Christian Legal Society v. Walker, No. 05-3239 (7th Cir. July 10, 2006)
The U.S. Court of Appeals for the Seventh Circuit has ruled that a state university violated the free speech and expressive association rights of a Christian student organization when it revoked the group's official status for excluding students who engage in or affirm homosexual conduct. When officials at Southern Illinois University's (SIU) School of Law received a complaint about the Christian Legal Society's (CLS) policy of denying membership or leadership roles to active homosexuals, they revoked CLS's official status for violating SIU's affirmative action/equal employment opportunity policy and a policy that states, "No student constituency body or recognized student organization shall be authorized unless it adheres to all appropriate federal or state laws concerning nondiscrimination and equal opportunity." CLS sued, alleging violation of its First Amendment rights to expressive association, free speech, and free exercise of religion and its Fourteenth Amendment rights to equal protection and due process. The district court denied CLS's motion for a preliminary injunction ordering its reinstatement, concluding that CLS had failed to carry its burden of demonstrating that it was likely to succeed on the merits of its claims and would suffer irreparable injury from losing its status.
CLS appealed to the Seventh Circuit, which focused on the expressive association and free speech issues. Where claims involve loss of First Amendment freedoms, the court found, there is a presumption of irreparable injury, and injunctions protecting such freedoms are in the public interest. Therefore, to determine if an injunction was warranted the court needed only to (1) address whether CLS was likely to succeed on the merits of its claims, and (2) balance the harms to parties. The court began by testing SIU's contention that it acted because CLS's practice violated SIU policy. This was unlikely, the court determined, because CLS's policy is based on belief and behavior, not on sexual orientation per se. Heterosexual students also are barred if they engage in sexual activity outside marriage without repenting. The court also expressed doubt that CLS violated the affirmative action/EEO policy, because CLS is neither an employer nor an SIU educational opportunity. Even though recognized student organizations are subsidized by SIU, the U.S. Supreme Court in
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995), found that such organizations engage in private speech. For these reasons the court concluded that "CLS has demonstrated a likelihood of success on the threshold question of whether either of SIU's stated grounds for derecognition actually applies."
Turning to the expressive association claim, the court found that whether CLS had demonstrated a likelihood of success on the merits turned on three questions: "(1) Is CLS an expressive association? (2) Would the forced inclusion of active homosexuals significantly affect CLS's ability to express its disapproval of homosexual activity? and (3) Does CLS's interest in expressive association outweigh the university's interest in eradicating discrimination against homosexuals?" The court answered all three questions affirmatively. CLS is an expressive association, as it requires members to espouse particular beliefs and adhere to a conduct of behavior. CLS would have difficulty conveying its message of disapproval of certain conduct with any sincerity or conviction if forced to accept members and officers who engage in that very conduct. And even though the state has an interest in eliminating discrimination, "the Supreme Court [in both
Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), and
Boy Scouts of America v. Dale, 530 U.S. 640 (2000)] has made it clear that antidiscrimination regulations may not be applied to expressive conduct with the purpose of either suppressing or promoting a particular viewpoint."
While acknowledging that the facts were sparse regarding the free speech question, particularly as to what type of forum was at issue, the court nonetheless found that CLS was likely to succeed on the merits of this claim, because SIU's affirmative action/EEO policy, while neutral on its face, appeared to have been applied in a viewpoint discriminatory manner. Many other officially recognized student organizations SUI restrict their memberships, including the Muslim Student Association and the Seventh Day Adventist Campus Ministries. Ultimately, the court determined, it would be for the district court to determine what type of forum exists and what purpose the forum serves in order to answer the speech issue.
Lastly, the court found that the harm to CLS of denying the injunction,
i.e., loss of use of campus facilities and resources, would outweigh the harm to SIU of being prevented temporarily from enforcing its policies. Moreover, if "SIU is applying that policy in a manner that violates CLS's First Amendment rights—as CLS has demonstrated is likely—then SIU's claimed harm is no harm at all."
Christian Legal Society v. Walker, No. 05-3239 (7th Cir. July 10, 2006)
[Link to full opinion]