In this end of semester paper for Political Science 470: First Amendment (UW), Ryan Thiele plays the role of a U.S. Supreme Court Justice attempting to answer the question of whether a state bar can refuse accreditation to a university’s law school because of a state interest in eliminating discrimination in the law practice despite the University’s sincerely held religious beliefs.
Justice Thiele delivered the Opinion of the Court.
The question before us is whether the First Amendment’s free speech and free exercise clauses were violated when the Bar refused to accredit the University’s law school because of what it perceived as discrimination. We conclude that, under our holdings in Reynolds, Sherbert, and Smith, the free exercise claim regarding the honor code was not violated because it discriminated against LGBT law students. However, we find that the University newspaper’s freedom of speech was violated under American Booksellers (7th Circ.) and Snyder because the Bar was attempting to correct what it perceived as an incorrect worldview, a role not suited for government. We accordingly affirm in part and reverse in part.
Redeemer University (the University) is a private evangelical university in San Jose, California, owned and operated by Redeemer Ministries, an evangelical denomination representing over fifty thousand throughout the United States and Canada. The University requires all students to sign an “honor code,” which mandates student adherence to the “love of God, his truth, and our fellow men…[to] treat others with love and respect, to be honest and fair…refrain from drugs and other addictive substances…[avoid] all sexual intimacy outside of marriage between husband and wife.” There is a student publication, The Proclaimer (the newspaper), that contains a weekly column titled “Family and Society” with regular articles condemning homosexuality and denouncing the politics of LGBT advocates.
The State Bar of California (the Bar) is a public corporation falling under the state’s judicial branch and Supreme Court. Like other states, it oversees the accreditation of lawyers and institutions in California; of relevance, the Bar’s enabling statute mandates under section 45.c that it is tasked with “promot[ing] equality, justice, and nondiscrimination in the legal academy.”
In 2018, the University applied to the Bar in an attempt to receive accreditation for a newly built law school. The Bar rejected the application on the grounds that the honor code and the newspaper were antithetical to the Bar’s commitment to diversity and nondiscrimination in the state’s judicial system. Further, the Bar stated that it would grant accreditation should the University eliminate the honor code and cease publication of the student newspaper. In return, the University sued the Bar for violating what it believes are sincerely held religious beliefs protected by the First Amendment’s free exercise and free speech clauses.
The Ninth Circuit held that the Bar had not violated the First Amendment in its refusal to grant accreditation, reversing the Central District Court who ruled in favor of the University. Specifically, the Ninth Circuit stated that the free speech and free exercise clauses combined fell under our holding in Employment Division v. Smith while also satisfying Sherbert v. Verner’s strict scrutiny test when a neutral law is applied discriminately. We then granted certiorari.
It would be inappropriate to state that our constitutional principles are ever-changing; if this were true, what would be the point of our Constitution or the value of our public institutions? In the same token, it would be impracticable to govern a modern society using solely the practices, definitions, and ideas of over two-centuries ago. With this in mind, there must be a balance between the principles that bind our nation together and make us unique, while adapting to the challenges of the present-day.
The beauty of the common-law system is the possibility for evolving norms and understandings while remaining within the bounds of a society’s traditions that found its way into legal precedent. It forces us to interpret both the contemporary applicability of a law at hand and the history of an idea handed down generation after generation. For example, the Third Amendment’s prohibition against the quartering of troops leaves little room for interpretation despite the difference in historical era. On the other hand, what exactly is an unreasonable search and seizure? Surely the Founding Fathers had little knowledge that most of the world’s information would be stored within cloud data. How then do we apply the Fourth Amendment?
To the present case, the First Amendment states that government cannot draft laws that abridge the free exercise or respect the establishment of a religion, nor abridge the freedom of speech or of the press. We understand the principles inculcated within the text, but our understanding of its applicability has changed over time. We therefore look not just to the principles inculcated in our founding documents’ text, but the history of this Court’s interpretation of those principles as they’ve been applied to different scenarios. This is how we will govern and interpret the merits of this case under the First Amendment.
We begin by evaluating the free exercise claims by the University. The University contends that the Bar’s state interest in nondiscrimination significantly inhibits their free exercise. Further, they claim that the condition of removing the honor code forces them to choose between their business and their religion. Neither of these arguments are persuasive.
In Smith, this Court held that the State of Oregon’s ban on the possession and use of peyote was constitutional because it was a neutral law of general applicability, despite its important use in some religious ceremonies. The rationale of the Court is that by providing exemptions to generally applicable laws the value of said laws is diluted. One could claim that their religion does not allow for the payment of the income tax, or allows for the refusal of mandatory public schooling for children below the eighth grade. If exemptions such as these and others were allowed, then evidently the allowance of discrimination by a religious law school while refusing to accredit a secular one for its own allowance of discrimination would defeat the purpose of a neutral law that furthers a compelling state interest. “It is a permissible reading of the text…that if prohibiting the exercise of religion…is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been violated” (Smith, 1990). With the banning of discrimination throughout the law practice, including legal training, it is difficult to understand why the University should be treated differently when the law is applied equally to all.
It cannot be stressed enough the general applicability of the law barring discrimination in the legal practice. Our holding in Braunfield is demonstrative of this fact. “If the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance” (Braunfield, 1961). In Braunfield, a ‘Sunday Closing Law’ for businesses indirectly impacted the Orthodox Jewish community who did not work on Saturdays by extending their inability to work to Sunday. However, the Court found that Sunday Closing Laws had a long history of secular purposes and was generally applicable to all businesses. We find no difference here in the Bar’s neutrality amongst legal academies and practicing individuals when furthering an obvious secular purpose.
The Bar has shown a compelling state interest: it is difficult to think of any higher state interest than maintaining the integrity of our judicial system because of its effects on all aspects of society, whether it be civil or criminal. In Reynolds, we stated that “laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices” (Reynolds, 1878). Our judicial system is only efficient when we uphold our eternal principle of man’s equality before the law. It is challenging to see how this could be achieved when a law school mandates that its students renounce homosexuality. This not only discriminates against law students who are homosexuals but implies the possibility of producing discriminatory lawyers who are themselves not homosexual. The Bar’s duty to “promote equality, justice, and nondiscrimination in the legal academy” is one of extreme importance in ensuring fair representation of all people that come before the courts. This cannot be done by discriminating against those who wish to join the legal practice. If eliminating discrimination within the legal practice, especially training for the practice, is not a compelling enough interest, then we know of no other thing that is more vital to government’s central purpose than ensuring the fairness of our judicial system.
In Sherbert v. Verner, we held that the denial of unemployment compensation because of a religious practice or belief was a burden upon the free exercise of a person’s religion when the “pressure…to forego that practice is unmistakable” (Sherbert, 1963). Further, we held then that neutral laws that are used in a discriminatory way must be shown to further a compelling state interest and be narrowly tailored to reduce the burden. The University contends that accreditation on the condition of removing the honor code forces them to choose their business over their religion. Though the issue in Sherbert dealt with a right and not a privilege such as being admitted to a state bar, we will accept for the sake of argument that Sherbert applies to a state privilege.
It is clear that there is a burden placed upon the University by the Bar, but as we have previously established there is a compelling state interest that overrides the burden. Secondly, the law is certainly narrowly tailored. The Bar is not stating that the University cannot have an honor code; the Bar is merely stating that the code’s language discriminates against LGBT law students in violation of the Bar’s statute. Even still, the Bar is not attempting to change the University’s beliefs, teachings or practices. Nothing is stopping the University from incorporating religion into its academics; the only contention is that of the mandatory code prohibiting homosexuality. Sure, the Bar could have asked the University to sever the clause in contention. We believe that may be a secondary question of free exercise, as that would be the state picking and choosing what beliefs are acceptable, but since neither side have made that argument or recommended it we will not address it here.
The University contends that the law in fact is not generally applicable, which would then invalidate the strength of the compelling interest argument under Smith and Reynolds. The University points to our holding in Lukumi as an example of a general law directed at religious practices. In Lukumi, a city ordinance prohibited the “unnecessary” killing of an animal in rituals, both private and public, that were not primarily for food consumption. We held that this was not generally applicable because the city had crafted exemptions for the sometimes horrible killing of animals for sport, pest control, or experimentation and the main statute was directed at the religious group.
However, a similar scenario is not found here. One, the use of the Bar’s authority against the University does not imply that they are targeting the religious institution since others have not been punished for the same thing. Others have not been targeted because the Bar has presumably not had to address the issue before. Should another law school encourage the discrimination of different groups of people, as found here, surely they would have their accreditation revoked or not approved. Secondly, there are no exemptions to this law. If there was an exemption to this law for religious law schools, similar to the one found in Burwell v. Hobby Lobby, then nondiscrimination in the legal field is not that compelling of an interest to burden free exercise. Since that is not the case, we believe the principle that a generally applicable law is strengthening proof of a compelling state interest and can be applied here.
Returning to Smith, we noted that exemptions to neutral laws are always in conjunction with a companion right. Before we invalidated the free exercise claims, our holding in Smith could have applied in favor of the University in conjunction with its free speech claims. As we have already nullified the free exercise claims under Sherbert, we focus towards the question of whether the Bar can mandate the halting of the newspaper’s publication. While the Bar is within its authority to condition accreditation on the removal of the discriminatory code, the Bar has violated the free speech of the newspaper and the University by demanding its closure.
The Proclaimer had published articles from students who condemned homosexuality as a sin and questioned the political motives of LGBT advocates. The Bar argues that these student newspaper articles warrant the ceasing of the entire publication in exchange for accreditation. This is folly at best, and tyrannical at worst. The newspaper is a student publication; as a newspaper, it presumably published articles of local news, information about the school, regional or national headlines, as well as the opinion pieces of individual students. It is not solely an outlet for religious views, nor ones that are discriminatory in nature.
The University’s religious belief is that homosexuality is a sin; the implication in forcing its students to adhere to that belief is the possibility of discrimination in the legal practice. Therefore, the Bar had a substantial interest in removing the honor code. However, we cannot fathom why the beliefs of individual students justifies the eliminating of the entire newspaper and removing an important platform for private expression and receiving of information. The difference in the code and the student newspaper is that the code was a forced statement of the University’s beliefs upon students, which would bind students to certain behaviors. The newspaper is not an extension of that adherence to action or idea, for the paper provides other forms of information aside from the religious column, which comes from students. The column itself is the expression of private individuals, not the University. Students may write an article that University officials may disagree with, or may even go against the beliefs of the University. For this purpose, we treat the newspaper as its own entity and differently than the code.
Homosexuality and transgenderism are hotly debated topics in the current public sphere. For many people, there is nothing wrong with being romantically and/or sexually active with a person of the same sex. To others, it is morally wrong for men to have sex with other men or a woman to change to the opposite sex. The government has no right in deciding what ideas are correct or incorrect, even if general society has deemed an idea or a behavior morally repugnant. In Sullivan, we stated that “the constitutional safeguard…‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by people’” (Sullivan, 1964).
That being said, we do not see how the basic understanding of Chaplinsky could not apply here in conjunction with Sullivan. In Chaplinsky, we upheld the arrest of a man who had used ‘fighting words’ to incite an immediate breach of the peace. Surely if an article was written that called for the immediate killing of gays then that “would not cloak him with immunity from the legal consequences for concomitant acts committed in violation of a valid criminal statute” (Chaplinsky, 1942); or if it was written to intentionally speak poorly and inaccurately about an LGBT political activist that Sullivan’s rules for defamation would apply.
But if the articles have merely stated individual student’s beliefs, then there is little justification for attacking the writers, let alone the entire newspaper. The Seventh Circuit was correct in its holding of American Booksellers. There, the Circuit Court held that a city ordinance defining pornography and then engaging in criminal investigations of perceived violations is unconstitutional. Who is to say what pornography is? In this case, who is to say whether homosexuality is right or wrong? We think that nothing in the merits of this case allows us to determine what is or is not right. “Any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us” (American Booksellers, 1986).
The statute enforced by the Bar is a statute to be enforced against action; it is why we hold differently for the honor code. But the statute is being used to target a viewpoint as if it were an incorrect one. This is contrary to our nation’s principles. The role of government is to maintain public order and protect the expression of rights, even when it is morally repulsive and in public. In Synder v. Phelps, we allowed the Westboro Baptist Church to protest the funeral of a veteran, knowing “[t]he church’s congregation believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America’s military” (Snyder, 2011). Here, no matter how disgusting it may seem, viewpoints must be given protection if it is done publicly and peacefully.
This is not to state that a student newspaper organization of a private university was a public forum; the newspaper is a privately circulated publication amongst University staff and students, thereby curbing it to a limited audience. Even if the newspaper is considered a public forum, Snyder holds since the protest there was conducted in a public forum and in a peaceful manner. Whether it is the written or spoken word, these views were expressed peacefully and are afforded protection under Snyder, and do not fall under the exemption provided by Chaplinsky.
What about a governmental interest? As we have established, the Bar has a compelling enough interest in removing the University’s mandate that students adhere to its beliefs, which discriminated against law students. Yet we have also differentiated between the University’s discriminatory mandate and the platform that is the newspaper. In O’Brien, we upheld the conviction of someone who had burned their draft card because the government had a substantial interest in its use of draft cards for Selective Service. The Court stated: “A law prohibiting destruction of Selective Service certificates no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers’ licenses, or a tax law prohibiting the destruction of books and records” (O’Brien, 1968).
The error in applying O’Brien is that the Court also noted that the compelling interest in limiting free speech is justified when “unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest” (O’Brien, 1968). Here, the application of the law is clearly attempting to stifle the expression of an idea. Even if the suppression of the idea were legal, we do not believe eliminating the entire newspaper because of a few students’ individual beliefs is essential to furthering the state interest. Should these students go on to become lawyers who actually commit an act of discrimination while in the legal profession, the Bar is well within their authority to punish those lawyers, but if no action can be found then all that is left is the punishment of a newspaper for a few students’ ideas.
The Bar also contends that under our holding in Claiborne Hardware they are allowed to hold the University as a whole accountable because of the illegal expression by a few of the students. Our holding in Claiborne Hardware stipulated that the organization in question must hold a belief in an illegal act, say believing in the killing of homosexuals. If the organization’s individuals members commit acts in an attempt to further that illegal precept, then the organization could be held accountable. However, the University does not hold beliefs in committing criminal acts. Sure, the University does believe that homosexuality is a sin and prohibits homosexual law students, yet nowhere in that stated belief have they explicitly or implicitly implied the support of a crime of action. Nor have the students committed acts on behalf of the University. The students have merely expressed their opinions in a platform provided by the University that just so happens to align with the University, but not for it.
The current state of the First Amendment is one of difficulty. Technology and the fusion of cultures have brought people together like never before; as a consequence, questions of what is “offensive” speech, the role of religion in a secular, cosmopolitan society, or what is public and what is private continue to place the Court in a difficult position. Just this past term, we decided in Our Lady of Guadalupe that religious schools are exempt from discrimination laws in the hiring and firing of its teachers. Should this apply to all employees of religiously affiliated institutions? Is nondiscrimination a compelling enough interest to burden free exercise in most or all cases? Overall, how the First Amendment is to be applied in the rapidly changing political, economic, and social environments of our society should hardly concern those worried of the watering down or over-expansion of free speech and free exercise. Our judicial system is bound to the common law and takes both history and our contemporary era into consideration, creating a balancing effect in which we believe cases will be rightly decided.
It is entirely possible that upon the nullification of the free exercise claims by the University that the free speech claim could have also been sustained under an interpretation of our holding in Smith. Smith recognized that burdened First Amendment rights may overcome a generally applicable and neutral law if combined with a secondary right. However, we found no immediately recognizable right outside of the freedom of exercise to join the free speech claim. One could have argued property rights under the University’s business, but we do not believe this case is appropriate for a discussion of property rights, more specifically whether a student organization is the property of a University. We further brush aside any inclusion of our holding in Rosenberger, as that dealt with a public university and a student publication’s First Amendment claims against it, rather than the issue here of a private university’s student publication against a public agency.
In the present case, we are faced with two difficult questions that happened to weave together. We understand the implications of our decision upon religious universities, but are confident that two truths can survive parallel to one another. In one corner, the mandatory honor code discriminated against LGBT law students, and the Bar’s interest in nondiscrimination within the legal profession is compelling and neutral enough for it to override the free exercise of the University. On the other hand, conditioning accreditation upon the total abolishing of a private university’s student newspaper is far-fetched and abusive in its treatment of differing viewpoints and does nothing to further the state interest.
For these reasons, the judgment of the Ninth Circuit Court of Appeals in this case is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion. It is so ordered.
Employment Division v. Smith (1990), pg. 1102, The Constitution of the United States, Third Edition, by Michael S. Paulsen, et al.
Braunfield v. Brown (1961)
Reynolds v. United States (1878)
Sherbert v. Verner (1963)
New York Times v. Sullivan (1964), pg. 842, The Constitution of the United States, Third Edition, by Michael S. Paulsen, et al.
Chaplinsky v. New Hampshire (1942), pg. 867, The Constitution of the United States, Third Edition, by Michael S. Paulsen, et al.
American Booksellers Association v. Hudnut (7th Cir. 1986), pg. 950, The Constitution of the United States, Third Edition, by Michael S. Paulsen, et al.
Snyder v. Phelps (2011), pg. 945, The Constitution of the United States, Third Edition, by Michael S. Paulsen, et al.
United States v. O’Brien (1968), pg. 889, The Constitution of the United States, Third Edition, by Michael S. Paulsen, et al.