As we get deeper into the 1997-1998 term of the Supreme Court, we see a docket far less exciting than that of last term, when cases concerning assisted suicide, religious liberty, and state aid to children in religious schools riveted our attention. Some interesting cases have disappeared from the docket because the Court has declined to review them: others, such as penalizing picketing by pro-lifers, though of major importance, are likely already doomed by prior adverse rulings.
A potentially momentous decision on affirmative action was averted when a school district that had terminated a white public school teacher to hire a similarly qualified black teacher was settled out of court. Possibly to be heard and just now on the Supreme Court docket is the California term limits case (see Constitution Watch, December 1997). Pending also is an appeal from a New York court’s decision holding that the First Amendment’s free exercise clause does not bar civil court jurisdiction in cases charging a diocese with negligence in supervising priests with an alleged propensity to child sexual abuse.
In subsequent Watches, we can get to these and to whatever the Court may delight, outrage, or astonish us with in disposing of them. But big show that it is, the Supreme Court is not the only show in town. The Constitution is constantly being questioned (and sometimes even well propounded) in other forums throughout the land. As we avert our eyes from occasional bad or excessive decisions by the Court, we continue to cling to hope for conversions in the thinking of its members. That may come about, on one vital issue or another, through the good decisions of lower courts, in cases whose facts and rational opinions should make a favorable decision virtually inevitable. A case now filed in the U.S. District Court at Hartford, Connecticut, may serve as a good example of this.
When I first heard about this case I felt suddenly as if I were living in 1958. The story told of four unmarried students at Yale who had publicly protested a dormitory regulation requiring them to live in the University’s coeducational housing. In these facilities, the four would have “regular or repeated exposure to members of the opposite sex undressed or dressed immodestly.” In these dormitories, they continued, all common areas, including bathrooms, are “easily accessible to members of the opposite sex.” They stated that “promiscuous and casual sex, cohabitation by unmarried members of the opposite sex, and sexual immodesty are practiced in the Yale dormitories and are tolerated.” Forcing the four protesting students to reside in such dormitories violated their religious requirements of “strict adherence to a code of sexual modesty.” My 1958 mindset would have caused me to think: “Great! Those Catholic kids are standing up for their faith!” But this is 1997, and the students are not Catholic. They are Orthodox Jews, and their unavailing protest to university officials has prompted them to sue.
Their case, even before its further development in the courts, points our attention to three interrelated areas: the nation’s culture, the bearing of public witness to religious faith, and the Constitution.
As to our culture, John Paul II description of it as a “culture of death” is becoming almost hackneyed among orthodox Catholics. We keep repeating the phrase, but the larger portion of American society just doesn’t get it (and likely won’t until the social cataclysm to which it points is thrust upon us.) The much bruited “sexual revolution,” which so contributes to the death culture, is now more regime than revolt. Fornication is no longer exceptional but widely accepted. The suit of the Yale Orthodox Jews is therefore startling. It has to do with chastity (of all things!) and chastity’s sacred character. By implication it points an accusing finger at the licentiousness to which abortion, divorce, and so many other cultural ills are related.
But the students in question have, in fact, pointed no fingers. They have simply borne witness to their religious faith—heroic witness, I think. Theirs has not been a popular cause at Yale. Students of other faiths have not rallied to their support. The Yale chaplain’s office told me that “just the four Orthodox Jews” had protested the university’s policy. Non-Orthodox Jews have not appeared in the matter. Neither ADL nor ACLU have been heard from. The Yale Catholic chaplain’s office told me that it was unaware of any Catholic protest of the university’s policy. Alone among religious organizations, the ever perceptive Catholic League for Religious and Civil Rights has now filed a friend-of-the-court brief on behalf of the Orthodox students.
Yes, their case is a public commentary on the culture and a manifestation of courageous religious witnessing. But what about the constitutional claims the students assert? Chief among them are two: one is violation of their right to freedom of association, or being forced into a situation that reflects “a moral ideology regarding-sexuality.” Students are told by Yale to expect the expression of that ideology and to tolerate it as part of their on-campus living experience. And they may find themselves, on occasion, “sexiles,” banished from their dorm rooms because a roommate is engaging in sex. Freedom of association, described by Tocqueville as an “inalienable” right, includes not only the right to associate but a right against being mustered into association wholly offensive to other fundamental liberties one may have. It is hard to imagine a more striking example of the abrogation of this right than in the Yale case.
One such basic liberty of the protesting students is that of the same privacy that the Court has long held to attach to one’s household. As Justice John M. Harlan put it in 1984, “If the physical curtilage of the home is protected, it is surely as a result of solicitude to protect the privacies of life within.” The Yale dormitories in question are, though momentarily, the substitute homes of students. It is preposterous to claim that the protesters’ privacy may be preserved by merely averting their eyes or—worse—that Yale’s subservience to “diversity” requires these students to be exposed to perversity.
The second basic Constitutional claim in the students’ case is that of free exercise. The facts even as we have summarily stated them establish a grave offense by Yale to their religious liberty. But the free exercise clause protects religious liberty only against actions by government and never when those action are “religiously neutral.” Is not Yale’s policy “religiously neutral”? Yale insists that it is, pointing out that the university has not singled out Orthodox Jews or their beliefs and practices for restriction. This narrow interpretation of neutrality has a dangerous significance. If upheld by the courts, it means that religious liberty can never be said to be threatened by governmental action unless government actually names a religious group as its object or expressly targets a particular religious practice. Unhappily, since 1990, the Supreme Court has allowed that conclusion to be assumed. Should the Yale students’ case reach that Court, the Court will have both the opportunity and the urgent need to correct that assumption. Nothing would seem more obvious than that a regulation that is religiously neutral on its face may, in its application, gravely offend religion.
Yale, however, contends that, irrespective of any such issue, it is a private institution, and hence not subject to the restrictions that the First Amendment places on governmental actions. This contention poses a possible obstacle to the students’ success in their lawsuit. They answer it by pointing to two things: that Yale is a major beneficiary of state and federal financial assistance and that Yale has long had tight interlocking legal relationships with the state of Connecticut. The students’ brief summarizes those, with a culminating conclusion that those relationships show Yale to be an instrumentality and agent of the state, subject to the restrictions of the First Amendment. All of this will involve important matters of proof as the case advances in the courts. If the courts find Yale to be a private institution and deny legal relief to the students, the university will have won a victory for secularist liberalism at its worst—too limited in mentality to admit of gracious accommodation, too authoritarian to tolerate difference.