Let’s start with a story. It began in 2011 when Vanderbilt University issued an ultimatum to religious student groups—affirm the school’s nondiscrimination policy or face expulsion from campus. While the groups universally condemned invidious discrimination (“invidious” is a legal term that means “arbitrary, irrational and not reasonably related to a legitimate purpose”), they did engage in creedal discrimination. In other words, they required their leaders to share the religious beliefs and values of the religious organization.
The university, by contrast, demanded that religious groups open membership and leadership to all-comers, regardless of religious beliefs.
Not only was the policy inconsistently applied (fraternities and sororities didn’t have to open their doors to women and men, respectively), it was nonsensical. Let’s remove the religious dimension for a moment. Should College Republicans be open to Democratic leadership? Should gun control activists be open to leadership by gun enthusiasts? The very notion is absurd.
At the time, I was a full-time religious liberties litigator, but in this instance my role was to advise the ministries, not sue the university. Vanderbilt is a private university, and so we knew that litigation was not only certain to fail, it was a bad idea. Private institutions should be free to fashion policies that comport with their values. If those were the values Vanderbilt wanted to uphold, then it had the right. Our goal was persuade Vanderbilt to respect freedom of association and religious freedom.