tangible benefits resulting from "University recognition." Judge Mack concludes that forced provision of tangible benefits does not violate the constitutional prohibition on compelled endorsement, but Georgetown itself made clear that it views having to give tangible benefits also as a compelled endorsement, and the granting of such benefits is just as discretionary with the university as is the granting of the intangible benefit of "recognition." Moreover, neither reason is persuasive ground for Judge Mack's assumption that "recognition" amounts to spoken endorsement of homosexuality in the sense that reciting the pledge of allegiance to the flag amounts to spoken endorsement of patriotic values. As elaborated in the text above, the constitutional significance of "recognition" cannot be determined by Georgetown's subjective interpretation of that act, and, in any case, the trial court never stated its finding in such precise terms as Judge Mack requires to justify her conclusion. 10. It is interesting to note that the trial court did not develop or rely upon the theory of compelled "speech" absolutely forbidden by the Constitution. Instead, the court accepted that compelled recognition is "contrary to Catholic religious beliefs" and proceeded to inquire whether the government's interest in combatting discrimination against student gay rights groups was, under the circumstances, sufficient to justify the burden. The trial court concluded it was not. 11. Judge Mack notes the university has not argued on appeal that a legal requirement to provide tangible facilities and services, in contrast with intangible "recognition" or "endorsement," violates first amendment rights. See ante at 26 n. 21. In Georgetown's supplemental brief for en banc argument, I find only such statements as "this case involves much more than simply the question of access to facilities" and "[t]he few additional tangible benefits plaintiffs could obtain by the grant of official recognition are minimal at best." I find no concession that the university's free exercise defense does not embrace compelled provision of tangible benefits of any kind. It is true that, as noted in part IV infra, at oral argument Georgetown expressly disavowed reliance on an argument that compelled provision of the tangible benefits at issue violated the first amendment. But Georgetown's decision to waive any separate first amendment defense to providing tangible benefits in no way saves the sharp theoretical distinction, on which Judge Mack so heavily relies, between compelled endorsement and compelled subsidization of another's speech. 12. As Judge Bacon's findings, buttressed by Judge Mack's analysis of the record, make clear, Georgetown's motive cannot be characterized solely as a desire to frustrate speech; the university has made clear that the ultimate reason it does not want to be seen as approving advocacy of the moral dignity of homosexuality is precisely that Catholic orthodoxy condemns those who practice a homosexual lifestyle. Of course, that one's hostility to a group of people is grounded in moral or religious objections makes it no less illegal under the Human Rights Act than would hostility founded in mere emotional animus. 13. It is interesting to note that Georgetown has accepted federal funds for various purposes, representing, as required by statute, that no project assisted with those funds shall ever be used for "a sectarian activity." 20 U.S.C. § 1132e(c) (1982). Even if this statutory responsibility, as such, does not have a direct bearing on Georgetown's refusal to recognize the student groups for religious reasons, I do believe the university's acceptance of federal funds under this condition amounts to a representation, on which students reasonably can be expected to rely, that sectarian concerns will not derogate from the tolerance of all points of view reasonably to be expected in a university community — especially from a governing authority that manifestly is willing to expand its facilities, and thus its educational mission, with the help of public money. 14. Judge Mack's and Judge Belson's efforts to distinguish PruneYard are, to me, unpersuasive primarily because they do not deal with the nature of a university. 15. The university equates "recognition" with "endorsement" meaning "approval." I have previously noted that the trial court's finding that "`[t]he major purpose of "university recognition" is official endorsement'" is "not `clearly erroneous.'" (Citations omitted.) Gay Rights I, 496 A.2d at 572. But, as also noted, this finding about the "purpose" of recognition is ambiguous; it thus requires an evaluation of both the "practical and [the] normative meaning[s]" of "endorsement," an analysis the trial court did not provide. Id. at 573. Because the constitutionality of the Human Rights Act, as applied, turns on whether required "recognition" or "endorsement" amounts, in effect, to a coerced expression of religious approval or neutrality — or to something else — the meanings of those terms must be defined as precisely as possible and thus ultimately defined as a matter of law by this court. As discussed earlier, Judge Mack's deference to the trial court for the meaning of "endorsement," therefore, is wrong for two reasons: the trial court did not provide a meaningful definition, and, in any event, this court must be the interpreter of a term that has primarily a constitutional/legal, not factual, definition. As indicated in the text above, I would define "the University recognition/endorsement here ... [to] mean no more than `official tolerance' of gay rights groups." Id. at 574. 16. Judge Belson argues that Georgetown, by permitting student body endorsement of the plaintiff groups, "has tolerated fully the activities of the student groups in the market place of ideas that is a university." Post at 68 n. 12. That is simply not true; "student body endorsement" is, relative to "University recognition," a second-class status that inherently reflects less toleration of the plaintiffs' activities than of the activities of other student groups. 17. Georgetown suggests that compelled speech burdening religious beliefs is more odious to the Constitution than compelled speech violating non-religious beliefs. Judge Mack appears to agree, for she distinguishes the present case from Pacific Gas & Electric Co. v. Public Utilities Comm'n,475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986), in part on the ground that the latter involved only a free speech defense rather than a (presumably weightier) free exercise claim. Ante at 24 n. 19. Georgetown, however, has provided no authority to indicate that religious speech rights as such receive greater protection than non-religious speech rights. In fact, the precedents suggest no difference in the level of protection. The compelled-speech cases on which both Judge Mack and Georgetown principally rely concerned forced speech in violation of a person's religious beliefs, but two of these decisions struck down the government actions solely on free speech grounds equally applicable to cases implicating no specifically religious beliefs. See Wooley v. Maynard,430 U.S. 705, 714-15, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977); West Virginia State Board of Education v. Barnette,319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed.2d 1628 (1943); see also L. TRIBE, AMERICAN CONSTITUTIONAL LAW 864-65 (1978). The third case struck down a religious oath as a condition of public office but gave no indication that freedom of religious conscience deserved greater protection than freedom of conscience generally. See Torcaso v. Watkins,367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). 18. Judge Belson would affirm the judgment for Georgetown only because he resolves the constitutional issue in Georgetown's favor. It is interesting to note that, although Judge Belson would remand for determination of the university's motive, in order to evaluate whether the Human Rights Act has been violated, he is willing to "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." Post at 67. He acknowledges, however, that Georgetown's "free speech defense would be diluted to the extent, if any, that Judge Bacon's findings can be read to imply that Georgetown acted on the basis of the sexual orientation of individuals." Post at 68 n. 10. It appears clear, therefore, that if Judge Belson's constitutional analysis depends upon a university motivated "in large part" by a desire to suppress speech, and if he is not sure on this record how large a part that motivation played (obviously not large enough to avoid violation of the Human Rights Act as a matter of law), then a remand presumably should be required to determine whether there is, in fact, any reason for addressing that constitutional defense. Rather than dealing directly with this obvious deterrent to applying his constitutional analysis, Judge Belson states in a footnote that a diluted free speech defense "would not affect Georgetown's free exercise defense." Id. He does not explain why the latter would receive greater protection than the former, and I do not understand that it does. See supra note 17. 1. D.C.Code §§ 1-2501 to -2557 (1987). 2. In his opinion, Judge Ferren has included numerous reformulations of my positions on various issues. Many I cannot accept. It would lengthen this opinion unduly to address all of them. It should suffice to say that my positions are as stated in this opinion. One recurrent theme, however, merits brief mention. With respect to the reach of the Human Rights Act, Judge Ferren's opinion repeatedly blurs the distinction I draw between (1) taking an action, such as the denial of recognition, because of the content of one's speech or advocacy, and (2) blocking another's speech or advocacy, because of some other, possibly impermissible, reason. See opinion of Judge Ferren, ante at 47-48, 55, 56. My position is that the Act does not reach the former, but may reach the latter. 3. With respect to Judge Ferren's reference to the use of the university's name by the student groups, ante, p. 47 at n. 1, I point out that this issue is not before us. I also point out, however, that the use of the university's name would appear to be an assertion of the endorsement denied the groups by this court's ruling. 4. Judge Mack's opinion reaches no conclusion as to whether the Human Rights Act prohibits discrimination against persons or groups that advocate homosexuality. It instead finds that Georgetown in fact took homosexual orientation into account in deciding to deny recognition. Judge Mack's opinion, ante at 27-29. 5. For the same reason that the Human Rights Act cannot require Georgetown to endorse or subsidize the student groups, i.e., that such an interpretation of the Act would be inconsistent with the dictates of the first amendment, the so-called "effects" clause of the Act, D.C.Code § 1-2532 (1987), cannot be interpreted to proscribe Georgetown's conduct here. Section 2532 should not be interpreted to prohibit constitutionally protected conduct even though such conduct may have an adverse impact on a protected group. 6. I point out that, as I view the record, this appeal does not present the issues of statutory construction and constitutional law that would arise if a private actor treated another adversely merely because of the latter's personal ideas, values, or beliefs. This case involves a private actor, Georgetown, that asserts that it treats the appellant groups differently because of their promotion of ideas and conduct antithetical to the religious views adhered to by Georgetown. 7. Judge Ferren's opinion, ante at 55-56 would try to stretch Judge Bacon's findings to cover the statutory issue, but the coat does not fit. As I pointed out, Judge Bacon made no finding that Georgetown denied recognition because of the "sexual orientation of any individuals," which is what the statute proscribes. Judge Ferren relies upon Judge Bacon's finding that Georgetown's leadership concluded that "the gay student organizations ... were participating in and promoting homosexual life styles" (emphasis added), a part of her findings I quote more fully in footnote 9 below. But that does not satisfy the statute. Organizations, obviously, do not engage in sexual "practice[s]," the word contained in the statutory definition of "sexual orientation" that Judge Ferren emphasizes. See D.C.Code § 1-2502(28) (1987). They have no "sexual orientation" within the meaning of the statute. Moreover, it is plainly the thrust of Judge Bacon's findings that Georgetown's concern was with the organizational actions of the groups. 8. We need not reach the issue of how the Act should be applied if there was evidence that Georgetown had more than one motive for denial of recognition, and one such motive was proscribed by the Act. 9. Judge Bacon's findings of fact and conclusions of law are at R. 1687-1698. Among her findings of fact are the following:
10. In applying these teachings [those of the Catholic Church], the President of Georgetown University, the Dean of the Law Center, and defendants' expert witness, concluded inter alia that: a. The gay student organizations, as evidenced by their charters and their activities, were participating in and promoting homosexual life styles. Pl.Ex. 21 and 25, Def.Ex. 70-82, 88, 90, 91, and Tr. 85-86, 145-146, 385 and 393. b. Recognition of the student organizations would be inconsistent with Church normative teachings and with the basic obligation not to undermine the normative teachings of the Church. Testimony of Father McCormick, Tr. at 280; Testimony of Dean McCarthy, Tr. at 474; Testimony of Father Healy, Tr. at 605. 11. There was no evidence that the beliefs on which the University acted were bizarre, without foundation, or otherwise not entitled to recognition as sincerely-held religious beliefs.... Judge Bacon also found that "[t]he major purpose of `university recognition' is official endorsement, an endorsement which the University believes will conflict with the normative findings of the Church on homosexuality." (Footnote omitted). (R. 1693). Judge Bacon's findings are amply supported by the record. See, e.g., Letter from President T. Healy, S.J., to Dean D. McCarthy (May 8, 1980) [Pl.Ex. 24]; Memorandum from Dean W. Schuerman to P. Cleary, President of Undergraduate Student Government (Feb. 6, 1979) [Pl.Ex. 28]; Memorandum from Dean W. Schuerman to S. Ozmun (Nov. 21, 1979) [Pl.Ex. 33]; Letter from Dean W. Schuerman to J. Ryan (Feb. 21, 1980) [Pl.Ex. 36]; Letter from Dean W. Stott, Jr., to J. Ryan and S. Riel, GPGU (March 5, 1979). In her findings of fact, Judge Bacon quoted from Georgetown's correspondence with the student groups in which it advised them of Georgetown's reasons for denying them "university recognition" as follows: Georgetown University is a private university with a history and tradition which is specifically Catholic. University administrators must make decisions in light of the conscience and value system identified with this tradition. The University, in terms of this responsibility, cannot concur with an argument that official "recognition" would not imply endorsement. * * * * * * This situation involves a controversial and complex matter of faith and the moral teachings of the Catholic Church. "Official" subsidy and support of a gay law student organization would be interpreted by many as endorsement of the positions taken by the gay movement on a full range of issues. While the University and its Law Center cherish the individual lives and rights of its students, they cannot allow this deep respect for individual rights to become an inappropriate institutional endorsement and subsidization of a group cause involving controversial matters of faith and the moral teachings of the Catholic Church. * * * * * * The fact that the University has chosen not to grant endorsement to the "Gay People of Georgetown" as a University approved student activity, does not demonstrate a lack of concern, a lack of sympathy for the gay student in particular, or students in general. It simply means that after the facts have been considered and discussion has taken place, there remains a point of disagreement as to whether endorsement of the "Gay Students of Georgetown" as a student activity is appropriate for a Catholic University. The University's decision, therefore, is not a reflection on or a judgment of the personal choices of its individual members, but rather represents a judgment of what is appropriate for Georgetown as an institution. (R. 1690 [1643]-91) 10. While the free speech defense would be diluted to the extent, if any, that Judge Bacon's findings can be read to imply that Georgetown acted on the basis of the sexual orientation of individuals, such a reading would not affect Georgetown's free exercise defense. As quoted in footnote 9, supra, Judge Bacon found that the beliefs on which Georgetown acted were entitled to recognition as sincerely held religious beliefs. Accordingly, Georgetown was entitled to assert fully a free exercise defense to any alleged violation of the Act which sprung from its acting upon those religious beliefs. I point out that although the first amendment itself contains several guarantees against intrusive governmental conduct, one's ability to invoke any single one of these guarantees is not contingent upon one's ability to invoke all other first amendment guarantees. See, e.g., Engel v. Vitale,370 U.S. 421, 430, 82 S.Ct. 1261, 1266, 8 L.Ed.2d 601 (1962) (although the first amendment's free exercise clause and establishment clause "may in some instances overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom"). Thus, while the first amendment guarantees of freedom of speech and freedom of religion are in harmony, each has a reach of its own. A freedom of religion defense to intrusive governmental conduct is in no way dependent on assertion of a free speech defense. A litigant can assert the former without reference to the latter. See, e.g., United States v. Lee,455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982); Wisconsin v. Yoder,406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). 11. In the trial court and here, Georgetown has placed principal reliance on its free exercise defense. It relied in part on precedents, however, in the free speech area, and Judge Mack, correctly I think, decided to take into consideration free speech principles in analyzing the issues. 12. In arguing his disagreement with Judge Mack's conclusion that recognition amounts to endorsement, Judge Ferren develops his position that recognition actually signifies tolerance. Ante at 51-52, 53-54, 57, and 58-59. In my view, his analysis gives insufficient weight to the undisputed fact that Georgetown has tolerated fully the activities of the student groups in the market place of ideas that is a university. (I use the word "tolerate" here in its primary sense: "to not interfere with; allow; permit [to tolerate heresy]," WEBSTER'S NEW WORLD DICTIONARY 1495 (2d ed. 1982), rather than its secondary meaning: "to recognize and respect (others' beliefs, practices, etc.) without sharing them...." Id.) Without raising the issue of whether it can be required to do so, Georgetown has permitted the student government to grant status to the gay groups, and has thereby allowed these groups to function and to speak on campus. What Georgetown has declined to do is to endorse or subsidize them. 13. Judge Ferren describes as "separate but equal" the access to facilities afforded by Judge Mack's approach, under which Georgetown would have to provide tangible benefits to the student groups but would not grant them official endorsement. Judge Ferren's opinion, ante at 49. I point out, however, that under Judge Mack's approach, GPGU and GRC would be "separate" from other student groups at Georgetown only in that Georgetown, a private university, has refused to endorse the views they espouse. 14. Although Georgetown does not argue specifically that providing tangible benefits to the student groups would amount to a forced subsidy of speech to which it is opposed, I find it appropriate to reach this issue for three reasons. First, it is squarely presented by the facts of this case. In fact, one of the reasons Georgetown gave at the time it denied recognition to GPGU and GRC was that it found it inappropriate for a Catholic institution to give financial support to the activities of these groups. Def.Ex. 97, 102. Second, it has been forcefully argued by amicus curiae Arthur B. Spitzer, Esq., and has been addressed in appellants' briefs. Third, as Judge Mack notes, "[a]t no stage of this litigation have the parties requested that the `endorsement' and the tangible benefits be treated separately. The case has been litigated throughout on an `all or nothing' basis." Judge Mack's opinion at 20 n. 16. It was not until Judge Mack's analysis split "University Recognition" into the two components of endorsement and "facilities and services" that subsidization became a separate issue from that of endorsement of the student groups' views. Previously, the provision of facilities and services was included under the rubric of "university recognition." 15. It is interesting to note that the specific tangible benefits the student groups seek, a mailbox, mailing services, and computer labeling services, are resources that would directly increase their capability for disseminating their ideas. 16. The Council, of course, did not discuss or weigh the competing concerns at issue in this case. Indeed, in adopting D.C.Code § 1-2520 (1987), the Council made no express finding that the elimination of discrimination by educational institutions based on personal appearance, sexual orientation, family responsibilities, or any of the other factors enumerated there was a compelling state interest. 17. It is significant that GPGU and GRC acknowledged in their statement of undisputed facts in support of their motions for summary judgment that all Georgetown students (including homosexuals and bisexuals) are permitted to "(a) receive a degree, (b) participate in student activities, (c) attend classes, (d) participate in loan programs, (e) participate in athletic programs, (f) participate in awards and honors programs, [and] (g) use the placement service." (R. 909) No students, as individuals, have been denied any university facility or service by reason of sexual orientation. 18. It is impossible to decide, in a vacuum, whether eradication of discrimination on the basis of sexual orientation could be, in other circumstances, a compelling state interest. I merely conclude that the student groups' claim to the endorsement, facilities, and services at issue here is inadequate to create a sufficiently compelling interest to override Georgetown's constitutional rights. 19. Although the record bears out Judge Newman's observation that discrimination against homosexuals is not a tenet of the Catholic faith, ante at 45, I disagree with his conclusion that providing facilities and services to the student groups is, therefore, only an indirect burden on Georgetown's free exercise of religion. Forcing Georgetown to subsidize the dissemination of a doctrine of sexual ethics deemed immoral by the Catholic Church is a direct burden on its free exercise rights. In this respect, this case differs from Bob Jones University v. United States,461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983). There the burden on that university's free exercise of religion from the denial of its tax-exempt status was much lighter than the burden that would be imposed here. The Supreme Court said in Bob Jones that although "[d]enial of tax benefits will inevitably have a substantial impact on the operation of private religious schools, [it] will not prevent those schools from observing their religious tenets." Id. at 603-04, 103 S.Ct. at 2035. In contrast, the burden on Georgetown would constitute direct compulsion to violate its religious tenets by subsidizing a group whose purposes are antithetical to Catholicism. Furthermore, Bob Jones University ran afoul of the public policy against racial discrimination, which has constitutional underpinnings, see id. at 593, 103 S.Ct. at 2029, while the "state" interest at issue here is the enforcement of a statutory provision.
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