Sometimes a legislature doesn't understand what it's doing. But it takes genuine stupidity for a legislature to do the exact opposite of what it intended. Yet that's what the Arizona legislature appears to have done.
The right-wingers who run Arizona seem to have been trying to get around the Supreme Court's ruling in CLS v. Martinez that refused to require public colleges to recognize anti-gay religious student groups that discriminate based on belief and prohibit anyone who isn't homophobic from running for a leadership position. Unfortunately for the conservatives, the wording of the Arizona law itself doesn't do this. In fact, the law does the exact opposite and requires colleges to enforce the non-discrimination rules for student groups that CLS v. Martinez merely permitted universities to follow. That's because the law doesn't explicitly declare that discriminatory student groups are allowed. By contrast, the law explicitly bans religious discrimination: “A university or community college shall not discriminate against a student on the basis of the student's religious viewpoint, expression or belief.” Since being banned from a student group is a form of punishment, no student organization at a public college can discriminate based on religious beliefs.
Here's what the law requires under 15-1863 B, “A religious or political student organization may determine that ordering the organization's internal affairs, selecting the organization's leaders and members, defining the organization's doctrines and resolving the organization's disputes are in furtherance of the organization's religious or political mission and that only persons committed to that mission should conduct such activities.”
That's all quite lovely. But let's go through this carefully:
“ordering the organization's internal affairs”: this doesn't really mean anything, since student groups always get to order their internal affairs.
“selecting the organization's leaders and members”: selecting leaders is non-controversial. No one opposes letting students in a group select their leaders. The only issue in CLS v. Martinez was banning certain people from running for election because of their views, which this doesn't change. Selecting members is a much more controversial issues, since student groups normally don't get to select their members. But remember, they would only be able to exclude members based on the commitment to the group's mission, not based on their religious views. A student can be committed to a group's mission without agreeing to every belief espoused by the group.
“defining the organization's doctrines”: again, nothing controversial here, student groups always get to define their doctrines.
“resolving the organization's disputes”: This is a troublesome clause because it makes absolutely no sense to say that organizational disputes should be resolved by people in the group committed to the mission of the group. Such organizational disputes are between people in the group who almost invariably claim to be committed to the mission of the group, and therefore must be resolved by the administration.
So, the Arizona legislature was afraid to be honest about what conservatives want on campus: discriminatory religious student groups. As a result, they passed a law that failed to impose this on colleges.
In fact, another provision of the same law does the exact opposite. According to 15-1862 A, “A university or community college shall not discriminate against a student on the basis of the student's religious viewpoint, expression or belief.”
The key question is, can a student's exclusion from a student group be regarded as a form of penalty? The answer, I believe, must be “yes.” If a university decreed that a student could not participate in a student group because of his or her views, it would clearly be regarded as a punishment that could not be allowed without evidence of wrongdoing. If a student organization makes the same decree banning certain students from the student group, it must also be regarded as a penalty. The reason is simple: legally, student groups are legally a subset of the university, and the university has certain legal responsibilities for their actions as a student organization.
If exclusion from a student group based on their religious views is a form of punishment, then it cannot be allowed. All student groups must allow anyone to join, regardless of their religious views.
It could be argued, I suppose, that Section 15-1863 B was intended to be an exception to 15-1862 A, and therefore supersedes it. This is a difficult argument to make. Normally, the provisions in a particular law are held equal. Section 15-1863 B include numerous new rules that protect the rights of student groups, and nothing in them is really incompatible with 15-1862 A. There have been some baseless fears that anti-discrimination rules might be used to overturn the decisions of students in religious student groups, and 15-1863 B would resolve that. All that 15-1862 A does is take away the discretion of college administrators to allow discriminatory student groups, which isn't incompatible at all with 15-1863 B.
It could also be argued that Arizona legislators had a clear intent to allow discriminatory religious student groups on college campuses, despite their failure to pass a law doing this. I don't share this view of the law. The law is what it says. I don't care if Arizona's legislators, like many people, misunderstood the Supreme Court's ruling in CLS v. Martinez and don't understand what religious freedom means.
The law is what it says. And in Arizona, the law says that students at public colleges cannot face discrimination based on their religious views, and that must include participation in student organizations.
Crossposted at DailyKos.