Monday, April 15, 2019

Yale Law School, Ted Cruz, and Religious "Liberty" Run Amok

By Eric Segall

After students at Yale Law School protested the speaking engagement of a lawyer working for the ultra-conservative, non-profit legal organization Alliance Defending Freedom, Yale announced a new policy regarding which organizations may access some of Yale's vast resources. This policy applies to employers that take into account “religion,” “religious creed,” “gender identity” or “gender expression,” among other factors during their hiring practices. According to Dean Heather Gerken, Yale will "not financially support employment positions unless they [are] open to all of our students, including members of the LGBT community." 

This decision is completely within Yale's rights and should be applauded by everyone in favor of equal rights (I have no connection to Yale Law School).

Nonetheless, the religious community responded with outrage that this policy might affect some religious organizations that don't hire gays and lesbians. This discontent led Senator Ted Cruz, always willing to bend truth to serve his own political agenda, to issue an extraordinary letter to Yale Law School, which accuses Yale of adopting a "transparently discriminatory policy: namely, that Yale will no longer provide any stipends or loan repayments for students serving in organizations professing traditional Christian views or adhering to traditional sexual ethics." 

This accusation is totally false. Yale does no such thing but simply denies its funds to any organization that refuses to hire gays and lesbians (or other protected groups). Again, according to Dean Gerken, "our policy does not single out any student based on religion. Nor does it single out any organization based on ideology, litigation strategy, or political goals. Instead, it is designed to protect all students — including the many Christians and other people of faith among our students and alumni." 

Cruz also made this demonstrably false statement: "Federal civil rights laws prohibit discrimination based on religious faith. As a recipient of federal funds, Yale is obligated to comply with these protections." Yale as an employer is bound in its employment decisions by federal civil rights laws, but there is no federal law tying federal funds received by educational institutions to a ban on religious discrimination (otherwise private religious schools which prefer students of a particular faith could not receive such funds). According to the Department of Education's own civil rights website: "The civil rights laws enforced by the U.S. Department of Education’s Office for Civil Rights (OCR) protect all students, regardless of religious identity, from discrimination on the basis of race, color, national origin, sex, disability, and age. None of the laws that OCR enforces expressly address religious discrimination.The reality is that, as a matter of federal law, Yale is free to engage in religious discrimination (although it doesn't and shouldn't) outside its hiring, firing, and promotion policies.

All of this would be just another example of the culture wars without any serious legal consequences except for one thing. In his letter, Cruz announced that the "Senate Judiciary Committee's Sub-Committee on the Constitution" was launching "an investigation" into Yale's policies and demanded that Yale retain "all documents, information and electronic media" related to eight long paragraphs of materials relating to numerous Yale policies and events, some only tangentially related to Yale's anti-discrimination policies. This is heavy-handed government intimidation all in the purported service of "religious liberty."

Yale Law School is perfectly free to deny its resources to any employer who refuses to hire gays and lesbians. The fact that some "Christian" employers, in Cruz's words, may believe in "traditional Christian views," or "traditional sexual ethics," does not change that fact. Equally importantly, Yale should not allow employers who won't hire gays and lesbians to benefit from its abundant economic resources. Discrimination based on faith is still discrimination, and no less ugly, and that applies to discrimination against religious groups as well, as long as they don't discriminate on the basis of sexual orientation. If they do, they are excluded not because they are religious, but because of their discriminatory policies.

Of course, the law should not and does not require churches, synagogues, mosques, or temples to hire people outside of their faiths to perform jobs related to faith, and quite possibly that exemption should be extended to all employment decisions made by religious institutions. In fact, the Supreme Court has come close to that position in construing the religion clauses of the First Amendment. But that reality is a far cry from condoning (much less legally sanctioning) organizations other than churches, synagogues, mosques, and temples from discriminating against gays, lesbians or other groups. Those kind of organizations should be bound by religiously neutral anti-discrimination laws regardless of the personal religious views of the people who run those organizations. For example, the hiring practices of the Alliance Defending Freedom, and I have no idea what they are, should be limited by the same laws that apply to all other employers. 

I do feel compelled, however, to observe that Alliance's employees must sign a statement "in which they affirm—among other principles—the Christian sexual ethic. This ethic teaches that “all forms of sexual immorality (including adultery, fornication, homosexual behavior, polygamy, polyandry, bestiality, incest, pornography, and acting upon any disagreement with one’s biological sex) are sinful and offensive to God.”  If the Alliance doesn't hire gays and lesbians on the basis of this policy, Yale should not extend its resources to them.

It is beyond all reason to suggest that a private university must cater to employers that refuse to hire a subset of its students based on race, gender, religion or sexual orientation, which is the only policy that Yale announced. As Dean Gerken explained: "Our policy is rooted in both basic American values and the values of the legal profession. The American Bar Association calls upon law schools to protect their students from discrimination, including discrimination based on sexual orientation. Indeed, a law school cannot be accredited by the ABA without taking steps to prevent discrimination based on sexual orientation. As a result, law schools across the country forbid employers from on-campus recruiting if they do not comply with nondiscrimination policies that mirror Yale’s."

Ted Cruz, the GOP, and many conservatives equate discrimination against gays and lesbians with religious liberty, just as many racists in the 1950's and 1960's justified segregation based on their religious values. As true today as it was then, religious values should not justify discrimination outside the internal practices of churches, synagogues, mosques, and temples. But even if all of that is subject to reasonable debate, Yale, a private institution, is under no legal or moral obligation to allow discriminatory organizations to access its own resources. One would have thought that an alleged libertarian like Ted Cruz would understand that core principle instead of bringing the heavy hand of the federal governmental into Yale's internal affairs.