The Battle of the Dianes
The Seventh Circuit Court of Appeals (my circuit) delivered an interesting opinion regarding religious liberty, the First Amendment, and university student groups. The three judge panel divided 2-1, with Judge Diane Sykes writing for the majority. The case concerns a student group, the Christian Legal Society, at the Southern Illinois University School of Law. The dean revoked their official status, thus taking away funding, access to student e-mail directories, rooms for private meetings, etc. CLS had rules that demanded that their officers live by a certain code of conduct, one that would preclude anyone who was openly and actively homosexual (you could be gay and serve as an officer if you didn't engage in any non-Bible approved sexual activity and repented for any past buggery). The dean received a complaint about this and revoke their status, stating that the group was violating the Affirmative Action/Equal Employment Opportunity Policy and an SIU Board of Trustees policy. CLS filed suit and asked for an injunction to restore their status while the lawsuits worked their way through the courts. The district court denied the injunction, and the case was appealed.
Writing for herself and Judge Kanne, Judge Sykes stated that the district court erred in not issuing the injunction. A distinction was made between CLS restricting its officers based on conduct, rather than orientation. CLS's policies would preclude anyone who engaged in non-Bible approved sexual conduct, that includes heterosexual sex before marriage.
Judge Sykes also believes that CLS was likely to succeed (one of the prongs involved in getting an injunction) based on their expressive association and free speech claims. The expressive association analysis includes those old favorites Boy Scouts of America v Dale (the gay scoutmaster case) and Hurley v Irish-American Gay, Lesbian, & Bisexual Group of Boston (the St. Patrick's Day parade case). Judge Sykes states...
Judge Diane Wood writes the dissent here. She states that the factual record is lacking in much needed detail (a claim which was echoed by the majority). Judge Wood presents a list of honestly important questions about the facts that have not been addressed (to my knowledge, I haven't looked at the briefs or the district court record). Judge Wood then states that appeals courts should not second guess the lower courts if the facts of the case are as close as they are here. She also takes issue with the majority and their analysis of the conduct v. orientation claim. She even cites Lawrence v Texas.
I honestly like Judge Wood. She's a Clinton appointee, but she still an incredibly sharp judge. I saw her on a panel with Judge Easterbrook once, and she managed to keep up with him and hold her own in the discussion. They are both big antitrust nerds (she served in the DoJ division) and both taught at the University of Chicago. She'd be a great Supreme Court pick for a Democratic president.
I also like Judge Sykes, which shouldn't be a secret to readers of this blog. I think that this decision only makes her stock rise for a potential Supreme Court nomination. Religious liberty has become a big issue with many folks on the Right in the last decade or so. If the White House gets another vacancy in the next two and a half years and they want to appoint a woman, Judge Sykes will be high on the short list.
Writing for herself and Judge Kanne, Judge Sykes stated that the district court erred in not issuing the injunction. A distinction was made between CLS restricting its officers based on conduct, rather than orientation. CLS's policies would preclude anyone who engaged in non-Bible approved sexual conduct, that includes heterosexual sex before marriage.
Judge Sykes also believes that CLS was likely to succeed (one of the prongs involved in getting an injunction) based on their expressive association and free speech claims. The expressive association analysis includes those old favorites Boy Scouts of America v Dale (the gay scoutmaster case) and Hurley v Irish-American Gay, Lesbian, & Bisexual Group of Boston (the St. Patrick's Day parade case). Judge Sykes states...
It would be difficult for CLS to sincerely and effectively convey a message of disapproval for certain types of conduct it, at the same time, it must accept members who engage in that conduct. CLS's beliefs about sexual morality are among its defining values; forcing it to accept as members those who engage in or approve of homosexual conduct would cause the group as it currently identifies itself to cease to exist. We have no difficulty in concluding that SIU's application of its nondiscrimination policies in this way burdens CLS's ability to express its ideas.Judge Sykes also states that SIU is not applying its policies to all groups...
The Muslim Students' Association, for example, limits membership to Muslims. Similarly, membership in the Adventist Campus Ministries is limited to those "professing Seventh Day Adventist Faith, and all other students who are interested in studying the Holy Bible and applying its principles." Membership in the Young Women's Coalition is for women only, though regardless of their race, color, creed, religion, ethnicity, sexual orientation, or physical ability. There are other examples, but we need not cite them all.Just so you know, MULS has an Association for Women in Law. Guys can join though. I think they just want the dues.
Judge Diane Wood writes the dissent here. She states that the factual record is lacking in much needed detail (a claim which was echoed by the majority). Judge Wood presents a list of honestly important questions about the facts that have not been addressed (to my knowledge, I haven't looked at the briefs or the district court record). Judge Wood then states that appeals courts should not second guess the lower courts if the facts of the case are as close as they are here. She also takes issue with the majority and their analysis of the conduct v. orientation claim. She even cites Lawrence v Texas.
I honestly like Judge Wood. She's a Clinton appointee, but she still an incredibly sharp judge. I saw her on a panel with Judge Easterbrook once, and she managed to keep up with him and hold her own in the discussion. They are both big antitrust nerds (she served in the DoJ division) and both taught at the University of Chicago. She'd be a great Supreme Court pick for a Democratic president.
I also like Judge Sykes, which shouldn't be a secret to readers of this blog. I think that this decision only makes her stock rise for a potential Supreme Court nomination. Religious liberty has become a big issue with many folks on the Right in the last decade or so. If the White House gets another vacancy in the next two and a half years and they want to appoint a woman, Judge Sykes will be high on the short list.
