On Feb. 6, a local federal judge held that San Diego State University (SDSU) does not have to provide student-supported facilities and services to student groups that discriminate on the basis of religion.

The case began in 2005, but it languished in a local federal court for almost four years while Judge Larry Alan Burns, a George W. Bush appointee, awaited the results of other similar cases. Consequently, it received little media attention, especially given the hoopla surrounding the firefighters’ case. Yet, overall, Judge Burns’ ruling is far more significant than the firefighters’ verdict

The Alliance Defense Fund (ADF), which supports all the anti-gay litigation, aims to challenge college campus nondiscrimination policies. The goal is that religious groups gain access to state funds to produce religious tracts, obtain office space and use student-union facilities to hold religious services. In short, ADF seeks to do what the Constitution forbids: move the church onto state property.

ADF wants to turn SDSU’s Aztec Center, funded completely by student fees, into the “Fundamentalist Christian Spiritual Retreat,” with dozens of religious groups from a variety of denominations occupying conference rooms for prayer services. And it was in this context, in 2005, that a religious student organization applied for on-campus recognition at San Diego State University. The group, Every Nation Campus Ministries at San Diego State University (ENCM), had been a campus presence for some time and had agreed to abide by the California State University policy prohibiting student groups from engaging in bias based, among other things, on religion or sexual orientation. Indeed, such a bias was never apparent, as no non-Christian or GLBT students had sought elective office with ENCM.

Nevertheless, when the group submitted its constitution to SDSU, it restricted membership to “Christians who have professed their faith in the Lord Jesus Christ” and declared that each officer and member must sign an oath endorsing ENCM’s “statement of faith,” which prohibited membership to “individuals who believe they are innately homosexual, or advocate the viewpoint that homosexuality is a natural part of God’s created order.”

Consequently, SDSU denied ENCM recognition in October 2005. ENCM then sued the CSU system, claiming the nondiscrimination policy violated its right to freedom of expressive association.

Judge Burns ruled that the state may restrict benefits (subsidies) to groups that discriminate on the basis of religion.

Ironically, he cited a case involving the city of Berkeley, in which the California Supreme Court denied continued subsidies to the Sea Scouts (associated with Boy Scouts of America) because of its anti-gay policies. It held that Sea Scouts, just like ENCM does, can engage in discriminatory conduct, but cannot expect the state to subsidize it.

Burns also ruled that ENCM is not prevented from using public space at SDSU, just as the Ku Klux Klan (KKK) and other discriminatory groups are not prohibited on campus. However, he said the state does not have to subsidize such groups because their policies have the effect of excluding anyone who does not fall within the purview of their particular beliefs.

More intriguing however, were Judge Burns’ views on ENCM’s policy prohibiting “openly gay” folks. Burns bought ENCM’s view that it does not “discriminate against all gays per se,” only those who view being gay as natural, which of course is nearly all of us. Judge Burns noted that “a practicing homosexual would not be prevented from becoming a member of ENCM so long as he or she viewed homosexual conduct as transgressive of natural law and wanted ENCM’s tenets of sexual morality to sink in.”

He warned, though, that religious groups simply cannot “dodge compliance with nondiscrimination policies, or anti-discrimination law more generally, merely by rebranding an identity requirement as a belief requirement.” Similarly, he noted that the club could not get around discriminating against non-Christians by simply requiring members to “believe a laundry list of things about Jesus Christ and the Bible.”

Of course, this is much like saying the KKK accepts blacks as members so long as they view themselves as inferior to whites and want to become racists. That’s how absurd this part of the judgment is. Because creating a belief system that is wholly contrary to one’s sexual orientation is exactly the same as excluding the entire group.