State senators voted Wednesday to let student clubs at universities and community colleges refuse to admit members who do not share their beliefs and still get official recognition and funding.
HB 2565 bars these government-run schools from discriminating against students on the basis of that person's religious viewpoint, expression or belief. And it bars the schools from adopting any policy penalizing a student for those beliefs.
But the key provision allows any religious or political club to determine its own internal affairs.
That specifically includes determining members and leaders and what the religious or political mission is of the organization. And it spells out that these clubs can decide that "only those persons committed to that mission should conduct those activities."
Sen. Steve Gallardo, D-Phoenix, said that's code for discrimination.
To make his point, he asked Sen. Steve Smith, R-Maricopa, if that would allow a Catholic student club to exclude Jews. Smith said it depends on the bylaws of the Catholic group.
"I guess if they firmly believe in the bylaws, they could," Smith said. "I don't think a person who is not part of that religion would even want to join that group unless they adhere to the bylaws, which means you must believe what they stand for."
Gallardo pushed the point, asking what would happen if a Catholic club sought to exclude gays.
"If there's a stipulation in the bylaws relating to homosexuality that person does or does not agree with, I would recommend that person not join the group and start their own group," Smith said.
Sen. Nancy Barto, R-Phoenix, argued during floor debate the legislation simply supports the idea of freedom of association.
"Students who do not share the same beliefs are not being discriminated against," she said. "They are free to join a group who do share their beliefs."
Barto said that's a proper form of discrimination "just as the wine and cheese club is discriminating against alcoholics and the lactose intolerant."
But Sen. Kyrsten Sinema, D-Phoenix, said this is not simply that clubs of like-minded people are forming.
"This legislation not only allows the organization to do that, but also allows them to continue receiving funding under the school's student program," she said. "And that's concerning because that means tax dollars are specifically being used to fund one religious viewpoint."
In 2004 the Christian Legal Society, made up of law students, filed suit against Arizona State University after the group was denied official recognition because it refused to accept members who were not Christians.
Similar legal fights broke out across the country. But the U.S. Supreme Court, in a 5-4 ruling last year, said that the University of California was not required to fund a Christian Legal Society chapter that would not admit gay students. The majority concluded that public universities had a constitutional right to require that, in exchange for funding, the clubs accept all students.
But the justices left open the possibility that the club could argue that the accept-all-applicants policy was a pretext for discriminating against religious viewpoints.
In Arizona, the policies against discrimination by university-recognized clubs remain.
"A university-recognized student organization cannot discriminate," explained Tom Bauer, spokesman for Northern Arizona University. "There are some honor societies where you have to have a certain grade-point average. But if you're talking about an organization excluding someone for race, religion, gender, something like that, you're not allowed to do that."