Recent court cases at such schools as Tufts University and Purdue University have pitted Christian student organizations against university non-discrimination policies that include sexual orientation. Compliance with these policies is a requirement for groups wishing to be recognized by their university and receive funding or use campus space. However, conflicting Constitutional rights gives these refusals weight.

Sexual orientation first became a protected category in a non-discrimination policy at the University of Iowa in 1996. Since then, it has become a frequently challenged aspect of non-discrimination policies.

In 2000 at Tufts University in Medford, Mass., the Tufts University Christian Fellowship had its university recognition temporarily revoked when it decided to deny a lesbian student a position in its leadership. This past spring at Purdue University in West Lafayette, Ind., members of Stewart Cooperative housing, an all female Christian house, refused to sign the university’s non-discrimination policy. Purdue’s independent student newspaper, The Exponent, reported in May that this policy was a problem for Stewart because it “prohibited discrimination on matters of faith and sexual orientation.” In both cases, the universities yielded to public pressure and the efforts of groups such as the Alliance Defense Fund, a legal defense group that seeks to “defend?religious liberty” and the Foundation for Individual Rights in Education.

Both the Stewart Cooperative and TUCF were permitted to continue to discriminate against sexual and gender minorities in their organizations as well as receive university recognition because their opposition to the non-discrimination policies was based on religious beliefs.

The legal challenges to non-discrimination policies stem from tensions between the First and Fourteenth Amendments of the U.S. Constitution. While the freedoms of religion and assembly are protected by the First Amendment, equal protection under the law is protected by the Fourteenth Amendment.

Organizations such as Alpha Iota Omega, the UNC group continuing this wave of challenges to non-discrimination policies, contend that their First Amendment rights should trump any attempts to ensure the application of the Fourteenth Amendment.

The U.S. Supreme Court ruled in Boy Scouts of America v. Dale in 2000 that the Boy Scouts were a private organization and could thus define membership however they chose. Because they were a private organization and had the right of freedom of assembly under the First Amendment, they could continue to use designated public forums such as public school facilities. However, the 1996 Romer v. Evans case used the Fourteenth Amendment to strike down a law that would have prohibited any legal protections based on an LGBTIQ identity.

Interim Vice Chancellor for Student Affairs Dean Bresciani was quoted from an internal e-mail in The Daily Tar Heel describing the current conflict as “the problem, of course, being that we’re trying to solve an ethical dilemma with a legal solution? Square peg, round hole.”