Gay Rights vs. Religious Rights

May 2, 2008

A federal judge has ruled that the Georgia Institute of Technology had materials in its office to support gay students that amounted to unconstitutional support for some religious groups over others.

The case may have no practical impact at Georgia Tech as the materials in question are already gone. But the legal group that brought the suit and other analysts agree that such materials may well exist at other public colleges and may now become the focus of more scrutiny or legal battles. The Georgia Tech ruling is believed to be the first of its kind.

The ruling came in a case involving a range of issues over speech codes and support for religious groups at Georgia Tech -- issues that mirror those being raised at other public colleges and many of which were resolved in earlier rulings or agreements between the parties in the case. The new part of the ruling, however, focused on a set of materials used in the "Safe Space" program at Georgia Tech, a part of the institute's diversity office designed to support gay and lesbian students.

The case was filed on behalf of two Georgia Tech students, assisted by the Alliance Defense Fund, a legal group that has sued many public colleges accusing them of violating the rights of religious students. The portion of the suit about Safe Space argued that materials at the public university were effectively religious in that they endorsed some faiths over others -- and that these materials were as a result unconstitutional. Judge J. Owen Forrester agreed.

The materials in question dealt with issues that may be faced by religious gay students, or by gay students challenged about the sexuality by people from different faiths. One passage cited in the ruling says that "historically, Biblical passages taken out of context have been used to justify such things as slavery, the inferior status of women, and the persecution of religious minorities." Such attitudes have led some religious groups to declare "that homosexuality is immoral," the group's materials state, while others "have begun to look at sexual relationships in terms of the love, mutual support, commitments and the responsibility of the partners rather than the sex of the individuals involved."

In another section, the materials discuss specific faiths, noting which faiths recognize same-sex unions, and the conditions under which some faiths will ordain gay clergy. While the Episcopal Church is praised as "more receptive to gay worshipers than many other Christian denominations," the Church of Jesus Christ of Latter-day Saints is described as having "the most anti-gay policies of any religion widely practiced in the United States." The section on Roman Catholic belief also notes that some theologians have argued, "much to the embarrassment of the Vatican," that the medieval church recognized unions for same-sex couples.

In his ruling, Judge Forrester noted that Safe Space is not just one among many student groups, but one with close ties -- financial and staffing -- to the university. In this context, he said, it is irrelevant that officials involved in the program stressed that the materials in question had no religious purpose, and were simply motivated by a desire to help students understand the views of different religious groups on questions of sexuality.

Because of the close ties to the university, Judge Forrester said, the issue is the "clear preference of one religion over another contained" in the Safe Space materials, which he said was clearly unconstitutional. The decision ordered Georgia Tech to remove the materials in question.

A statement from the university said that it "disagrees" with the decision, but that it is "moot" because the materials are no longer used by the Safe Space program.

Nate Kellum, a lawyer at the Alliance Defense Fund, said that the issues are not moot elsewhere. While the exact names of programs and the materials they use may vary, "these kinds of things are all over the place," he said, and other public colleges would be well advised to note this week's decision.

Even in other parts of the country, where a ruling by a single federal judge would not be binding, he said, "I think the logic and reasoning would support the idea that this practice is unconstitutional."

A professor making comments in a classroom similar to those in the Safe Space materials would not be unconstitutional, Kellum said, because such statements would not carry the same weight as coming from the institution. He added that his group was not opposed to all services public colleges offer for gay students.

"The problem with this was that the university was denigrating firmly held religious beliefs," he said. The Safe Space materials "held in high regard certain denominations that found no moral implications in homosexual relations, but denigrated those that did find moral implications."

Brian Moulton, a lawyer for the Human Rights Campaign, a national gay rights group, agreed that the Safe Space materials were problematic. He noted that nothing in the decision makes it impossible for a public college to offer programs for gay students, and that the only limitations concern discussion of religion.

The language used in the materials about religions "did very much sound like taking sides," which is "very problematic with public funds."

Others were more critical of the decision. Steve Sanders, a Chicago appellate lawyer and former public university administrator, said that some of the materials at issue "might strike some readers as rather shallow and tendentious," but he added that "I think you have to squint awfully hard to conclude that, as a First Amendment matter, they either denigrate or proselytize on behalf of any particular religious perspective. While the materials may betray a certain political or cultural point of view and we can debate the extent to which universities should be in that business, I think it was something of a stretch for the court to say they amounted to government favoritism toward one set of religious beliefs at the expense of another."

Sanders also noted that "religious activist groups" like those frequently supported by the Alliance Defense Fund "have properly sought to contribute their perspective on homosexuality to the larger market place of ideas" and that these groups "understandably employ religious texts and religious concepts," when they do so. He added that "I read the Georgia Tech Safe Space materials not as a foray into theology for its own sake, but rather as an effort to engage and critique the claims made by anti-gay religious groups."

Sanders said that "some might see it as a bit hypocritical for a religiously partisan group like the Alliance Defense Fund," which says it wants to promote "robust public debate," to "show this sort of hypersensitivity and file a lawsuit when a group like Safe Space criticizes those perspectives." The suit, he added, "raises the suspicion that this isn't so much about having an open and robust debate as it is about using the tools of law to shut down the other side."

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