536 A.2d 1 (D.C. 1987), 84-50, Gay Rights Coalition of Georgetown University Law Center v. Georgetown University

Docket Nº:84-50, 84-51.
Citation:536 A.2d 1
Party Name:GAY RIGHTS COALITION OF GEORGETOWN UNIVERSITY LAW CENTER, et al., Appellants, and District of Columbia, Intervenor-Appellant, v. GEORGETOWN UNIVERSITY, et al., Appellees.
Case Date:November 20, 1987
Court:Court of Appeals of Columbia District

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536 A.2d 1 (D.C. 1987)


District of Columbia, Intervenor-Appellant,



Nos. 84-50, 84-51.

Court of Appeals of Columbia District

November 20, 1987

Argued en banc Oct. 16, 1985.

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[Copyrighted Material Omitted]

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Michele A. Zavos and Jane L. Dolkart, Washington, D.C., filed an amicus curiae brief for the Women's Legal Defense Fund, Center for Constitutional Rights, Equal Rights Advocates and Lesbian Rights

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Project, Law Ass'n for Women of George Washington University, Nat. Women's Political Caucus, Wider Opportunities for Women, and Women's Law Collective of Columbus School of Law at Catholic University, on behalf of appellants.

Arthur B. Spitzer, Washington, D.C., filed an amicus curiae brief, on behalf of appellees.

Elliot P. Hoffman, New York City, filed an amicus curiae brief for the Nat. Jewish Com'n on Law and Public Affairs (COLPA), on behalf of appellees.

J. Curtis Herge and George V. Biondi, McLean, Va., filed an amicus curiae brief for the Coalition for Religious Freedom, on behalf of appellees.

Richard A. Gross, with whom John F. Daly, Laura A. Foggan, Washington, D.C., Ronald E. Bogard, New York City, and Carol J. Jennings, were on brief, for appellants.

Charles H. Wilson, with whom Vincent J. Fuller, Nancy F. Preiss, and James C. Gregg, Washington, D.C., were on brief, for appellees.

Lutz Alexander Prager, Asst. Deputy Corp. Counsel, with whom Inez Smith Reid, Corp. Counsel at the time the brief was filed, John H. Suda, Principal Deputy Corp. Counsel, at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on brief, for intervenor-appellant.

Shelley J. Gaylord, Madison, Wis., filed an amicus curiae brief for the Governor's Council on Lesbian and Gay Issues, State of Wisconsin, on behalf of appellants.

Burt Neuborne, New York City, and Gilbert Gaynor, filed an amicus curiae brief for the American Civil Liberties Union, on behalf of appellants.

Douglas N. Jewett, City Atty., Seattle, Wash., and Marlaina Kiner, Director of Human Rights, filed an amicus curiae brief for the City of Seattle, Washington, on behalf of appellants.

Charles J. Ogletree, filed an amicus curiae brief for Div. 5: Criminal Law and Individual Rights of the District of Columbia Bar, on behalf of appellants.

Abby R. Rubenfeld, Nashville, Tenn., filed an amicus curiae brief for the Lambda Legal Defense & Educ. Fund, on behalf of appellants.

Before PRYOR, Chief Judge, and MACK, NEWMAN, FERREN, BELSON and TERRY, Associate Judges, and NEBEKER, [*] Associate Judge, Retired.

MACK, Associate Judge:

In the District of Columbia, the Human Rights Act prohibits an educational institution from discriminating against any individual on the basis of his or her sexual orientation. [1] Two student gay rights groups contend that Georgetown University violated this statutory command by refusing to grant them "University Recognition" together with equal access to the additional facilities and services that status entails. The University, relying on the trial court's factual finding that Georgetown's grant of "University Recognition" includes a religiously guided "endorsement" of the recipient student group, responds

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that the Free Exercise Clause of the First Amendment protects it from official compulsion to "endorse" an organization which challenges its religious tenets. Upholding the asserted constitutional defense, the trial court entered judgment in favor of Georgetown. The student groups appeal.

Our analysis of the issues differs from that of the trial court. At the outset, we sever the artificial connection between the "endorsement" and the tangible benefits contained in Georgetown's scheme of "University Recognition." With respect to the University's refusal to grant the status of "University Recognition," we do not reach Georgetown's constitutional defense. Contrary to the trial court's understanding, the Human Rights Act does not require one private actor to "endorse" another. Thus, Georgetown's denial of "University Recognition"--in this case a status carrying an intangible "endorsement"--does not violate the statute. Although affirming the trial court's entry of judgment for the University on that point, we do so on statutory rather than constitutional grounds.

We reach a contrary conclusion with respect to the tangible benefits that accompany "University Recognition." While the Human Rights Act does not seek to compel uniformity in philosophical attitudes by force of law, it does require equal treatment. Equality of treatment in educational institutions is concretely measured by nondiscriminatory provision of access to "facilities and services." D.C. Code § 1-2520 (1987). Unlike the "endorsement," the various additional tangible benefits that accompany a grant of "University Recognition" are "facilities and services." As such, they must be made equally available, without regard to sexual orientation or to any other characteristic unrelated to individual merit. Georgetown's refusal to provide tangible benefits without regard to sexual orientation violated the Human Rights Act. To that extent only, we consider the merits of Georgetown's free exercise defense. On that issue we hold that the District of Columbia's compelling interest in the eradication of sexual orientation discrimination outweighs any burden imposed upon Georgetown's exercise of religion by the forced equal provision of tangible benefits.

Thus, on statutory rather than constitutional grounds, we affirm the trial court's conclusion that Georgetown need not grant "University Recognition" to--and thereby "endorse"--the student groups. The Human Rights Act does, however, mandate that the student groups be given equal access to any additional "facilities and services" triggered by that status. Georgetown's asserted free exercise defense does not overcome the Human Rights Act's edict that the tangible benefits be distributed without regard to sexual orientation. We affirm in part, reverse in part, and order the trial court to enter judgment accordingly. [2]



A. Georgetown University

In 1789, the year in which the Constitution was ratified and the federal government created, Georgetown University was established. Its founder was John Carroll, a Jesuit priest, a friend of George Washington and later, as Bishop of Baltimore, the first Roman Catholic prelate in the nation. "On this academy," he declared, "rests all my hope for the flourishing of our holy religion in the United States."

In 1805 Georgetown College, as it was then known, was formally committed to the control and guidance of the Society of Jesus.

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[3] In 1815, Congress bestowed on Georgetown College the first university charter to be granted by the federal government. Act of March 1, 1815, 6 Stat. 152. This charter was signed by James Madison as president of the United States. By decree of the Holy See in 1833, Georgetown College was given the status of a Pontifical University. This grant from the Pope empowered the University to confer the highest ecclesiastical degrees in Philosophy and Sacred Theology. To this day, Georgetown remains one of only two universities in the nation with this distinction. In 1844, Georgetown College was incorporated by a special Act of Congress. Act of June 10, 1844, 6 Stat. 912. Its charter was amended in 1966 to allow it to operate as a nonprofit corporation and to adopt the name Georgetown University. Act of Oct. 4, 1966, Pub. L. No. 89-631, 80 Stat. 877.

Today, approaching the bicentennial it shares with the ratification of our Constitution, the college Carroll founded on the banks of the Potomac is a major private, co-educational university and the oldest Roman Catholic institution of higher learning in the United States. Its enrollment consists of roughly 10,000 students in several undergraduate, graduate and professional schools. Georgetown University also runs a hospital and sponsors research institutes and other educational endeavors.

B. Georgetown's Religious Tradition

Through two centuries of growth, Georgetown University has been guided by the religious hope of its founder, John Carroll. All of its forty-six presidents have been Roman Catholic clergymen. On four occasions, the University has been headed by a bishop. In particular, Georgetown has continued a close relationship with the Jesuits. Since about 1825, without exception, members of that order have filled the presidential office.

At trial, Reverend Timothy S. Healy, S.J., Georgetown's president and a defendant in this case, testified that "until 1969 the general understanding was that the Society of Jesus owned the University and its property." In that year, the president and directors of Georgetown University signed an agreement with its Jesuit Community. With a few exceptions, the Jesuits relinquished their rights to University property. They also undertook to make periodic contributions to the University. Other provisions of the 1969 agreement sought to "guarantee the continued and effective presence of the Jesuits at Georgetown University." Among these were promises by the Jesuit Community to make themselves available for religious services, residential duties and teaching positions, and to take steps to ensure that highly qualified members of their order be assigned to the campus community. The agreement specified the desirability, "in order to preserve the Jesuit traditions of Georgetown University," that the University president be a member of the Society. Without confining...

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