Rick Garnett on "Discrimination" and Religion

At The Public Discourse, our co-blogger Rick Garnett has a piece called "Confusion About Discrimination." The occasion is the decision of a Catholic student group at Vanderbilt, a private university, to leave campus rather than comply with a university policy that, in Rick's words, "requires religious student groups (but, interestingly, not all student groups) to open membership and leadership positions to 'all comers,' without regard to religion."

Rick argues that "the goings-on at Vanderbilt reveal a troubling confusion about 'discrimination,' a confusion that, as it spreads, will undermine religious freedom, institutional pluralism, and civil society. This confusion travels with a deeply illiberal failure to appreciate that the kind of liberal democracy we should embrace is not 'total' or 'comprehensive'; in Lawrence Alexander’s words, it is not 'liberalism all the way down,' and it does not insist that the rules that govern in the political sphere and context—non-discrimination, neutrality, 'all comers', etc.—need to, or even should, govern in other spheres and contexts." He suggests that incidents like this risk confusion about two matters: what constitutes not just discrimination but wrongful discrimination and, even when we are confident that we have identified it, when government is or is not empowered to address it. (Rick is quite clear that the Vanderbilt incident itself only involves the first question, not the second. But he notes, accurately, that Vanderbilt draws on the Supreme Court's decision in CLS v. Martinez to justify the policy.)

I am largely, although perhaps not entirely, sympathetic to Rick's argument.

Let me first add a factual detail or two about Vanderbilt's policy, as best as I can make it out on a brief examination. (Here's a link to a Vanderbilt page discussing the policy.) The nondiscrimination policy is not directed at religious student groups alone, and is broadly applicable. The major exception, as far as I can tell, is that (go figure) it exempts single-sex fraternities and sororities, as permitted by federal law. The university's description of the policy says, for example, that "Republicans and Independents are eligible to join the College Democrats, and any member may run for office, though it is up to the members to select their leaders.  This is true for all RSOs at Vanderbilt."

It's also worth adding this part of the university's statement: "This past year, the University conducted a review of all RSOs’ compliance with the nondiscrimination policy following an allegation of sexual-orientation discrimination.  Most RSOs were found to be in full compliance, but a handful were not, often based on a misunderstanding of the policy." I don't know whether the Vandy Catholic group was one of those allegedly non-complying groups. A story about the controversy quotes a group leader as saying, "We require that our leaders be practicing Catholics. And the university’s nondiscrimination policy -- they have made it clear that there is no room in it for an organization that has these faith-based qualifications." On the face of that statement, this appears to be about something other than sexual orientation itself; it is not incompatible with being a practicing Catholic to be gay or lesbian! I would be less sympathetic to the group, at least given what I understand about underlying Catholic doctrine, if it engaged in status-based exclusion based on sexual orientation; if its position is that leaders of a student Catholic group must be Catholic and not, say, Hindu, that would be a different and I think, more sympathetic, policy, even though it would be more exclusive in certain respects.

I agree with Rick (as he knows) that simply invoking discrimination, or even invidious discrimination, is not enough to answer the question when a group is engaged in wrongdoing, much less when the government can or ought to address it. Let us be clear that Rick is emphatic in his editorial that he believes that opposition to invidious discrimination is wrong, as do I. Like him, however, I don't think that belief alone settles the kinds of questions he's addressing.

Does it matter that this case involves Vanderbilt and not, say, Hastings? Under the law, absolutely. I'm less clear about how it figures in for Rick, although I know both he and I disagree with the Court's decision in CLS. (For an excellent critique of that opinion, see this measured but critical piece by John Inazu.) I suspect that, like me, Rick thinks it matters but is not dispositive of what Vanderbilt ought to do rather than what it can do; but I'm not clear, past that, on how we might come out in different cases.

For both of us, the phrase "institutional pluralism," which he uses above, is essential. My own view is that Vanderbilt is arguably free to form, as a matter of institutional mission, a position that disfavors even the requirement that leaders of Catholic (or Jewish, or Baptist, etc.) groups belong to that faith. Both members of that university community, and members of the broader academic community and citizens themselves, are then free to praise or criticize that decision. I would rather that the decision be left open to the university itself rather than being legally compelled, however. From that position, I am both willing to defend Vanderbilt's decision in broad terms of institutional pluralism and inclined to think it was the wrong decision. In any event, I agree with him that simply invoking "discrimination" will not settle the matter.

Read Rick's piece!