John Banzhaf's Fatwa against Catholic University : by Brett G. Scharffs

January 10, 2012

A complaint was filed in October 2011 by a George Washington University law professor against Catholic University claiming that it violated the human rights of Muslim students by displaying crucifixes in University rooms and refusing to provide a room where Muslims could pray in an atmosphere free from Christian religious symbols.

On first glance, this looks like an example of a powerful religious majority institution refusing to accommodate a small minority religion within its own sphere. Resorting to a lawsuit appears to be a last-ditch effort by a religious minority for a measure of recognition and respect within a hostile majoritarian institution, a religious institution no less. The complaint sounds like a classic breakdown in communication – the law being used to resolve a dispute that should be composed (in the sense of being settled, resolved, and calmed) rather than litigated. Where a reasonable accommodation could easily be made, we imagine two sides, entrenched and intransigent, hunkering in for a fight.

But the facts do not fit this compelling narrative. The complaint was filed with the DC Office of Human Rights by John F. Banzhaf III, a public interest law professor at GeorgeWashingtonUniversityLawSchool. The complaint was based upon a 2010 story in the Washington Post, which described in mostly favorable terms the experiences of Muslim students at the CatholicUniversity.

Banzhaf's website quotes descriptions of him as "the area's best-known 'radical' law professor," and asserts that he teaches a course in which his students "sue for credit.". Banzhaf has engaged in high profile fights with the tobacco and fast food industries, among many others, and has even filed a previous Human Rights complaint against CatholicUniversity, alleging that the school engaged in sex discrimination when it returned to single-sex dorms. That complaint was later dismissed.

This time around, Banzhaf apparently tried to identify some Muslim students who would complain about their treatment at CatholicUniversity, but finding none, filed a complaint with the Washington, D.C. Office of Human Rights on his own behalf.

Banzhaf then issued a press release trumpeting the complaint and claiming that CatholicUniversity "illegally discriminated" against Muslim students, and acted with "malice." His 60-page complaint included a claim that Muslim students had to pray "at the cathedral that looms over the entire campus – the Basilica of the National Shrine of the Immaculate Conception."

This was followed by an internet and cable TV-fueled cycle of outrage and recriminations. Muslim students were denounced for allegedly demanding that a CatholicUniversity remove its sacred symbols. CatholicUniversity was denounced for being insensitive to another religious minority. The blogosphere was soon filled with what can fairly be described as hate speech, aimed at both Muslims ("Islamacist supremacists") and Catholics ("closed-minded bigots").

Catholic University President John Garvey, responded with a statement designed to calm passions and explain the situation. He began by describing the claim as "completely without foundation. Worse, Banzhaf has created the perception that it is our Muslim students themselves who are offended by the symbols of Catholicism on our campus, and that they object to the absence of worship space set aside specifically for them." Garvey went on to explain, "The fact is that no Muslim student at CatholicUniversity has registered a complaint with the University about the exercise of their religion on campus. And today [October 28, 2011] we learned from an article in the Washington Post that Mr. Banzhaf himself has not received any complaints from our Muslim students." Garvey said, "I regret very much that our Muslim students have been used as pawns in a manufactured controversy."

Ordinarily, a case like this would be thrown out of court for lack of standing. But under the D.C. Human Rights Act, which contains particularly strict anti-discrimination provisions, anyone can file a complaint with the D.C. Office of Human Rights, including general allegations of discrimination that are unrelated to specific persons or instances.

Nevertheless, the Act provides broad exemptions for religious and political organizations, including the right of religiously affiliated schools to "giv[e] preference to persons of the same religion . . . as is calculated by the organization to promote the religious or political principles for which it is established or maintained." The law further provides that "it shall not be an unlawful discriminatory practice in the District of Columbia for any educational institution that is affiliated with a religious organization . . . to deny, restrict, abridge or condition . . . the use of any fund, service, facility, or benefit."

As its name announces, CatholicUniversity is a private religious academic institution. Neither U.S. Constitutional nor federal law prohibits religiously-affiliated universities from displaying religious symbols relating to their own faith. Indeed, any effort by the government to limit such expressions would almost certainly be struck down as a violation of free exercise, free speech, and free association rights.

Complaints like these appear to be designed primarily to agitate rather than illuminate. We should expect that in due course the complaint will be quietly dismissed by the Human Rights Commission. Nothing more, perhaps, than a tempest in a teacup.

The danger, however, is that episodes like this serve to stir the cauldrons of anti-Islam sentiment that do simmer in some sectors of our society, who were quick to interpret the case as part of some dark conspiracy by Muslims to attack Christian institutions.

Brett G. Scharffs is Francis R. Kirkham Professor of Law and Associate Director, International Center for Law and Religion Studies, Brigham Young University Law School.