a statute criminalizing mere “status” of being homosexual would be unconstitutional
How later courts described this case
- a statute criminalizing mere “status” of being homosexual would be unconstitutional
- refusal to allow homosexual student group equal access to state university facilities invalidated because infringement of First Amendment rights to expression and association not supported by any “substantial governmental interest”
- denying gay association’s registration and resulting privileges violated group’s first and fourteenth amendment rights
- university may regulate homosexual conduct of students, or homosexual conduct which substantially disrupts operation and discipline of school
Written by the judges who cited it.
The opinion
MARKEY, Chief Judge,
Court of Customs and Patent Appeals (concurring):
I fully concur in the excellent and admirably succinct opinion of Judge Winter.
It may be useful to add that the case points up the futility of the association-registering process at state-supported institutions of higher education. If continued, it must be conducted in conformance with the First Amendment.
Consistent with the present decision, associations advocating any idea, any change in the law or policy of the general society, are as fully entitled to registration as is the plaintiff. Thus, associations devoted to peaceful advocacy of decriminalization or social acceptance of sadism, euthanasia, masochism, murder, genocide, segregation, master-race theories, gambling, voodoo, and the abolishment of all higher education, to list a few, must be granted registration, upon proper application and indicated compliance with reasonable regulations, if VCU continues to “register” associations.
*168 That registration and recognition of an organization do not imply approval of its aims is, in my view, a fiction. The impression that the aims of registered and recognized associations are at least unobjectionable to university authorities is, of course, one of the reasons plaintiff seeks registration and is the fundamental rationale of defendants in refusing it. I think it clear-that registration and recognition confer a status not enjoyed by unregistered and unrecognized associations. The conferring, withholding, or withdrawal of such status on the basis of the ideas and aims of applicant associations is precisely the action herein held to be constitutionally forbidden.
Thus the registration process cannot be used to aid or to impede the aims or ideas advocated by student associations. Denial or withdrawal of registration is a weak, if not impotent, tool in the university’s exercise of its rightful duty to control conduct. Associations don’t act. People do. Similarly, no association, college, or other institution, per se, has ethics or morals. Only people do. The futility of the registration process is thus illustrated by its non-availability for control of aims and ideas and by its inapplicability to conduct, ethics and morals.
It is of no moment, in First Amendment jurisprudence, that ideas advocated by an association may to some or most of us be abhorrent, even sickening. The stifling of advocacy is even more abhorrent, even more sickening. It rings the death knell of a free society. Once used to stifle “the thought that we hate,” in Holmes’ phrase, it can stifle ideas we love. It signals a lack of faith in people, in its supposition that they are unable to choose in the marketplace of ideas.
As Judge Winter points out, universities have been abandoning the role of parens patriae. Education without values is moribund. Nonetheless, having apparently decided that student associations devoted to advocacy of political, social, legal and other objectives are part of higher education and useful in preparation for later life, the universities must leave the exposition and inculcation of moral and ethical values to parents, the Church, university classes in ethics, the inspiring example of ethical university teachers and administrators, and student associations devoted to advocacy of those values. It cannot inculcate values by unlawfully impeding the exercise of a fundamental value, the right to speak.