Religious Liberty Finally Secure in the University of Wisconsin System

By February 5, 2007

The University of Wisconsin has finally acknowledged its constitutional obligation to uphold the religious liberty of its students. Last December, the University of Wisconsin Board of Regents passed a new policy binding on all institutions within the University of Wisconsin System that allows religious student groups to choose their members based on their beliefs. That decision comes on the heels of a lawsuit filed by the Alliance Defense Fund on behalf of InterVarsity Christian Fellowship at the University of Wisconsin–Superior. The new policy states:
Student organizations that select their members or officers on the basis of commitment to a set of beliefs (e.g. religious or political beliefs) may limit membership, officers positions, or participation in the organization to students who affirm that they support the organization’s goals and agree with its beliefs, so long as no student is excluded from membership, officer positions, or participation on the basis of his or her race, color, creed other than commitment to the beliefs of the organization, religion, national origin, disability, ancestry, age, sexual orientation, pregnancy, marital status or parental status, or, unless exempt under Title IX, sex.
The policy is a good change, but rather confusing. The policy does allow religious groups to make belief-based choices, but then goes on to include religion as a criterion on the basis of which organizations cannot discriminate. What is religion but a set of beliefs? If a religious organization excludes people from membership on the basis of their beliefs, will they get into trouble for discriminating on the basis of religion? Is religious discrimination the only prohibited belief-based discrimination? Or is there some other explanation? It simply isn’t clear. A good anti-discrimination policy would demonstrate unambiguous support for the right to make belief-based membership choices, a right inherent in the freedom of association. Nonetheless, this policy is a big step in the right direction.
 
As FIRE reported last September, the debacle at the University of Wisconsin began when the University of Wisconsin–Madison de-funded the University of Wisconsin Roman Catholic Foundation on the grounds that a public institution funding a religious organization violated the Establishment Clause of the First Amendment. The Knights of Columbus, a Catholic service organization, was also denied recognition on the same grounds, and the University of Wisconsin–Superior denied recognition to InterVarsity Christian Fellowship on charges of religious discrimination.
 
Unbelievably, the University of Wisconsin argued that Rosenberger v. Rector and Visitors of the University of Virginia and Board of Regents of the University of Wisconsin System v. Southworth—the two leading Supreme Court cases on student fee funding—required them to refuse funding to religious groups. In fact, the university’s actions were in direct contravention of those rulings. (Read the correct interpretation of these decisions in FIRE’s Guide to Student Fees, Funding, and Legal Equality on Campus.)
 
On August 4, the Alliance Defense Fund wrote a letter to the University of Wisconsin demanding that the University respect students’ religious liberty and allow them to establish organizations for the purpose of spreading their religious message. The University responded by saying that they would not only deny recognition and funding to the previously mentioned groups, but they would also consider de-recognizing an additional half-dozen or more religious organizations.
 
The Roman Catholic Foundation filed a grievance with the Department of Justice against the University of Wisconsin, at which point the University announced that it would continue to deny recognition to the student organization until the campus Christian organizations opened membership to all students, regardless of belief. The Christian Legal Society and Calvary Chapel also lost their student organization status.
 
The University of Wisconsin refused student group status and funding to religious organizations for discrimination on the basis of belief, conflating the idea of belief (on the basis of which one can lawfully discriminate) with that of status (on the basis of which discrimination is unlawful). FIRE explained the distinction between status and belief as follows in its amicus brief to the Seventh Circuit Court of Appeals in Christian Legal Society v. Walker:
 
There is a difference between making a determination on the basis of an immutable characteristic and making a choice on the basis of changeable personal beliefs and rules of conduct. For example, Muslim Malaysians would not be suitable for voting membership in the Christian Legal Society not because of their Asian heritage but because Muslims tend to be poor ambassadors for the (constitutionally protected) idea that Jesus is Lord.
 
The Seventh Circuit recognized the status/belief distinction in its decision, holding that Southern Illinois University’s derecognition of a Christian student group likely violated that group’s constitutional right of expressive association.
 
Inherent in the right to organize and assemble around certain ideas and principles is the right to exclude people who disagree with those ideas or fail to abide by those principles. A Christian group has the right to require that members adhere to Christian tenets, just as a Republican group can require its members to hold to the tenets of the Republican platform; a Christian group can require that members of its organization abide by certain sexual mores just as a vegetarian group can require that its members follow certain dietary restrictions.
 

Essential to the idea of freedom of conscience is the ability to hold certain beliefs, even unpopular ones, and to assemble with like-minded individuals to the exclusion of those who disagree. The Constitution makes no distinction between the rights of religious students and the rights of other ideologically based groups—freedom of conscience and freedom of assembly apply to all. The University of Wisconsin has finally made the legally and morally right decision and avoided further embarrassment and legal repercussions—although the new policy could still use some work.