Briefing to explore the intersection of non-discrimination and religious freedom

By March 21, 2013

USA (MNN/ICF) — Tomorrow, the U.S. Commission on Civil Rights is taking a closer look at recent legal developments concerning the intersection of non-discrimination principles with those of religious liberty.

The discussion will involve both the ministerial exception case, Hosanna-Tabor v. EEOC, and the student group non-discrimination policy case, Christian Legal Society v. Martinez. Also at issue are religious liberty claims under First Amendment provisions other than the Religion Clauses.

InterVarsity Christian Fellowship staff and students have been invited to submit statements on incidents where universities have attempted to restrict the religious liberties of student groups in the name of non-discrimination. InterVarsity's National Field director Greg Jao says, "We've asked all of the student groups that have experienced discriminatory actions to submit testimony to the panel that will be part of the background information that they have, and that the U.S. Commission on Civil Rights will consider as they write up their report."

It began for InterVarsity more than ten years ago when campuses such as Harvard and Rutgers attempted to limit their ministry on campus because InterVarsity requires student leaders to affirm InterVarsity's doctrinal statement.

Since the 2010 U.S. Supreme Court decision in the case of CLS v. Martinez, even more campuses have pressed InterVarsity and other campus ministries on the use of religious criteria to select student leaders. In each case, InterVarsity begins a dialogue with the administration. Jao explains, "There are probably only 4 or 5 universities where that is currently an issue, but I'm working with 15 to 20 campuses right now where we're in the middle of that process. So, the number could skyrocket pretty quickly. And at Vanderbilt University, there are 1400 students who have been de-recognized–some in InterVarsity and then in other groups, as well."

InterVarsity has always affirmed the applicability of nondiscrimination policies to group membership. However, dialogue provided a clearer understanding of diversity, tolerance, and expectation, says Jao. "There are many universities like Tufts and public universities like Ohio State and Florida which have revised their non-discrimination policies. They recognize that in order for religious groups to remain authentically religious, they need to be led by people who embrace that religion."

These schools recognize that religious organizations should not be forced into a position which would threaten their religious vitality. Jao notes that "when religious groups are being excluded from campus in the name of tolerance and non-discrimination, I think those policies are failing at some level. I think greater attention nationally will be helpful for that," adding that the national briefing will put that conversation on a larger platform.

Still, some schools will not allow any exceptions to their non-discrimination policy, at least when it comes to religious organizations. When asked if this could be the beginning of religious persecution aimed at Christians, Jao demurred. "I don't believe this is a cultural war issue. I really believe that, in the vast majority of cases, universities are–with a lot of integrity–trying to create a safe environment on campus, and for the first time, they have to wrestle with religious diversity."

De-recognized organizations aren't allowed to partner with registered student groups for the purposes of community service, worship, or learning. They also have limited access to campus facilities for their meetings, and they enjoy none of the privileges extended to all other student organizations. In this case, Vanderbilt University and Rollins College refused to consider changing the non-discriminatory policies, again raising the question of religious liberty and tolerance.

The good news: the investigation by the Civil Rights Commission will result in more colleges and universities being willing to resolve perceived conflicts between non-discrimination policies and religious freedom. Jao says, "We think it'll be widely read by the universities. I hope that legislators and other public officials will read it as they think about how to position the United States and the public colleges and universities in the United States around this issue, and I hope that it'll be read by student affairs professionals, those people who run student activities offices."

There will be two panels at the briefing. The first panel will be composed of scholars involved in the Hosanna-Tabor v. EEOC or Christian Legal Society v. Martinez litigation: Kimberlee Colby, Senior Counsel at the Christian Legal Society, Ayesha Khan, Senior Litigation Counsel, Americans United for Separation of Church and State, Daniel Mach, Director, American Civil Liberties Union Program on Freedom of Religion and Belief and Lori Windham, Senior Counsel, Becket Fund.

The second panel will consist of experts who will discuss the broader conflict between anti-discrimination norms and civil liberties. Experts scheduled to appear on the second panel include Alan Brownstein, Professor, University of California at Davis Law School, Marc DeGirolami, Associate Professor, St. John's University School of Law, Leslie Griffin, Professor, University of Nevada Las Vegas Law School, Marci Hamilton, Professor, Benjamin N Cardozo School of Law, Michael Helfand, Associate Professor, Pepperdine University School of Law, and Edward Whelan President, Ethics and Public Policy Center.

Jao is asking prayer for himself and others in ministry as they give testimony at the briefing. Pray "that we're providing articulate commentary and background to this issue. This is more than an abstract question of religious liberties vs. nondiscrimination values. This is a problem that's actively affecting thousands of students around the country."

Jao is quick to note that regardless of the outcome of the report down the road, InterVarsity will find ways to be biblically relevant to the next generation. "We're longing to see more Christian students, faculty, and administrators come to those campuses to be salt and light there. We really do see the university as a mission field. I think what's been true about the Church for 2,000 years of mission activity is: when there's a problem area of the world that's resistant to the Gospel, our first response shouldn't be withdrawal, but increased engagement and prayer and then, sending."

The briefing will take place on Friday, March 22, 2013 from 9:30 AM EDT to 1:00 PM EDT. Click here for an audio webcast of the briefing.

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