Taking Which Rights Seriously? Religion, Free Association, Private Property, and Civil Society at Yale

Rick Garnett*

If there is anything we in America know as Americans, it is that we have rights -- and lots of them. But, as Professor Mary Ann Glendon recently argued, there is a down side to our addiction to "rights talk" in moral and political discussion. Although individual rights and their vindication through rule of law are surely the cornerstones of a free society, Professor Glendon and others have warned that our reliance on the increasingly shallow and shrill language of entitlement has desiccated public discourse and shrunk the public square.

Ironically, at the same time we are reducing all moral and political discourse to the common currency of rights, it is less and less clear that we have any idea what we are talking about. Rights are everywhere, but talk is cheap. That is, although political argument today involves little more than rights claims, we do not, to paraphrase Ronald Dworkin, "take rights seriously." After all, if we did take rights seriously, we couldn't possibly think we had so many of them. As Dworkin once observed, rights are, or should be, "trumps." The whole point of a trump card is that it is hard to come by, yet we persist in insisting on everything from a right to express ourselves to a right not to be offended by others' expression. As a result, our resolute invocations of constitutional rights, for all their bombast, cannot pretend to be "trumps." Instead, the most they can aspire to is one more "factor" or "interest" to be run through the wringer of Justice O'Connor's latest five "prong" "balancing test."

Religious faith and obligation, like rights, mean little if they are not taken seriously. It is therefore a sad indictment that, as Rabbi Marc Gellman observed not long ago, the last acceptable prejudice in America is the prejudice against those who take their faith seriously. Rabbi Gellman's statement echoes a theme raised a few years ago in Professor Steven Carter's book, The Culture of Disbelief. Professor Carter observed that elite opinion, as well as, increasingly, constitutional law, tends to treat religious faith as an eccentricity to be tolerated rather than a valuable gift to be cherished by individuals and society alike. In other words, religious faith is and should be regarded as, like tantric yoga, bungee jumping, or train-spotting, an eccentric hobby, a vehicle for individual expression, nothing more.

The tricky problem for right-thinking elites, constitutional scholars, and judges is, what to do with those do not play the post-modern game, those who do not buy their religious texts in the self-actualization section. These people can be quite unnerving to the moderns. Their talk of truth, obligation, and covenant is downright subversive. They claim their faith is not just useful, but true, and this means that different beliefs of others must be, even if useful, false. Thus the inevitable, indignant response: You can't judge me! Hell hath no fury like a tolerant multiculturalist scorned; hence, Rabbi Gellman’s observation.

Exhibit A for Rabbi Gellman, I believe, is the Yale Four lawsuit. Several strictly Orthodox Jewish students have requested, and now demand, exemptions from Yale's mandatory, on-campus, co-educational housing requirement.

Now, one might think that a school whose president once conducted rap sessions with the yippie radicals who took over his office could deal with the radicalism of a few students who would rather not share bathrooms and condom machines members of the opposite sex. Instead, Yale has responded to the students requests by insisting that, given its educational philosophy (and given its financial need to keep the dorms full), it cannot permit these Orthodox Jewish students to deprive themselves of all that co-ed dorm life has to offer.

The Yale Four are smart, and so they have couched their arguments in diversity terms, emphasizing how much they have to add to campus life and urging Yale to show them the same tolerance and respect it showers on so many others who are outside the mainstream. As a result, the students have been chided by some conservatives for imitating those who agitate for multi-cultural goodies like ethnic theme houses, ethnic studies programs, speech codes, and various other forms of campus Balkanization. This comparison is flawed. The Yale students do not claim, "it's an Orthodox thing; you wouldn't understand." They do not want to cut themselves off from their fellows, or to hide in an academic backwater nursing grievances. Quite the contrary, they want to associate with and learn from their peers to the fullest extent possible.

Still, there is this little issue of Divine Law. The Yale Four want to be Yalies, but their covenant with their Creator requires them to be modest Yalies. As St. Thomas More might have said, they are Eli's good students, but God's first.

But the King Henry VIIIs of Yale have little time for this argument, and I suppose Rabbi Gellman could have predicted that the students' claims would be misunderstood, that they would be portrayed as intolerant and as seeking to impose their views on others. The Yale Four, their critics protest, think they are better than the rest of us; they actually believe this stuff! Quick! Bring on the co-ed dorms for a little re-education, Ivy League style!

It is clear, in all of this, that Yale and the students' other critics quite literally do not understand what the Yale Four are talking about and that they do not really know what it means to "take faith seriously." Like many today (including, unfortunately, the United States Supreme Court), when it comes to religion, Yale and its defenders speak only the language of autonomy, choice, individualism, and relativism. Yale is uncomprehending because the students' case and claims are not about their tastes, preferences, or choices at all. It is not enough that the students simply choose to believe immodesty to be wrong, for themselves, or even that they themselves refrain from behaving immodesty. They are called to bear witness to God's law by removing themselves from situations in which such immodesty is prevalent. God has chosen them, not vice-versa. Their case is about obligations that are given, not preferences that are chosen. Orthodox Judaism makes demands, and compliance with these demands inevitably, sometimes, sets adherents apart.

Yale's position, though, rests on the very different but quite common assumption that religious belief, obligation, and commitment reflect only personal lifestyle choices. The religious person is seen as a consumer in the marketplace of self-fulfillment who has surveyed the various happiness-promising options and has, for now, chosen to be a person of faith. Yale, of course, finds these particular students' choice somewhat bizarre. After all, who would choose an ancient and aging, confining, legalistic, ritualistic, paternalistic, and moralistic code as a path to unlocking the mysterious and limitless potential of one's selfhood? Still, in the name of diversity, tolerance, autonomy, and choice, Yale is constrained to -- at least on the surface -- respect, if not accommodate, the students' decision. But the effects of the students' choice do not and should not be permitted to reach beyond themselves, and this choice certainly creates no obligation on Yale's part.

Religion for Yale is entirely solipsistic, and there is a radical distinction between belief and conduct, between faith and practice. Yale can therefore proudly insist in its court papers that it has not compelled the students to believe anything they do not want to believe, or to give up any belief they have chosen to hold. They can, Yale insists, remain as true as they like to Jewish law in their private beliefs. But the notion that the students might have a religious duty to bear witness to modesty and to avoid immodesty, not just to believe that modesty is a good thing, is entirely lost on the administrators of one of our country's finest schools.

But let's turn the tables on the students for a minute. If it is true that Yale specifically and modernity generally fails utterly to take religious faith and the constitutional right to live out that faith seriously, isn't it just as true that the students' case and claims fail just as completely to respect and to "take seriously" Yale's private-property and free-association rights? Hasn't this entire discussion simply assumed the most important and difficult question in the Yale students' case, namely, whether Yale has any legal or even moral obligation to take the students' free-exercise "rights" seriously? After all, rights, properly understood, may be invoked only against the government. Isn't Yale a private school? A private property owner that is free to set conditions on the use of its facilities? A voluntary association that is free to chose the values -- in this case diversity, secularism, and sexual liberation -- around which it will rally? Yes, Yale may be behaving badly, but isn't that Yale's right, just as it is my right to inflict "Beavis and Butthead," rather than PBS, on my house-guests?

These are powerful objections. But Yale can't make them. In fact, I believe that Yale has not only failed to "take seriously" the Orthodox students' faith, but also what it means to be a private actor, a mediating institution, a voluntary association, and a property holder. It is surely true that private associations are fundamental to our civil society. They mediate between the State and the autonomous individual; their health and independence is crucial to the vitality of the public square. Without such institutions -- universities being, ideally, a prime example -- the State expands and the realm of voluntary relations shrinks. So too with the rights of private-property holders: Their autonomy and independence, as our Founders recognized, serve as a check on impersonal and arbitrary collective power. As property rights are more and more thought of by government as mere inconveniences, as impediments to the latest grand plan to remake society in the image of the experts, individual freedom suffers.

But it is Yale, not the students, that has compromised the University's important role in civil society and that is a threat to freedom. It is only because Yale, like so many other large universities, has made its "deal with the devil," accepted -- indeed, clamored for -- ever-increasing amounts of government funding and supervision, and surrendered more and more of its independence as a mediating institution that it is now being required to show the same solicitude for the Orthodox students' religious faith and rights that the government is obliged, by the Constitution, to accord.

Yale has sold out. It wants it both ways -- it wants the benefits of private-property ownership and free-association rights at the same time it (along with many other once-great schools) has utterly abandoned the proper role of the University. In many ways, over many years, Yale traded its place in and obligations to civil society for government aid and support. And it has paid the price in the form of intrusive and stifling government regulation and oversight of everything from the number of lacrosse scholarships to, now, how it treats the members of today's true counter-culture -- those who take religion seriously.

Those who appreciate the importance and constitutional dignity of private-property and free-association rights have nothing to fear from the Yale Four. They should, however, be quite concerned that the expansion of state power, through the spending of public money, threatens to undermine the independence of those institutions on which public life and limited government depend.

*Rick Garnett is an attorney with the Washington law firm of Miller, Cassidy, Larroca & Lewin, which is representing the Yale 4 in the their present litigation against Yale.


2002 The Federalist Society