We all know that discrimination based on race, gender, religion, etc., is illegal. And we also know that the First Amendement gives people the right to peaceably assemble. But what happens when those who want to assemble also want to discriminate? That’s the problem facing California State University.
In the past few months, San Diego State has struggled with free speech issues. The Campus Anti-War Network has marched through Centennial Walkway and Movimiento Estudiantil Chicano/a de Azltán has demanded First Amendment training for University Police. Now, four religious organizations have filed a lawsuit against the California State University system alleging that their First Amendment rights are under attack.
The organizations’ representatives said it’s their right to exclude non-Christians. However, CSU representatives said yesterday that this is tantamount to discrimination.
This is a tough issue, but I have to side with the school.
When I’m faced with a problem like this, I imagine both possiblities and see where they lead. So…
If the school wins, nothing is stopping those students from assembling. What those students want is to be school sanctioned, i.e., get school funding, use school resources, etc. And if they want all of these benefits then they should follow the school’s requirements. So even if the students lose, they still keep their right and ability to assemble.
But what if the student groups win? If they win then the school will be forced to accept Nazi, KKK, and other groups. So if the students win, they keep their right and ability to assemble, but in this instance, the school and its students lose big-time.
Considering both, since both sides win when the school wins, I have to lean towards the former. We have a right to assemble, but we don’t have the right to force others to sanction it.
The 10th Amendment preserves the states’ the power to create anti-discrimination laws in both the public and private realms. But it must be noted that most “civil rights” are artificial rights granted by taking away some of the “civil liberties” of the people; most notably the rights to free speech, assembly and free association. The main problem I would see with this is that if the state allows some groups, then it must allow all groups. Individuals have the natural right to discriminate, the government does not.
There really is no legitimate authority of the federal government to establish anti-descrimination laws, where the states and private institutions/organizations are concerned, in either the literal text of the Constitution or the understood intentions and beliefs of the founders.
“There really is no legitimate authority of the federal government to establish anti-descrimination laws, where the states and private institutions/organizations are concerned, in either the literal text of the Constitution or the understood intentions and beliefs of the founders.”
Yeah, that’s a common belief. There certainly is no provision anywhere in the bill of rights that it applies to states. However, numerous Supreme Court decisions have held otherwise. To say that the decisions of the US Supreme Court lack any “legitimate authority” would be like attempting to argue that gravity doesn’t exist. A fun theoretical exercise, but nonsense in the real world.
Let me ask you this, what’s the point of the Constitution and the amendments if states can violate them?! Meaningless! That’s what. That’s why courts have held that states are bound by the Constitution in their own state constitutions. Thus a state can give more rights, but it cannot give less.
A good example of that is my own state of Michigan. The Michigan Constitution states this about the right to bear arms: “Every person has a right to bear arms for the defense of himself and the state.” It does mention militias thus it’s pretty clear that it does not pertain to militias. Thus it gives more rights to bear arms than the US Constitution.
“the constitution does not grant us or give us ANY rights. the rights are a priori. the constitution and bill of rights CODIFIES the rights”
Yeah yeah, the next time I’m in Plato’s land of the forms, I’ll be sure to check those rights out.
Under the construction of the Constitution, the states retain the power to do anything not explicitly denied them, the federal government only has the power to do what is explicitly allowed. This is the key idea behind the federal system that was established by the founders. The Bill of Rights did not apply to the states until the passage of the 14th amendment, and no other thing has done more to gut the federal system than it has. The Constitution served only to establish a new federal government, and to outline how the states would interact within that system. The reason why the restrictions on federal power did not apply to the states was because the thirteen sovereign states, that predated and created this new government already had well established systems to protect many of the rights protected by the new Constitution. The fear was that this new federal government would usurp the authority of the states and take away the rights of the people.
Now, I refer only to what is actually written in the Constitution, not the leaps in interpretation with no basis in the actual language that have been made by courts to achieve an end result with no legitimate origin in the text. This is quite a bit different from arguing over the existence of gravity, but I concede that it is pointless anyway.
The way religious organizations are normally handled at most campuses is that each religious organization has a meeting house, church, mosque, temple, storefront or other gathering place just off campus. Think of Hillel houses (Jewish), Aquinas centers (Catholic), and the like. Then there’s no conflict of church and state, religious restrictions if any can be applied without problems (think Mormon temples) and everyone is more-or-less happy.
Constitutionally speaking, the Christian group can still peaceably assemble on campus, but can still have their restricted meetings at their gathering place off campus, independent of campus rules.
One little problem though. While the specific Christian group may want to restrict membership to their believers for whatever reason, they may have a really hard time “saving souls” of others if they do restrict. Counterproductive for them, but maybe a really good thing for the nonbelievers.
Anti-discrimination laws do not trump the first amendment.
In a ruling issued June 28, 2000, the United States Supreme Court said that the Boy Scouts of America may invoke their First Amendment rights of free expression and association to discriminate against gays. The reason that some organizations may discriminate legally and others can’t has to do with a sincerity test. This is a test that the court has traditionally applied to group’s trying to escape an anti-discrimination law.
Quote:
There are many instances where organizations have tried to invoke First Amendment freedom of association or expression in order to evade civil rights laws. During the 1960s, ’70s and ’80s, groups representing everything from amusement parks to private schools have attempted to exclude African Americans, based on the First Amendment. In the 1980s, the Jaycees and the Rotary Club made similar, ineffective use of the Constitution, arguing that they ought to be free of laws banning sex discrimination.
The U.S. Supreme Court soundly rejected these groups’ earlier attempts to discriminate, primarily because none of the organizations existed for the purpose of creating an exclusive forum for white people or for men. If that was their purpose — however racist, sexist and repugnant it might be — they would be protected by the First Amendment.
Quote:
The Boy Scouts is a truly massive organization which operates in the public marketplace. It has more than 4.5 million members recruited from the general public; hundreds of paid staff; many facilities, such as camps, which are available for use by nonmembers; and substantial income derived from a variety of sources, including sales of goods and services to the public at its many retail outlets and events. The Boy Scouts of America have an annual income in excess of $50 million. Much smaller organizations have been determined to be “businesses” by the Court.
“While we deplore the Boy Scout’s desire to exclude gays, atheists, and agnostics from their membership, the Court has clearly said that such a policy is protected by the Constitution,” said Linda Hills, Executive Director of the San Diego ACLU.
If Christian groups must admit non-Christians, then campus Chicano groups must admit euros; gay groups must admit straights; women’s groups must admit men; etc.
Am I wrong in this? Freedom of association laws are much more clear-cut and fundamental to our constitution.
I’m a lib but even I see that anti-discrimination laws are highly problematic. Most groups are based on some sort of affinity which means exclusion.
The American constitution has become almost biblical in that numerous interpretations have diluted the meaning and intent of the original authors. We now have legions of nitpickers attempting to spin the thing to fit their own agendas, completely abandoning any shred of common sense in the process.
John,
You are exactly right. The largest problem we have today is this notion that the same words should be able to be reinterpreted to have a different meaning than what was intended by those who actually wrote them. This is the whole “living” Consitution nonsense. When the same law can be decided to mean completely different things depending on who is reading it, you have no standard under which to base a system of government on. It is a very dangerous trend, and unfortunately more and more are promoting it these days. It’s far easier to change the law through reinterpretation than to actually change it through a valid legislative process.