Gay Rights Coalition of Georgetown University Law Center v. Georgetown University , 536 A.2d 1 ( 1987 )

MACK, Associate Judge:

In the District of Columbia, the Human Rights Act prohibits an educational institution from discriminating against any individual on the basis of his or her sexual orientation.¹ Two student gay rights groups contend that Georgetown University violated this statutory command by refusing to grant them “University Recognition” together with equal access to the additional facilities and services that status entails. The University, relying on the trial court’s factual finding that Georgetown’s grant of “University Recognition” includes a religiously guided “endorsement” of the recipient student group, responds that the Free Exercise Clause of the First Amendment protects it from official compulsion to “endorse” an organization which challenges its religious tenets. Upholding the asserted constitutional defense, the trial court entered judgment in favor of Georgetown. The student groups appeal.

Our analysis of the issues differs from that of the trial court. At the outset, we sever the artificial connection between the “endorsement” and the tangible benefits contained in Georgetown’s scheme of “University Recognition.” With respect to the University’s refusal to grant the status of “University Recognition,” we do not reach Georgetown’s constitutional defense. Contrary to the trial court’s understanding, the Human Rights Act does not require one private actor to “endorse” another. Thus, Georgetown’s denial of “University Recognition” — in this case a status carrying an intangible “endorsement” — does not violate the statute. Although affirming the trial court’s entry of judgment for the University on that point, we do so on statutory rather than constitutional grounds.

We reach a contrary conclusion with respect to the tangible benefits that accompany “University Recognition.” While the Human Rights Act does not seek to compel uniformity in philosophical attitudes by force of law, it does require equal treatment. Equality of treatment in educational institutions is concretely measured by nondiscriminatory provision of access to “facilities and services.” D.C. Code § 1-2520 (1987). Unlike the “endorsement,” the various additional tangible benefits that accompany a grant of “University Recognition” are “facilities and services.” As such, they must be made equally available, without regard to sexual orientation or to any other characteristic unrelated to individual merit. Georgetown’s refusal to provide tangible benefits without regard to sexual orientation violated the Human Rights Act. To that extent only, we consider the merits of Georgetown’s free exercise defense. On that issue we hold that the District of Columbia’s compelling interest in the eradication of sexual orientation discrimination outweighs any burden imposed upon Georgetown’s exercise of religion by the forced equal provision of tangible benefits.

Thus, on statutory rather than constitutional grounds, we affirm the trial court’s conclusion that Georgetown need not grant “University Recognition” to — and thereby “endorse” — the student groups. The Human Rights Act does, however, mandate that the student groups be given equal access to any additional “facilities and services” triggered by that status. Georgetown’s asserted free exercise defense does not overcome the Human Rights Act’s edict that the tangible benefits be distributed without regard to sexual orientation. We affirm in part, reverse in part, and order the trial court to enter judgment accordingly.²

I

FACTUAL BACKGROUND

A. Georgetown University

In 1789, the year in which the Constitution was ratified and the federal government created, Georgetown University was established. Its founder was John Carroll, a Jesuit priest, a friend of George Washington and later, as Bishop of Baltimore, the first Roman Catholic prelate in the nation. “On this academy,” he declared, “rests all my hope for the flourishing of our holy religion in the United States.”

In 1805 Georgetown College, as it was then known, was formally committed to the control and guidance of the Society of Jesus.³ In 1815, Congress bestowed on Georgetown College the first university charter to be granted by the federal government. Act of March 1, 1815, 6 Stat. 152. This charter was signed by James Madison as president of the United States. By decree of the Holy See in 1833, Georgetown College was given the status of a Pontifical University. This grant from the Pope empowered the University to confer the highest ecclesiastical degrees in Philosophy and Sacred Theology. To this day, Georgetown remains one of only two universities in the nation with this distinction. In 1844, Georgetown College was incorporated by a special Act of Congress. Act of June 10, 1844, 6 Stat. 912. Its charter was amended in 1966 to allow it to operate as a nonprofit corporation and to adopt the name Georgetown University. Act of Oct. 4, 1966, Pub. L. No. 89-631, 80 Stat. 877.

Today, approaching the bicentennial it shares with the ratification of our Constitution, the college Carroll founded on the banks of the Potomac is a major private, co-educational university and the oldest Roman Catholic institution of higher learning in the United States. Its enrollment consists of roughly 10,000 students in several undergraduate, graduate and professional schools. Georgetown University also runs a hospital and sponsors research institutes and other educational endeavors.

B. Georgetown’s Religious Tradition

Through two centuries of growth, Georgetown University has been guided by the religious hope of its founder, John Carroll. All of its forty-six presidents have been Roman Catholic clergymen. On four occasions, the University has been headed by a bishop. In particular, Georgetown has continued a close relationship with the Jesuits. Since about 1825, without exception, members of that order have filled the presidential office.

At trial, Reverend Timothy S. Healy, 5.J., Georgetown’s president and a defendant in this case, testified that “until 1969 the general understanding was that the Society of Jesus owned the University and its property.” In that year, the president and directors of Georgetown University signed an agreement with its Jesuit Community. With a few exceptions, the Jesuits relinquished their rights to University property. They also undertook to make periodic contributions to the University. Other provisions of the 1969 agreement sought to “guarantee the continued and effective presence of the Jesuits at Georgetown University.” Among these were promises by the Jesuit Community to make themselves available for religious services, residential duties and teaching positions, and to take steps to ensure that highly qualified members of their order be assigned to the campus community. The agreement specified the desirability, “in order to preserve the Jesuit traditions of Georgetown University,” that the University president be a member of the Society. Without confining deanships to their ranks, it was agreed that “qualified members of the Society of Jesus will be regularly appointed to such of those positions as may be practical.” The office of University Chaplain was reserved for a Jesuit. In the words of President Healy, the 1969 agreement represented a “clear understanding that the University would continue to keep a very close affiliation with the Society of Jesus, to guarantee their presence at the University and to guarantee the meaning of the University in Jesuit terms that have existed up until that formal contract was drawn.”

President Healy testified that throughout its existence Georgetown has invariably defined itself as a Roman Catholic institution. This perception is illustrated by some of the opening words in its undergraduate bulletin: “Georgetown is committed to a view of reality which reflects Catholic and Jesuit influences_ As an institution that is Catholic, Georgetown believes that all men are sons of God, called to a life of oneness with Him now and in eternity.” Georgetown University, University Bulletin — Undergraduate Schools 1 (1980-81) (hereinafter “Undergraduate Bulletin”). According to its Law Center bulletin, “Georgetown’s religious heritage is a cherished part of its distinctive quality.” Georgetown University, Law Center Bulletin 31 (1980-81) (hereinafter “Law Center Bulletin”). The Faculty Handbook describes “Georgetown University as an American, Catholic, Jesuit institution of higher learning,” seeking to “uphold, defend, propagate, and elucidate the integral Christian and American cultural heritage” through “certain established principles, specific ideals, and definite traditions.” Georgetown University, Faculty Handbook vi (1971) (hereinafter “Faculty Handbook”). The “established principles” are “the demonstrated philosophical truths about the nature of man, the universe and God; the truths of Christian revelation and their crystallization through the centuries....” Id. Among the “specific ideals” are “the perfectability of society through the acquisition and practice by its members of the theological, intellectual, moral virtues and their derivatives [and] the value of service to the community as an expression of Christian democratic ideals.” Id. And the “definite traditions” include “the Christian culture and conduct having their source and inspiration in the teachings and example of Christ....” Id.

Georgetown University is a member of several associations of Roman Catholic educational institutions. As a Pontifical University, it is one of only two American universities entered in the Annuario Pontificio, an annual listing by the Holy See of all such institutions throughout the world. Chapels are scattered throughout its properties and Masses offered several times each day. Almost all of its . directors are Catholic, although there is no formal requirement that they be so. During a five-year period just prior to trial, Jesuits made up between one third and one half of the board. Faculty members must “maintain a sympathetic attitude towards Catholic beliefs and practices_”⁴ Georgetown has the largest number of ministers in residence among the Jesuit colleges and universities in the United States.

Roman Catholic doctrine influences some of Georgetown’s policy decisions. Abortions and other proscribed procedures are not performed in the University hospital. Student newspapers may not carry advertisements for abortion clinics. Birth control devices may not be sold in the student stores. Cohabitation is forbidden between single students in the dormitories. In 1981, Georgetown returned a gift of $750,-000 to the Libyan government due to the conflict between Roman Catholic teachings and that nation’s perceived links with terrorist activity. Religious considerations, the trial court found, influenced Georgetown’s denial of “University Recognition” and accompanying tangible benefits to the student groups.

C. Georgetown’s Secular Educational Role

Despite its historical identification with the Roman Catholic Church, Georgetown University's professed intention is to provide a secular education, albeit one that is informed by Christian values. Its founder, John Carroll, insisted from the very beginning that the college be open to students of every religious persuasion. Religious belief plays no role in admissions, graduation, class attendance, participation in sports or other student activities, or eligibility for financial aid, placement facilities, awards or honors programs. The Undergraduate Bulletin declares that Georgetown “imposes no religious creed on any faculty member or any student, but it expects them to respect the religious convictions of each person.” Id. at 1. The University motto is “Making of One — Jew and Gentile.” Although undergraduate students must attend two courses in the Theology Department, neither need be taught from the Catholic perspective. Faculty members are not required to be Catholic, nor are they asked to propagate the Catholic faith or indoctrinate students with Catholic philosophy-

D. The Relationship between Georgetown’s Religious Tradition and its Secular Educational Role

From the foregoing, and from Georgetown’s published materials, it appears that the University perceives itself as fulfilling a secular educational role without abandoning its religious heritage. This view is expressed in its Undergraduate Bulletin. While Georgetown reflects its Catholic and Jesuit influences,

[i]t neither wishes nor expects all its members to be Catholic, but it does assume that all of them share a basic, widely accepted view of humankind. It sees all men as essentially equal, as endowed with a human dignity always to be respected.... It seeks to open its arms, in the fullest sense of ecumenism, to those of all beliefs and all races.

Id. at 1. A similar idea is expressed by the Law Center: “The Law Center welcomes students of all religious .beliefs and does not proselytize. On the other hand, Georgetown’s religious heritage is a cherished part of its distinctive quality.” Law Center Bulletin, supra, at 31.'

President Healy has described the interrelationship between Georgetown’s secular educational role and its spiritual objectives:

Theology no longer has the sway in the University that it once had, nor can we any longer talk about it as the organizing base of the other academic disciplines. What we can talk about is a religious tradition which after 200 years must condition what the University is and does. Any university is a creature of time and is by its nature secular. Our job is to discover what impact the habit of belief in God has on the secular reality of a university, on its teaching, its learning, its research and its service.

Georgetown University, Annual Report 2 (1979). In a later report, President Healy voiced similar thoughts: Georgetown has the imperatives of its own secular being, but the Church reinforces, strengthens, and personalizes them.” Georgetown University, Annual Report 4 (1981). Also, he notes, “[ejducation remains principally a secular business, and the university is a secular entity with a clear secular job to do. The Church, however, can deeply influence how that secular job is done.” Id. at 4-5.

E. The Recognition Criteria

On October 13,1977, the gay students of Georgetown University held a public meeting in a room on campus. Sometime later, the group chose a name, Gay People of Georgetown University (GPGU), and adopted a constitution.⁵ After its formation, GPGU met weekly, its activities including lectures, discussions, film shows and social events.

Around the same time, a similar development occurred at the Law Center. There, a group known as the Gay Rights Coalition (GRC) of Georgetown University Law Center formed and adopted a constitution.⁶ Unfortunately, in contrast to GPGU, the record is relatively barren with regard to GRC’s origins and subsequent activities.

After a time, both student groups decided to seek the formal status and attendant privileges enjoyed by many other campus organizations. On the main campus, where GPGU is based, the procedures for doing so were established by written guidelines. When GPGU first initiated the recognition process, during academic year 1978-79, these criteria were contained in a document issued by the Student Activities Commission (SAC) under the name “What Your Club Needs to Know.” This document was superseded in the fall of 1979 by another, more specific set of guidelines known as “Recognition Criteria: Student Clubs and Organizations” (hereinafter “Recognition Criteria”). This later document primarily clarified and expanded upon the criteria set forth in the earlier one; the two were not inconsistent. Hence, although GPGU in fact made two unsuccessful applications in successive academic years, one under each set of guidelines, we make no distinction between their applications and treat both as though they were governed by “Recognition Criteria.” Also because the guidelines do not conflict, we reject the student groups’ claim that “Recognition Criteria”— the later and more explicit of the two — is a “self-serving,” pretextual document, adopted in response to GPGU’s first application and designed to close the door on its second one.

“Recognition Criteria” sets forth a tiered system of support available to undergraduate student groups: “This support, in order to reach all the members of the community, is offered on three different levels.” Id. at 1. Applications are initially submitted to SAC, an advisory body of the undergraduate student senate. The different levels of support are defined as follows:

“Student Body Endorsement”: SAC grants this recognition representing the interest of the Student Government and the entire student body.

“University Recognition ”: SAC makes recommendations concerning this recognition. Final approval is granted through the University’s Director of Student Activities.

“University Funding”: is recognition in a monetary form.

Id.

The three tiers of recognition are listed in declining order of accessibility. The most accessible, “Student Body Endorsement,” does not depend on approval by the University administration. It is available to any group which satisfies basic requirements as to size and composition and whose activities are “within the scope of the student body interest and concern, serving an educational, social, or cultural purpose.” Id. at 2.

The more elusive “University Recognition,” the status at issue in this case, requires approval by the University administration and may only be sought by groups that have already obtained “Student Body Endorsement.” In order to obtain “University Recognition,” such organizations have to satisfy two further conditions. They must:

(1) “be successful in aiding the University’s educational mission in the tradition established by its founders (as outlined in the University’s Statement of Educational Goals and Objectives[⁷])”; and

(2) “provide a broad service to the University community in the sense that the activities of the group may not be of an immediate and/or special interest.”

Id. at 3. “Recognition Criteria” describes “University Recognition” as Georgetown’s “endorsement of the various co-curricular activities undertaken by a specific club.” Id. at 1.

“University Funding,” the third and least accessible tier of recognition, may be sought only by groups that have already obtained “University Recognition.” Such groups, however, have no automatic right to direct financial support. Id. at 4. Lastly, and only implicitly, a fourth tier exists outside the scheme established by “Recognition Criteria” — that occupied by completely unrecognized campus groups, operating without even “Student Body Endorsement.”

More than status is at stake. The facilities and services afforded to a student group by the University are dependent upon its level of recognition within this three-tiered scheme. A group with “Student Body Endorsement,” but without “University Recognition,” may:

(a) use University facilities;

(b) apply for lecture fund privileges;

(c) receive financial counseling from the SAC comptroller;

(d) use campus advertising; and

(e) petition to receive assistance from Student Government.

Id. at 2-3. “University Recognition” entitles a group to four additional benefits. They may

(f) use a mailbox in the SAC office and request one in Hoya Station;

(g) use the Computer Label Service;

(h) use mailing services; and

(i) apply for funding.

Id. at 3. Success in obtaining direct financial support, a discretionary decision by the University, elevates a student group to “University Funding,” the highest tier established by “Recognition Criteria.”

No written guidelines such as “Recognition Criteria” were issued at the Law Center, where GRC was located. The University’s treatment of GPGU’s and GRC’s respective applications was, however, indistinguishable. More importantly, the student groups do not suggest that any alternative criteria were ever in force at the Law Center. We have no basis on which to conclude that the eligibility factors to be applied to GRC are significantly different from the written guidelines set forth in “Recognition Criteria” at the main campus.

F. The Student Groups’ Attempts to Gain “University Recognition”

GPGU made two attempts to gain “University Recognition.” The first was in academic year 1978-79 and the other immediately afterwards in the following academic year. On both occasions it obtained only “Student Body Endorsement.” Georgetown refused to grant it “University Recognition” or the accompanying tangible benefits.

SAC first considered and approved GPGU’s application on January 30, 1979. The same day, SAC issued the following statement:

The SAC has granted a charter to the [GPGU] for the purpose of providing a forum where all students of Georgetown may come to understand the concerns of Gay Students.

The recommendation for a charter does not mean that the SAC is making any statement on the rightness or wrongness of homosexuality or is implying that the University is making such a statement.

Within a week the Student Senate ratified both the action of SAC in approving a “Student Government Charter”⁸ and the statement that accompanied it.

The following day William C. Schuerman, Associate Dean of Student Affairs, informed the Student Government that GPGU would not be recognized as an “official” activity of .Georgetown University.⁹ He wrote:

The administration recognizes that the issue is both an educational and pastoral one. It is an issue that the University has addressed in an understanding manner. The University has been and will continue to be sensitive to the concerns of its gay students and the problems they face on the campus and in our society.’. ..

The University has acknowledged in a supportive way its gay students. These students may continue to organize, to express opinions, to publicize educationally related events. Gay students may use University facilities for educationally related purposes such as meetings, discussion groups, speakers, etc. The office and services of the Director of Student Activities are available to gay students for help and assistance in planning educationally related programs. All academic personnel and educational support services in the University are open and available to gay students for assistance and advice.

It is the position of the University that this access by gay students to University resources:

(1) Makes possible an atmosphere in which gay people as members of this University community can develop a sense of pride, self-worth and awareness.

(2) Provides for the dissemination of educational information that may encourage understanding and dialogue between gay and non-gay people.

(3) Allows for forums and open expression of opinions helpful in the development of responsible sexual ethics consonant with individual personal beliefs.

(4) Allows students to gather together in an educational setting to share common interests and beliefs.[¹⁰]

The University, however, will not endorse the [GPGU] as an “official” activity of its Student Affairs Programs. The University will not contribute to the support of this organization:

(1) Through a grant of University funds.

(2) By providing subsidized office space, telephone service, office supplies, and equipment.

(3) By granting authorized use of the name Georgetown University.

Georgetown University is a private University with a history and tradition which is specifically Catholic. University administrators must often make decisions in light of the conscience and value system identified with this tradition. The University, in terms of this responsibility cannot concur with the argument of its Student Government in this particular case, that official acknowledgment would not imply endorsement.

This situation involves a controversial matter of faith and the moral teachings of the Catholic Church. “Official” subsidy and support of a gay student organization would be interpreted by many as endorsement of the positions taken by the gay movement on a full range of issues. While the University supports and cherishes the individual lives and rights of its students it will not subsidize this cause. Such an endorsement would be inappropriate for a Catholic University.

Memorandum from Dean W. Schuerman to the Student Government (Feb. 6,1979) (emphasis added).

GPGU appealed Dean Schuerman’s decision to the Dean of Student Affairs, William R. Stott, Jr., and met with him for that purpose. See letter from GPGU to Dean W. Stott, Jr. (Feb. 24, 1979). Dean Stott upheld the decision to “den[y] endorsement to the [GPGU] as an official activity of the University’s Student Affairs Program.” Letter from Dean W. Stott, Jr., to GPGU (Mar. 5, 1979). He continued:

The fact that the University has chosen not to grant endorsement to the [GPGU] as an approved student activity, does not indicate a lack of concern, a lack of sympathy for the Gay Student in particular, or students in general. It simply means that after the facts have been considered and discussion has taken place, there remains a point of disagreement as to whether endorsement of the [GPGU] as a student activity is appropriate for a Catholic University. The University’s decision, therefore, is not a reflection on or a judgment of the personal choices of its members, but rather represents a judgment of what is appropriate for Georgetown as an institution.

Id. (emphasis added).

GPGU again appealed, this time to Reverend Aloysius P. Kelley, S.J., Executive Vice President for Academic Affairs. Taking issue with the equation of “recognition” and “endorsement,” GPGU wrote:

We think it important to emphasize at the start that what we are seeking is recognition, not endorsement, as Dean Stott’s response seems to imply. It is our belief, as well as that of the student government, that official recognition of our organization would not be construed as an endorsement of homosexual activity. Since this seems to be the major concern of the administration, we ask: “Is it not possible for the administration to issue a statement saying that, in granting recognition to our group, it is not endorsing such activity?”

Letter from GPGU to Reverend A. Kelley, S.J. (Apr. 9, 1979) (“not” emphasized in original, remaining emphasis added).

After meeting with GPGU representatives, Reverend Kelley denied its appeal. He relied upon the position taken by Deans Schuerman and Stott, and then added:

As I tried to explain when we talked, I believe that our goals are essentially the same, but that the means to arrive at them are different. Georgetown will continue to show support for Gay Students but in a way which is deemed appropriate for this University. You mentioned that there may be additional ways in which the Administration could be supportive short of official recognition and I suggested that you discuss these with Mr. Schuerman.

Letter from Reverend A. Kelley, S.J., to GPGU (Apr. 9, 1979).

Reverend Kelley’s denial of GPGU’s appeal ended its attempt to gain “University Recognition” in academic year 1978-79.

GPGU renewed its efforts early in the following academic year. This time it made separate visits to SAC to request a “Student Government Charter” and, later, “University Recognition.” SAC approved GPGU’s request for a “Student Government Charter” on November 13 and its decision was ratified by the Student Senate on November 18, 1979. SAC accompanied its approval with the following statement:

The [GPGU] convinced the SAC, with both their written constitution and their oral presentation, that they represent a distinct group of students on this campus whose existence we as student representatives are bound to acknowledge. Furthermore, by enumeration of their educational functions (e.g. answering questions in nursing classes, enlightening RAs, etc.) the [GPGU] depicted itself as, to borrow from the criteria, “a positive force within the University community.”

As had happened the previous year, Dean Schuerman wrote immediately to the Student Government to point out that the administration did not accept the action of SAC as giving “official recognition” to GPGU. Memorandum from Dean W. Schuerman to the Student Government (Nov. 21,1979). The reasons he gave were essentially borrowed from his letter of the previous year. Memorandum from Dean W. Schuerman to the Student Government (Feb. 6, 1979) (quoted supra at 19-21).

Undaunted, GPGU again appeared before SAC two weeks later and requested “University Recognition” to add to the “Student Body Endorsement” it had already received. Both SAC and the Student Senate voted in favor of GPGU despite the administration’s recent announcement that it would not accede to this request. At the end of 1979, therefore, GPGU was awaiting the University’s reaction to the favorable response it had won from the Student Government.

On January 15, 1980, in an effort to clarify its position, GPGU requested the administration to furnish it with a statement as to the group’s status. This was provided by the Director of Student Activities, Debbie L. Gottfried. After repeating the administration’s previous reasons for denying “University Recognition,” she added:

As I have told you and other gay students, the services of my office are available to you for help and assistance in planning educationally related programs. I cannot stress to you enough the sincerity behind this offer. I cannot offer any possibility of the University’s changing its position on what it feels would be interpreted as endorsement and official support of the full range of issues associated with this cause.

Letter from D. Gottfried to GPGU (Jan. 18, 1980) (emphasis added); see also memorandum from Dean W. Schuerman to D. Gott-fried (Jan. 16, 1980).

Both GPGU and the Student Government requested that this decision be reconsidered. Letter from the Student Government to Dean W. Schuerman (Feb. 5, 1980). As had happened the previous year, GPGU met with Dean Schuerman, but failed to persuade him that “University Recognition” was appropriate. Dean Schuerman wrote:

In my judgment, official recognition by the University of a gay student organization would be interpreted by many as endorsement, support, and approval of the positions taken by the gay movement on a full range of issues. This would be inappropriate for a Catholic University. While I recognize your disagreement with this position, I was not dissuaded by your argument that the University could on the one hand grant official recognition (defined by Student Government’s recently updated criteria as “endorsement of the various co-curricular activities undertaken by a specific club”) and on the other hand, disclaim “endorsement” of the major activities which, by definition, are associated with a gay organization.

... [T]he University does not recognize the [GPGU] as an official activity of the Student Affairs program and will not subsidize this cause.

Letter from Dean W. Schuerman to GPGU (Feb. 21, 1980) (emphasis added).

Continuing in the pattern set the previous year, GPGU unsuccessfully appealed Dean Schuerman’s decision to Dean Stott and Reverend Donald Freeze, S.J., Vice President for Academic Affairs and Provost. Letter from Dean W. Stott, Jr., to GPGU (Mar. 14, 1980); letter from Reverend D. Freeze, S.J., to GPGU (Mar. 31, 1980). This time it appealed, without success, all the way to President Healy. Letter from GPGU to President T. Healy, S.J. (Apr. 1, 1980); letter from President T. Healy, S.J., to GPGU (Apr. 29, 1980). The day after President Healy’s ultimate denial of “University Recognition,” this action was filed in Superior Court.

By then, a similar chain of events had taken place at the Law Center. On December 6, 1979, GRC had submitted its application to become a “recognized” student activity to the Law Center Committee on Student and Faculty Life (CSFL). Its petition was approved by CSFL on February 14, 1980. Two weeks later, David J. McCarthy, Jr., Dean of the Law Center, told CSFL that he would not “implement either recognition or funding of the proposed organization.” Memorandum from Dean D. McCarthy, Jr., to CSFL (Feb. 26, 1980). Dean McCarthy’s reasons for denying GRC “official recognition” were couched in terms almost identical to those Dean Schuerman had given GPGU. See memorandum from Dean W. Schuerman to the Student Government (Feb. 6, 1979) (quoted supra at 19-21). After this action had been filed, President Healy informed Dean McCarthy that his earlier decision denying GPGU “University Recognition” on the main campus applied equally and for the same reasons to GRC at the Law Center. Letter from President T. Healy, S.J., to Dean D. McCarthy (May 8, 1980) (“The University’s decision is not a reflection on or a judgment of the personal choices of its individual members but rather reflects a judgment of what is appropriate for Georgetown as an institution”).¹¹ A letter to the same effect was sent to the Chancellor of the Medical Center, Georgetown University’s one remaining campus, although no similar group there had sought “University Recognition.” Letter from President T. Healy, S.J., to Chancellor M. McNulty (May 8, 1980).

Thus, at the time this action was filed, GPGU had obtained “Student Body Endorsement” at the Main Campus and GRC had obtained its apparent equivalent at the Law Center. Neither group had been successful in its attempts to obtain “University Recognition” or the additional benefits that status carries with it.

II

THE TRIAL COURT PROCEEDINGS

The two gay student groups and twenty individual members brought suit against Georgetown University, its president, and the dean of its Law Center. They alleged that the denial of “University Recognition,” together with the increased access to facilities and services that status entails, violated the Human Rights Act. See D.C. Code § 1-2520 (1987) (quoted supra note 1). Georgetown defended itself by insisting that its denial of “University Recognition” was not “on the basis of” the sexual orientation of the students, but rather on account of the “purposes and activities” of the particular organizations they had formed. Georgetown also asserted that even if its actions were taken on the basis of sexual orientation, they were protected by the Free Exercise Clause of the First Amendment.¹²

The student groups moved for summary judgment. On March 9, 1981, the trial court partially granted their motion. Judge Leonard Braman found that Georgetown’s denial of “University Recognition” violated the Human Rights Act. On the statutory issue as to whether Georgetown had discriminated on the basis of sexual orientation, he held, no material factual issue was in genuine dispute and the student groups were entitled to judgment as a matter of law. See Super.Ct.Civ.R. 56(c); Howard v. Riggs National Bank, 432 A.2d 701, 705-06 (D.C.1981). Judge Braman ordered that the only issue set for trial would be the validity of the University’s claimed free exercise defense.

In so doing, Judge Braman found immaterial to the statutory discrimination issue Georgetown’s claim that a grant of “University Recognition” would constitute an unwilling “endorsement” of the student groups.

Discrimination on the basis of sexual orientation having been found, and a statutory violation therefore established, the case proceeded to a nonjury trial on Georgetown’s free exercise defense. After seven days of testimony, Judge Sylvia Bacon held that the statute was unconstitutional as applied to the facts of this case: “the District of Columbia Human Rights Act must yield to the Constitutional guarantee of religious freedom.”

Judge Bacon made several findings of fact. She described the three levels of recognition available to campus organizations and found that the student groups had achieved “Student Body Endorsement,” together with its attendant tangible benefits, but had been denied “University Recognition” and the additional tangible benefits which accompany that status.

Judge Bacon also found that “Georgetown University is a religiously affiliated educational institution which serves both sectarian and secular purposes.” In denying “University Recognition,” Judge Bacon determined that Georgetown’s administrators had applied the moral or normative teachings of the Roman Catholic Church, as these were established at trial through expert testimony and Church documents. See Archbishop John R. Quinn, A Pastoral Letter on Homosexuality (May 5, 1980); Sacred Congregation for the Doctrine of the Faith, Declaration On Certain Questions Concerning Sexual Ethics (Dec. 29, 1975). Under Catholic doctrine, sexual function has its true meaning and moral rectitude only in heterosexual marriage. Homosexual acts — as distinguished from a homosexual orientation — are morally wrong and must be viewed as “gravely evil and a disordered use of the sexual faculty.” Persons of homosexual orientation have¹ an obligation to “try as is reasonably possible to change if they find themselves in such orientation” and must in any event conform their conduct to the normative teachings on human sexuality. No believer affiliated with the Roman Catholic Church may condone, endorse, approve or be neutral about homosexual orientation, homosexual lifestyle or homosexual acts.

Judge Bacon found that “the major pmr-pose of ‘[UJniversity [Recognition’ is official endorsement, an endorsement which the University believes will conflict with the normative teachings of the Church on homosexuality.” However, Judge Bacon acknowledged that, in addition to the “endorsement,” a grant of “University Recognition” allows a student group access to additional facilities and services.

Judge Bacon also found that Georgetown’s denial of “University Recognition” was based on its view, one not without foundation, that “the gay student organizations, as evidenced by their charters and their activities, were participating in and promoting homosexual life styles,” and that Georgetown was religiously opposed to this type of group activity. University administrators acted upon a sincerely-held religious belief that official recognition of the two groups “would be inconsistent with Church normative teachings and with the basic obligation not to undermine the normative teachings of the Church.” Finally, Judge Bacon found that without “University Recognition” clubs may be formed, meetings held on campus, and application made for lecture funds, and that in the District of Columbia there are other off-campus opportunities available to gay students.

In addition to her findings of fact, Judge Bacon made several conclusions of law. She held that Georgetown University is not so pervasively secular that it cannot separate secular and sectarian activities and that its receipt of federal funds for secular purposes neither required it to abandon its sectarian activities nor put it in violation of the Establishment Clause of the First Amendment. Moreover, its status as a church-affiliated educational institution allowed it to raise and rely on First Amendment guarantees of religious freedom. The religious beliefs in issue are sincerely held and central to the Roman Catholic faith and they impose affirmative commands upon its adherents. Judge Bacon held that enforcement of the Human Rights Act in this case would require Georgetown to act in a manner “inconsistent with its duties as a Catholic institution” and would therefore place a burden on the free exercise of religion. On the other hand, because there is no “national” policy requiring state intervention in matters relating to sexual orientation, the Human Rights Act does not further any “compelling” governmental interest which could outweigh the burden on religious exercise. In the circumstances of this case, she held, the Human Rights Act is “a local enactment of well-motivated purpose but impermissible reach.” Upholding Georgetown’s free exercise defense, Judge Bacon dismissed the student groups’ complaint.

Ill

THE HUMAN RIGHTS ACT VIOLATION

In granting partial summary judgment, Judge Braman found that Georgetown’s denial of “University Recognition” and the attendant tangible benefits violated the Human Rights Act. At trial on the free exercise defense, Judge Bacon therefore proceeded from the premise of an established statutory violation. Without challenging the underlying finding of a Human Rights Act violation, Georgetown asks this court to affirm Judge Bacon’s conclusion that the Human Rights Act is unconstitutional as applied.

“If there is one doctrine more deeply rooted than any other, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Spector Motor Services, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944). Thus, “if a case may be decided on either statutory or constitutional grounds, [the courts], for sound jurisprudential reasons, will inquire first into the statutory question.” Harris v. McRae, 448 U.S. 297, 306-07, 100 S.Ct. 2671, 2683, 65 L.Ed.2d 784 (1980); see also, e.g., New York City Transit Authority v. Beazer, 440 U.S. 568, 582-83, 99 S.Ct. 1355, 1364, 59 L.Ed.2d 587 (1979); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 297, 76 L.Ed. 598 (1932). A constitutional issue is presented in this case only if Judge Bra-man correctly concluded that the statute was violated. Before considering Judge Bacon’s later ruling on the free exercise defense, we must ask ourselves whether the Human Rights Act was properly construed by Judge Braman.

The deeply rooted doctrine that a constitutional issue is to be avoided if possible informs our principles of statutory construction. We do not needlessly pit a statute against the Constitution. Insofar as its language permits, the Human Rights Act must be construed in a manner which protects its constitutionality. E.g., United States v. Locke, 471 U.S. 84, 92, 105 S.Ct. 1785, 1791, 85 L.Ed.2d 64 (1985); Ellis v. Brotherhood of Railway Clerks, 466 U.S. 435, 444, 104 S.Ct. 1883, 1890, 80 L.Ed.2d 428 (1984); International Association of Machinists v. Street, 367 U.S. 740, 749-50, 81 S.Ct. 1784, 1789-90, 6 L.Ed.2d 1141 (1961); Moore v. Coates, 40 A.2d 68, 71 (D.C.1944); see generally Sutherland Statutory Construction §§ 2.01, 45.11 (4th ed. 1985) (hereinafter Sutherland). Moreover, it should be read, if it can be, so as to avoid difficult and sensitive constitutional questions concerning the scope of the First Amendment. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507, 99 S.Ct. 1313, 1322, 59 L.Ed.2d 533 (1979); see also, e.g., United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985); Nova University v. Educational Institution Licensure Commission, 483 A.2d 1172, 1179-80 (D.C.1984), cert. denied, 470 U.S. 1054, 105 S.Ct. 1759, 84 L.Ed.2d 822 (1986); see generally Sutherland, supra, at § 45.11.¹³

On the facts of this case, as found by Judge Bacon after trial, the particular scheme of “University Recognition” operating at Georgetown includes a religiously guided institutional “endorsement” of recipient student groups. Contrary to Judge Braman’s earlier construction, the Human Rights Act does not require one private actor to “endorse” the ideas or conduct of another. The trial court’s interpretation would defeat the plain language of the statute and simultaneously transform the Human Rights Act into a patent invasion of the First Amendment. The statute would be rendered both practically and legally unenforceable. Because the Human Rights Act does not require Georgetown to “endorse” the student groups, its denial of “University Recognition” did not violate the statute.

While the Human Rights Act does not require any “endorsement” — and therefore does not require the type of “University Recognition” offered by Georgetown — it does require equal access to the “facilities and services” attendant upon that status. D.C.Code § 1-2520 (1987). In this case the student groups have been denied four tangible benefits that also come with a grant of “University Recognition”: officially approved use of a mailbox, use of the Computer Label Service, mailing services, and the right to apply for (but not necessarily to receive) funding. All of these tangible benefits, unlike an “endorsement,” are “facilities and services” within the meaning of the Human Rights Act; the record supports Judge Braman’s conclusion that they were denied on the basis of sexual orientation. Id. Tangible benefits having been denied upon an impermissible basis, we affirm, to that extent only, Judge Braman’s finding that the Human Rights Act was violated; we reverse his holding that the denial of “University Recognition” was of itself a statutory violation.

A. Judge Bacon’s Factual Finding that “University Recognition” at Georgetown Includes an “Endorsement”

Judge Bacon found as a fact that under the Georgetown scheme “University Recognition” benefits a student group in two ways. “The major purpose of ‘[U]niv-ersity [Recognition’ is official endorse-ment_”, an “endorsement” which Georgetown tenders in accordance with the normative teachings of the Roman Catholic Church. “University Recognition” also gives a student group access to certain tangible benefits. Unless “clearly erroneous,” these factual findings are binding upon us for purposes of this appeal. D.C. Code § 17-305(a) (1981); see Chaconas v. Meyers, 465 A.2d 379, 384 (D.C.1983); Blanken & Blanken Investments, Inc. v. Keg, Inc., 383 A.2d 1076, 1078 n. 4 (D.C.1978); Cunningham v. Cunningham, 154 A.2d 124, 125 (D.C.1959).

Specifically, the student groups urge us to disregard as clearly erroneous Judge Bacon’s factual finding that “University Recognition” at Georgetown includes an “endorsement.” They point out that other groups with “University Recognition” occupy a broad range of the political, social and philosophical spectrum, and argue that Georgetown cannot claim that all of these organizations are strictly Roman Catholic in outlook. In particular, the student groups refer us to the recognized existence of such diverse bodies as the Jewish Students Association, the Organization of Arab Students, the Young Americans for Freedom, and the Democratic Socialist Organizing Committee.

At trial, the student groups challenged President Healy with evidence concerning the University’s willingness to extend “University Recognition” to organizations whose members adhere to religions other than Catholicism. President Healy responded:

It is the understanding of the Roman Catholic Church that faiths other than the Roman Catholic Church are, to put it in the technical terms, carriers of grace and as such are good. The Roman Catholic Church would feel that they are incomplete, but in the context of a complex university, it is the clear and stated purpose of the Roman Catholic Church that those of other faiths receive the same pastoral and intellectual sustenance in their faith as far as it is possible for the University to grant it, given the multiplicity, as Catholic students receive from a Catholic university.

The student groups also sought to undermine Georgetown’s claim of “endorsement” by pointing to views on artificial birth control, abortion, divorce and lesbianism associated with members of the Women’s Rights Collective (WRC) and the Women’s Political Caucus (WPC). However, one of their witnesses, Sister Mary K. Liston, stated that WPC, another campus group of which she was a member, had not and could not take a pro-abortion position “[b]ecause of the stand of the Catholic Church on the issue of abortion.” Sona Jean Vandall, a representative of WRC, acknowledged that the only formally stated purpose of that organization is the eradication of policies and practices which alienate and discriminate against women. She further testified that views contrary to Roman Catholic teachings were carried in none of WRC’s published information and that no such positions had been voted on by its membership. Referring to an occasion when WRC posted other organizations’ notices concerning artificial birth control and abortion, President Healy testified that he referred the matter to a committee to “determine whether [these incidents were] an isolated instance or whether [they were] an essential part of the collective activity.” After discussion with the various parties, he regarded the incidents in question as “such minor instances of activity as not to be of serious concern to the University.” He concluded, on that basis, that withdrawal of WRC’s “University Recognition” would not be appropriate.

With regard to the. plaintiff student groups, President Healy saw the matter differently. He testified that the University does not distinguish between students on the basis of their sexual orientation and said that group activity merely promoting the legal rights of gay people would present no religious conflict. But, according to President Healy and other Georgetown representatives, including its theological expert, the purposes set forth in the GPGU Constitution described an organization for which “University Recognition” would be inappropriate for a Catholic institution.

“The statement that stopped me most,” said President Healy, was GPGU’s stated commitment to “the development of responsible sexual ethics consonant with one’s personal beliefs.” See GPGU Constitution (quoted supra note 5). Under Roman Catholic doctrine, as expert testimony established, responsible sexual ethics are not a question of personal belief. “The University cannot make that statement about any area of front line morality without insisting upon the objectivity of moral fact and that it is not left strictly to individual determination within any context which can reasonably be read as Catholic.” Under Roman Catholic doctrine, contrary to GPGU’s suggestion, sexual ethics are the subject of an absolute and unyielding moral law, one laid down by God.

President Healy also testified that GPGU’s expressed intention to “establish a program of activities which reflect the above purposes,” id., was “open-ended enough to involve the University in a host of positions and activities which together or singly it would find inappropriate.” He had similar reservations about GRC’s stated commitment to the provision of information to gay and lesbian law students concerning “Washington’s gay community, including educational, cultural, religious, social and medical services.” See GRC Constitution (quoted supra note 6). According to President Healy, GRC’s association with the range of activities engaged in by the Washington gay community would “involve Georgetown University in positions it would not wish publicly to adopt.”

Roman Catholic teachings establish “moral norms” which prevent believers from recognizing homosexual conduct, as distinguished from homosexual orientation, as anything other than sinful. President Healy added that the duty to obey these “moral norms”

would be more binding upon institutions, which have to act publicly and where there is an added moral consideration of leading others astray or giving scandal in the technical sense of the word, so that the binding authority of Roman Catholic teaching on an institution would, at least in that dimension, be greater than it would be on an [individual].

Reverend Richard J. McCormick, S.J., Georgetown’s theological expert, testified to the same effect. He said that a Roman Catholic university “has a duty to act in a way consistent with those teachings and not to undermine them in its public policies.” Thus, “in its public policies and public acts,” the University “ought not to adopt a public policy of explicit endorsement or implicit endorsement” of, for example, abortion, premarital intercourse, or homosexual conduct. Georgetown should not “in its public actions, policies, decisions, take a position that would equivalently establish another normative lifestyle equally valid with the one that is in a normative position.” According to President Healy, a grant of “University Recognition” to GPGU and GRC would conflict with Georgetown's duty not to undermine the Roman Catholic teaching that “human sexuality can be exercised only within marriage. ...”

The trial court did not define precisely what it meant by “endorsement.” For President Healy, “a position that the Church was either neutral or approving of the range of homosexual activities is unacceptable.” (Emphasis added.) This statement reveals what we understand to be at stake. An official “endorsement,” as symbolized by Georgetown’s grant of “University Recognition,” would express religious approval of or neutrality towards the student groups. Under the Georgetown scheme, “University Recognition” is reserved for groups that do not fundamentally challenge the “moral norms.”

We cannot characterize as “clearly erroneous” Judge Bacon’s finding that the scheme of “University Recognition” offered by Georgetown includes the type of “endorsement” just described. “Recognition Criteria” described it as an “endorsement.” Georgetown administrators repeatedly testified that they understood it to have that effect. From the outset of its dealings with GPGU and GRC, Georgetown equated “University Recognition” with an “endorsement.” Neither “Recognition Criteria” nor any evidence adduced at trial indicates that “University Recognition” is an automatic right. That status was granted in the University’s discretion and some application of Roman Catholic doctrine was involved in the recognition process.

Our required deference to Judge Bacon’s factual finding is not undercut by Georgetown’s willingness to “endorse” a wide range of groups with extremely diverse goals and activities. For those whose common interest is a non-Catholic religious belief system, Georgetown’s “endorsement” appears to have been granted in the spirit of ecumenism. For others, including WRC, the evidence permitted Judge Bacon to conclude that no “essential part of the collective activity” contravened Roman Catholic doctrine, and that the administration would withdraw “University Recognition” if there were more than “isolated instances” of unofficial activity inconsistent with those teachings. The trial court was therefore entitled to conclude that the University adopted an approving or at least neutral position towards all of the existing groups because it did not perceive them to be incompatible with its religious obligations. This comports with our understanding of what “endorsement” means in this case.

An appellate court may not usurp the role of the factfinder. We cannot label “clearly erroneous” Judge Bacon’s “endorsement” finding, i.e., that “University Recognition” at Georgetown contains an expression of religious approval or neutrality towards a student group obtaining that status.¹⁴

B. The “Endorsement” Distinguished from the Tangible Benefits

The distinction between the “endorsement” and the other benefits contained in Georgetown’s scheme of “University Recognition” is fundamental. It is so from both a statutory and a constitutional perspective. In this case, the separateness of the benefits at issue is obscured by the fact that they are bundled together into a single package known as “University Recognition.” Because the “endorsement” and the tangible benefits contained in that package are fundamentally distinct, we must sever the artificial connection between them in order to analyze the true issues.

The “endorsement” contained in “University Recognition” is an intangible. To a student group, it is no more than an expression of official approval or neutrality, a statement of Georgetown’s tolerance towards organizations that pose no fundamental challenge to the “moral norms.” The “endorsement” is a symbolic gesture, a form of speech by a private, religiously affiliated educational institution, an entity free to adopt partisan public positions on moral and ethical issues.¹⁵ In speaking out on human sexuality, Georgetown is guided by a religious mission undertaken along with secular educational functions. The “endorsement” contained in “University Recognition” assists the student group only by giving it Georgetown’s imprimatur or, at least, nihil obstat. Quite different are the tangible benefits associated with “University Recognition.” Unlike the “endorsement,” the tangible benefits are “facilities and services,” D.C. Code § 1-2520 (1987), and not an abstract expression of the University’s moral philosophy. Their distinct characteristics are disguised only because both the “endorsement” and the additional tangible benefits are included in one package known as “University Recognition.”

As amicus The Governor’s Council on Lesbian and Gay Issues of the State of Wisconsin points out, “such a structure unnecessarily ties the University’s religious beliefs to extension of benefits.” Brief at 5-6. We agree. While the “endorsement” and the tangible benefits may be one for Georgetown’s administrative purposes, they are not so in the eyes of the Human Rights Act, nor are they so in the eyes of the First Amendment. “The constitutionality of the statute,” as the District of Columbia remarks, “cannot depend on the [University's internal linkages.” Reply Brief at 3. We open up the package of “University Recognition” and examine its contents separately.¹⁶

C. Applying the Human Rights Act to the “Endorsement” Element of “University Recognition”

The Human Rights Act does not require one private actor to “endorse” another. Georgetown’s denial of “University Recognition” to the student groups did not violate the statute.

There are two reasons why, as a matter of statutory construction, the Human Rights Act cannot be read to compel a regulated party to express religious approval or neutrality towards any group or individual. First, the statute prohibits only a discriminatory denial of access to “facilities and services” provided by an educational institution. D.C. Code § 1-2520 (1987). An “endorsement” is neither. The Human Rights Act provides legal mechanisms to ensure equality of treatment, not equality of attitudes. Although we fervently hope that nondiscriminatory attitudes result from equal access to “facilities and services,” the Human Rights Act contains nothing to suggest that the legislature intended to make a discriminatory state of mind unlawful in itself. Still less does the statute reveal any desire to force a private actor to express an idea that is not truly held. The Human Rights Act demands action, not words. It was not intended to be an instrument of mind control. Judge Braman’s construction of the statute, as requiring an insincere expression of opinion, conflicts with its literal meaning.

Second, as we have already pointed out, unless the language of the statute is plainly to the contrary, we must construe it so as to uphold its constitutionality. To read into the Human Rights Act a requirement that one private actor must “endorse” another would be to render the statute unconstitutional. The First Amendment protects both free speech and the free exercise of religion.¹⁷ Its essence is that government is without power to intrude into the domain of the intellect or the spirit and that only conduct may be regulated. Interpreting the Human Rights Act so as to require Georgetown to “endorse” the student groups would be to thrust the statute across the constitutional boundaries set by the Free Speech Clause and also, where sincere religious objections are raised, the Free Exercise Clause. Nothing in the statute suggests, let alone requires, such a result.

Because similar interests are often implicated, the Supreme Gourt has relied on both the Free Speech Clause and the Free Exercise Clause to protect against government intrusion into the inner domain. The Court has made clear that the state is without power to regulate the intellect or the spirit; its rule is over actions and behavior only. In its initial decision interpreting the Free Exercise Clause, the Court described the division between opinion and action as “the true distinction between what properly belongs to the Church and what to the State.” Reynolds v. United States, 98 U.S. (8 Otto) 145, 163, 25 L.Ed. 244 (1878). With the adoption of the Free Exercise Clause, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.” Id. at 164. The Court quoted with approval a statute drafted by Thomas Jefferson to protect religious freedom in Virginia: “[i]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.” Id. (quoting 12 Hening’s Stat. 84 (1784)). “[T]o suffer the civil magistrate to intrude his [or her] powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty.” Id. The Court concluded, as a matter of constitutional principle, that “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Reynolds, supra, 98 U.S. at 166.¹⁸

That principle has been emphatically reaffirmed in a later free exercise case: “the Amendment embraces two concepts,— freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” Cantwell v. Connecticut, supra note 18, 310 U.S. at 303-04, 60 S.Ct. at 903 (citations omitted). The principles embraced within the “absolute” core of the clause, freedom of conscience, thought and expression of religious belief, as “sacred private interests, basic in a democracy,” Prince v. Massachusetts, 321 U.S. 158, 165, 64 S.Ct. 438, 441, 88 L.Ed. 645 (1944), cannot be forced to jostle for position with other values regarded by the state as more deserving.

A number of free speech cases have expanded the idea that government cannot force one to embrace a repugnant philosophy. Initially, these decisions implicated religious objections, but the Supreme Court has since made clear that the protection against forced speech also extends to matters of a secular nature. In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), children attending public schools were required to salute the United States flag upon pain of expulsion and possible criminal penalties against their parents. This symbolic gesture was an affront to the religious beliefs of Jehovah’s Witnesses. “To sustain the compulsory flag salute,” observed the Court, “we are required to say that a Bill of Rights which guards the individual’s right to speak his [or her] own mind left it open to public authorities to compel him [or her] to utter what is not in his [or her] mind.” Id. at 634, 63 S.Ct. at 1183. The Constitution precludes such a result: “the action of the local authorities in compelling the flag salute and pledge transcended] constitutional limitations on their power and invad[ed] the sphere of intellect and spirit which it is the purpose of the First Amendment to our constitution to reserve from all official control.” Id. at 642, 63 S.Ct. at 1187 (emphasis added). The state has no “power to force an American citizen publicly to profess any statement of belief.” Id. at 634, 63 S.Ct. at 1183. Only one member of the Court preferred to reach this result by emphasizing the religious nature of the objections: “Official compulsion to affirm what is contrary to one’s religious beliefs is the antithesis of freedom of worship.” Id. at 646, 63 S.Ct. at 1189 (Murphy, J., concurring).

In a later free exercise case concerning a Sunday closing statute challenged by Orthodox Jews, Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961) (plurality opinion), the Court carefully distinguished Barnette before upholding the regulation. It stressed that “[c]ertain aspects of religious exercise cannot, in any way, be restricted or burdened by either federal or state legislation_ The freedom to hold religious beliefs and opinions is absolute." Braunfeld, supra, 366 U.S. at 603, 81 S.Ct. at 1146 (emphasis added). A “compulsory flag salute requires affirmation of a belief and an attitude of mind.” Id. at 605-06, 81 S.Ct. at 1147 (quoting Barnette, supra, 319 U.S. at 633, 63 S.Ct. at 1183) (emphasis added in Braunfeld). In contrast to the flag salute cases, however, the Braunfeld statute did not outlaw “the holding of any religious belief or opinion, nor [did] it force anyone to embrace any religious belief or to say or believe anything in conflict with his [or her] religious tenets.” Id. at 603, 81 S.Ct. at 1146; accord, Wallace v. Jaffree, 472 U.S. 38, 48-55, 105 S.Ct. 2479, 2486-89, 86 L.Ed.2d 29 (1985) (“the First Amendment was adopted to curtail the power of Congress to interfere with the individual’s freedom to believe, to worship, and to express himself [or herself] in accordance with the dictates of his [or her] own conscience”); Wisconsin v. Yoder, 406 U.S. 205, 219, 92 S.Ct. 1526, 1535, 32 L.Ed.2d 15 (1972) (“under the Religion Clauses beliefs are absolutely free from the state’s control”); Gillette v. United States, 401 U.S. 437, 462, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971) (“the Free Exercise Clause bars ‘governmental regulation of religious beliefs as such’ ... or interference with the dissemination of religious ideas” (emphasis in original; citations omitted)); Sherbert v. Verner, 374 U.S. 398, 402, 83 S.Ct. 1790, 1793, 10 L.Ed. 2d 965 (1963) (“The door of the First Amendment stands tightly closed against any government regulation of religious beliefs as such.... Government may neither compel affirmance of a repugnant belief ... nor penalize or discriminate against individuals or groups because they hold views abhorrent to the authorities” (emphasis in original; citations omitted)). Similarly, in Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961), the Court held that a statute requiring a declaration of belief in God as a test for public office violated the Free Exercise Clause. The state regulation “unconstitutionally invade[d] the appellant’s freedom of religion and therefore [could not] be enforced against him.” Id. at 496, 81 S.Ct. at 1684.

The Court relied on broader free speech principles, as it had in Barnette, when it upheld the challenge of Jehovah’s Witnesses whose religion forbade them from compliance with a governmentally compelled exhibition of vehicle license plates bearing the state motto “Live Free or Die.” Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). The question there was “whether the State may constitutionally require an individual to participate in the dissemination of an ideological message.” Id. at 713, 97 S.Ct. at 1434. The answer was no. Speech may no more be officially prescribed than it may be proscribed. “The right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” Id. at 714, 97 S.Ct. at 1435. The Wooley Court explained that freedom from compelled expression is an essential element of a society dedicated to free speech. “A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’ ” Id. at 714, 97 S.Ct. at 1435 (citing Barnette). A state measure forcing one to be an instrument for fostering public adherence to a repugnant point of view invades the sphere of intellect and spirit which the First Amendment reserves from all official control. Id. at 715, 97 S.Ct. at 1435.

The Supreme Court’s most recent pronouncement on the right against compelled expression came in a free speech case without religious overtones. Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion). A public utility company was ordered by the California Public Utilities Commission to include in its billing envelopes the speech of a third party with whom the utility disagreed. The state regulation in Pacific Gas & Electric did not require the utility to voice any “endorsement,” but merely to serve as a vehicle for the views of a ratepayers’ organization. Id. at 906-07, 911 n. 11. Furthermore, the utility’s objections were not religiously based, so that only the Free Speech Clause and not the Free Exercise Clause was implicated. Id. at 908-10. Finally, the utility engaged primarily in commercial speech relating to its business interests, although its newsletter also carried recipes, stories about wildlife conservation and other matters of public concern. Id. at 907-08. Despite these limitations, the Court upheld the utility’s objection to the challenged regulation. The degree of intrusion upon the utility’s First Amendment rights was doubtless considerably less than Judge Braman’s construction of the Human Rights Act would impose upon Georgetown. In contrast to a heavily regulated public utility, Georgetown’s stock-in-trade is in ideas; as a private, nonprofit, religiously affiliated educational institution seeking to implement its own vision of education, it is entitled to favor particular views on moral, ethical, philosophical, political and social issues.

“For corporations as for individuals,” wrote the Pacific Gas & Electric plurality, “the choice to speak includes within it the choice of what not to say,” id. at 912 (citing Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258, 94 S.Ct. 2831, 2840, 41 L.Ed.2d 730 (1974)), because “[cjorpora-tions and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster,” id. at 907 (quoting First National Bank v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 1419, 55 L.Ed.2d 707 (1978)). “The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas.... There is necessarily ... a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect.” Id. at 909 (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 559, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985) (quoting Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 348, 296 N.Y.S.2d 771, 778, 244 N.E.2d 250, 255 (1968) (emphasis in original)). The Public Utilities Commission therefore could not compel the public utility to “assist in disseminating the speaker’s message” or to “associate with speech with which [the public utility] may disagree.” Id. at 911.¹⁹

In Pacific Gas & Electric the Supreme Court clarified the line between compelled expression and mere accommodation of another’s speech. It distinguished PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), in which the owner of a shopping center set up as a public forum was required by state law to admit pamphleteers. “Notably absent from PruneYard,” said the Court,

was any concern that access to this area might affect the shopping center owner’s own right to speak: the owner did not even allege that he objected to the content of the pamphlets; nor was the right of access content-based. PruneYard thus does not undercut the proposition that forced associations that burden protected speech are impermissible.

Pacific Gas & Electric, supra, 106 S.Ct. at 910. In sharp contrast to the threatened “endorsement” here, the PruneYard Court had stressed the unlikelihood that the pamphleteers’ views would be identified with those of the shopping center owner and also emphasized that no specific message was being dictated by the government in that case. 447 U.S. at 74, 100 S.Ct. at 2037. But Georgetown’s scheme of “University Recognition” cannot be analogized to a public forum, nor can its campus be equated with “a business establishment that is open to the public to come and go as they please.” Id.

Far from PruneYard's required accommodation of another’s speech, this case raises the specter of compelled expression in violation of the First Amendment. A grant of “University Recognition” by Georgetown includes an “endorsement” of student groups it considers broadly compatible with Roman Catholic doctrine. To that extent, “University Recognition” is speech. Government compulsion to grant “University Recognition” would threaten both the free speech and free exercise guarantees of the First Amendment. Although a compelling state interest may justify regulation of religiously motivated conduct, nothing can penetrate the constitutional shield protecting against official coercion to renounce a religious belief or to endorse a principle opposed to that belief. “The very purpose of a Bill of Rights is to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majority and officials and to establish them as legal principles to be applied by the courts.” Barnette, supra, 319 U.S. at 638, 63 S.Ct. at 1185. Georgetown’s right to express opinions based on Roman Catholic teachings includes the right to do so by way of granting “University Recognition” to groups it regards as consonant with that belief system. Individuals will not always agree with Georgetown’s choices as to what groups are deserving of its approval, but its right to freely express its views is nonetheless protected by the First Amendment.

Freedom of expression is a right to which we all lay equal claim, irrespective of the content of our message. This is easily illustrated. Suppose that the Gay University of America (GUA) is established as a private educational institution. Part of its mission is to win understanding and acceptance of gay and bisexual persons in an intolerant society. Although open to everyone, regardless of sexual orientation, GUA does expect its faculty, staff and students to maintain a sympathetic attitude towards gay practices and the philosophies that support them. GUA has, as the trial court finds, a system of “University Recognition” through which it expresses its approval or tolerance of various student groups desiring that status. But the GUA administration refuses to grant “University Recognition” to the Roman Catholic Sexual Ethics Association (RCSEA). In that situation, the Human Rights Act’s ban on discrimination based on religion could not avail the Catholic student group, for the simple reason that the statute does not require GUA to give expressions of approval or tolerance. Insincere statements of opinion are not what the Human Rights Act requires. On the other hand, the statute would require equal distribution of any attendant tangible benefits if GUA’s denial of these was based on the religion of RCSEA members. Georgetown’s protection against compelled expression is no more and no less.

The trial court’s construction of the Human Rights Act would transform the statute into a violation of the First Amendment. It would compel Georgetown to “endorse” the student groups despite the Supreme Court’s warning that a religious actor may not be forced to “say ... anything in conflict with [its] religious tenets.” Braunfeld, supra, 366 U.S. at 603, 81 S.Ct. at 1146. This construction of the Human Rights Act is required neither by its language nor by its purpose of ensuring equal treatment — treatment concretely measured by access to “facilities and services,” not by the educational institution’s expressed approval of the “purposes and activities” of recipient student groups.²⁰

Georgetown’s obligation under the statute is not to express a particular point of view. It is to make tangible benefits available to its students without regard to their sexual orientation. The Human Rights Act does not require Georgetown to grant “University Recognition” and its accompanying intangible “endorsement” to the student groups.

D. Applying the Human Rights Act to the Tangible Benefits Contained in “University Recognition”

Although the student groups were not entitled to summary judgment on the ground that Georgetown’s denial of “University Recognition” — including an “endorsement” — violated the Human Rights Act, the statute does require Georgetown to equally distribute, without regard to sexual orientation, the tangible benefits contained in the same package. If discrimination appears from the record, this court may sustain the statutory ruling “on a ground different from that adopted by the trial court.” Max Holtzman, Inc. v. K & T Co., 375 A.2d 510, 513 n. 6 (D.C.1977); see also Liberty Mutual Insurance Co. v. District of Columbia, 316 A.2d 871, 875 (D.C.1974); Wells v. Wynn, 311 A.2d 829, 829 n. 2 (D.C.1973). Our review of the record reveals no genuine dispute that the tangible benefits were denied on the basis of sexual orientation. The Human Rights Act was violated to that extent.²¹

The Human Rights Act cannot depend for its enforcement on a regulated actor’s purely subjective, albeit sincere, evaluation of its own motivations. “Bias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence_” Crawford v. United States, 212 U.S. 183, 196, 29 S.Ct. 260, 265, 53 L.Ed. 465 (1909). It is particularly difficult to recognize one’s own acts as discriminatory. Apart from organizations that failed to meet purely technical requirements such as a minimum membership, the record shows that Georgetown never denied “University Recognition” to a student group that was not mainly composed of persons with a homosexual orientation. Where, as here, those possessing characteristics identified by the legislature as irrelevant to individual merit are treated less favorably than others, the Human Rights Act imposes a burden upon the regulated actor to demonstrate that the irrelevant characteristic played no part in its decision. Georgetown failed to present facts that could show it was uninfluenced by sexual orientation in denying the tangible benefits.

One nondiscriminatory reason asserted by Georgetown for its denial of the tangible benefits contained in “University Recognition” was that it could not give its accompanying “endorsement” to the student groups without violating its religious principles. But as the Human Rights Act, properly construed, requires no direct, intangible “endorsement,” Georgetown cannot avoid a finding of discrimination on that ground. The remaining nondiscriminatory reasons asserted by Georgetown may be summarized as follows: the “purposes and activities” of the student groups fell outside the boundaries set by “Recognition Criteria,” rendering them ineligible for the tangible benefits they sought and not “otherwise qualified” within the meaning of the statute, D.C. Code § 1-2520 (1987); and, in any event, the denial of tangible benefits was based on the “purposes and activities” of the student groups, not on the homosexual status of their members, so that the sexual orientation of the students involved played no part in the decisionmak-ing process, id.

In this case, the nondiscriminatory reasons asserted by Georgetown have the effect of fusing together what would normally be two separate inquiries — are the student groups “otherwise qualified” for the tangible benefits they seek, and, if so, did Georgetown deny those tangible benefits due to the sexual orientation of their members? Here, because the answer to both of those distinct questions is determined by objective reference to the “purposes and activities” of the student groups, what are normally two separate inquiries collapse into one: did the homosexual orientation of the group members cause them to be treated differently from other applicants?

We are not bound by Georgetown’s subjective perception of the “purposes and activities” to which it objected. Georgetown must view the “purposes and activities” of a student group in a way which is free from impermissible reliance upon factors unrelated to individual merit. Accordingly, if the homosexual status of group members entered into Georgetown’s assessment of the “purposes and activities” of the student groups, albeit unconsciously, the denial of tangible benefits was itself based on sexual orientation. Put differently, it would be irrelevant that Georgetown saw itself as doing nothing more than applying neutral guidelines established by “Recognition Criteria” if sexual orientation had in fact influenced how those standards were applied.

In denying GPGU’s application for “University Recognition” Georgetown adverted to that group’s expressed purpose (one of four) to “provide a forum for the development of responsible sexual ethics consonant with one’s personal beliefs.” See GPGU Constitution (quoted supra note 5). That purpose is at odds with Roman Catholic teachings. But GRC’s constitution contained no comparable statement; Georgetown’s stated objection was to GRC’s much broader intention to “[pjrovide lesbians and gay men entering the Law Center with information about Washington’s gay community, including educational, cultural, religious, social and medical services.” See GRC Constitution (quoted supra note 6). Because GRC’s purposes include an asexual commitment to serving the broad range of needs experienced by homosexual students, but no statement as to the propriety of homosexual conduct, Georgetown’s objection to that organization must to some extent have been prompted by the sexual orientation of its members.

That Georgetown’s treatment of the gay student groups was not exclusively influenced by a specific objection to “purposes and activities” inconsistent with Roman Catholic dogma was further evidenced by Debbie Gottfried, the University’s Director of Student Activities. In clarifying GPGU’s status after it had obtained “Student Body Endorsement,” but had failed to obtain “University Recognition,” Gottfried wrote that the University would not change its position “on what it feels would be interpreted as endorsement and official support of the full range of issues associated with this cause.” Letter from D. Gottfried to GPGU (Jan. 18, 1980) (emphasis added). At no time has Georgetown defined what it meant by “the full range of issues” associated with the gay student groups, despite its insistence that Roman Catholic doctrine favors the provision of equal civil and political rights to homosexually oriented persons and that its religious objection was directed only to the promotion of homosexual conduct. Gottfried’s statement was later repeated by Dean Schuerman, who wrote that the University would not lend its endorsement, support or approval to “the positions taken by the gay movement on a full range of issues ” or “the major activities and issues which, by definition, are associated with a gay organization." Letter from Dean W. Schuer-man to GPGU (Feb. 21, 1980) (emphasis added). Similarly, when Dean McCarthy turned down GRC’s application at the Law Center, he wrote that the University would not lend its official subsidy and support to a gay law student organization because that “would be interpreted by many as endorsement of the positions taken by the gay movement on a full range of issues." Letter from Dean D. McCarthy, Jr., to GRC (Feb. 26, 1980) (emphasis added). Georgetown thus ascribed to the student groups not only “purposes and activities” which they may have had, but also a host of others automatically assumed to be a necessary attribute of their homosexual orientation.

Other conclusive evidence that Georgetown took homosexual orientation into account in its recognition procedures is supplied by the fact that on the same day as he denied “University Recognition” to GRC at the Law Center, President Healy wrote an essentially identical letter to the Chancellor of the Medical Center, despite the fact that no homosexually oriented students there had ever applied for such status. President Healy wrote:

I am sure that you are aware that the Gay Students on the Main Campus have appealed Father Freeze’s decision to me. That appeal has recently been denied.... Since you may be presented with a similar situation at the Medical Center, I want to point out that this decision applies equally to the Medical Center.

Letter from President T. Healy, S.J., to Chancellor M. McNulty (May 8, 1980). This action amounted to an adverse decision without any consideration on the merits, in light of criteria neutral to sexual orientation, of the “purposes and activities” of whatever group might be formed sometime in the future. It is explicable only if Georgetown considered the predominantly homosexual orientation of some future student group at the Medical Center, and not just its specific “purposes and activities,” to be a factor of intrinsic relevance to a grant of “University Recognition.” That a predominantly homosexual orientation would be fatal to a bid for tangible benefits at the Medical Center establishes beyond any doubt that Georgetown was not oblivious to sexual orientation in its application of “Recognition Criteria.”

It is apparent from this correspondence, all of which was before Judge Braman when he granted summary judgment on the discrimination issue, that Georgetown’s denial of tangible benefits was not closely tied to specific “purposes and activities” of the student groups promoting the homosexual conduct condemned by Roman Catholic doctrine. The conclusion is inescapable that the predominantly gay composition of the student groups played at least some role in their treatment by Georgetown. By objecting to the student groups’ assumed connection, “by definition,” to a “full range of issues” associated with the “gay movement,” rather than to specific “purposes and activities” inconsistent with its Roman Catholic tradition, Georgetown engaged in the kind of stereotyping unrelated to individual merit that is forbidden by the Human Rights Act. In short, the record reveals no genuine doubt that Georgetown’s asserted nondiscriminatory basis for its action was in fact tainted by preconceptions about gay persons. Georgetown did not apply “Recognition Criteria” on an equal basis to all groups without regard to the sexual orientation of their members.

Judge Braman’s finding that Georgetown discriminated on the basis of sexual orientation is further supported by his express reliance on another provision of the Human Rights Act. The effects clause provides that “[a]ny practice which has the effect or consequence of violating any of the provisions of this chapter shall be deemed to be an unlawful discriminatory practice.” D.C. Code § 1-2532 (1987). Under that section, despite the absence of any intention to discriminate, practices are unlawful if they bear disproportionately on a protected class and are not independently justified for some nondiscriminatory reason. As the legislative history demonstrates, the Council imported into the Human Rights Act, by way of the effects clause, the concept of disparate impact discrimination developed by the Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

In Griggs, decided shortly before the Human Rights Act was passed in its original form as a municipal regulation, the Supreme Court interpreted the federal Civil Rights Act of 1964 as prohibiting not only intentional discrimination, but also practices which prejudice protected groups and are not supported by some independent, nondiscriminatory justification. Griggs was expressly relied upon by the drafters of the Human Rights Act when the original regulation was adopted. Dr. Marjorie Parker, chairwoman of one of the committees that proposed the law to the pre-Home Rule City Council, explained to Council members that because the District regulation “parallels the Civil Rights Act,” the public could look to the federal model to answer many of their questions concerning the administration and enforcement of the Human Rights Act. District of Columbia City Council, Committee Report on Title 34, “The Human Rights Law,” 1 (Oct. 15,1973) (available in the District Building) (hereinafter “Parker Report II”); see also District of Columbia City Council, Committee Report on Title 34, “The Human Rights Law,” 2 (Aug. 7, 1973) (available in the District Building) (hereinafter “Parker Report I”). The Parker Report II specifically cited Griggs and noted that it “upheld the applicability of the Civil Rights Act in cases of unintentional discrimination.” Id. at 3 (emphasis in original).

During the passage of the bill, the Council retained the effects clause despite opposition from local employers. A submission from the Metropolitan Washington Board of Trade and the C & P Telephone Company resulted in the preparation of a memo distributed to Council members reaffirming the Parker Report’s interpretation: “The Supreme Court in Griggs v. Duke Power held that unintentional discrimination is just as liable under the Civil Rights Act as intentional discrimination.” District of Columbia City Council, Memorandum on Proposed Draft Clarifications: Title 34, at 5 (Oct. 11, 1973) (available in the District Building) (emphasis in original). The memo added that “[wjhile unintentional discrimination would be unlawful [under the Human Rights Act], a finding of such would probably prevent any judgment of damages against the perpetrator.” Id. The Council made only inconsequential changes to the wording of the effects clause as originally proposed.

A Human Rights Act violation was established with regard to Georgetown’s denial of the tangible benefits. The evidence before Judge Braman may not permit the conclusion that Georgetown consciously denied benefits due to the sexual orientation of the student groups involved. It is nonetheless evident that the University allowed the homosexual orientation of the individuals involved — not just the “purposes and activities” of their student organizations— to creep into its decisionmaking. By failing to confine its objections to “purposes and activities” which it found offensive for reasons independent of the sexual orientation of the students, Georgetown discriminated. The position that “a gay organization” is “by definition” associated with a “full range of issues” reveals that sexual orientation was a factor in Georgetown’s denial of tangible benefits. That statement established an intentional violation. D.C. Code § 1-2520 (1987); and, in any event, under the effects clause the Human Rights Act also prohibits unintentional discrimination, id. § 1-2532. Finally, none of the Human Rights Act’s narrowly drawn exceptions avails Georgetown here.²²

The Human Rights Act having been violated with respect to the tangible benefits, we proceed to Georgetown’s free exercise defense.

IV

GEORGETOWN’S FREE EXERCISE DEFENSE

Georgetown claims that the Free Exercise Clause of the First Amendment exempts it from the Human Rights Act’s edict that it distribute the tangible benefits equally without regard to sexual orientation. We disagree.

In the trial court, due to Judge Braman’s prior statutory construction; Judge Bacon premised her free exercise analysis on the mistaken belief that compliance with the Human Rights Act would require Georgetown to provide a religious “endorsement” as well as tangible benefits. The true issue is a much more limited one. It is whether the forced distribution of various tangible benefits without regard to sexual orientation, severed from the direct “endorsement” required by a compelled grant of “University Recognition,” imposes an unconstitutional burden on Georgetown’s exercise of religion.²³ The answer is no.

A. The Free Exercise Clause

The Free Exercise Clause provides that “Congress shall make no law ... prohibiting the free exercise” of religion. U.S. Const, amend. I. This terse check on government power has given rise to a number of controlling principles. One who invokes the Free Exercise Clause in order to gain exemption from a govemmentally imposed obligation must initially establish that forced compliance with the regulation will impose a burden on his or her religious exercise. Although not all burdens on religious exercise are unconstitutional, an exemption accommodating the religious practice must be granted unless the government can demonstrate that it has a compelling or an overriding interest in enforcing the challenged regulation. If so, the court must assure itself that the promotion of the compelling governmental objective outweighs the burden imposed upon the practice of religion and, moreover, that the challenged regulation is the least restrictive means by which the government can attain its compelling end. See, e.g., Bob Jones University v. United States, 461 U.S. 574, 602-04, 103 S.Ct. 2017, 2034-35, 76 L.Ed.2d 157 (1983); United States v. Lee, 455 U.S. 252, 257-60, 102 S.Ct. 1051, 1055-56, 71 L.Ed.2d 127 (1982); Thomas v. Review Board, 450 U.S. 707, 718-19, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981); Wisconsin v. Yoder, supra, 406 U.S. at 219-21, 92 S.Ct. at 1535-36; Sherbert v. Verner, supra, 374 U.S. at 402-09, 83 S.Ct. at 1793-96.

B. The Burden on Georgetown’s Religious Exercise

The first stage of our inquiry is to decide whether state compulsion to distribute, without regard to sexual orientation, various tangible benefits associated with “University Recognition” — use of a mailbox, access to the Computer Label Service, mailing facilities, and the ability to apply for (but not necessarily to receive) funding —would interfere with Georgetown’s practice of the Roman Catholic religion. See, e.g., Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 305-06, 105 S.Ct. 1953, 1964, 85 L.Ed.2d 278 (1985); United States v. Lee, supra, 455 U.S. at 256-57, 102 S.Ct. at 1054-55.

The parties have not fully developed the extent of the burden that would be imposed on Georgetown's religious exercise by compulsion to grant the tangible benefits without “University Recognition.” This case has been litigated on the “all or nothing” basis reflected in the trial court's construction of the Human Rights Act. It is nevertheless undisputed that Georgetown has consistently refused to furnish the additional tangible benefits to the student groups, and throughout has linked its refusal to Roman Catholic teachings. Georgetown is apparently opposed to extending the additional tangible benefits because of its belief that establishing another normative lifestyle conflicting with the “moral norms” would violate its obligations as a Roman Catholic institution. This objection is not “so bizarre, so clearly nonreligious in nature as not to be entitled to protection under the Free Exercise Clause.” Thomas v. Review Board, supra, 450 U.S. at 715-16, 101 S.Ct. at 1431. Thus, while the threat of a direct “endorsement” has been defused, and Georgetown’s primary religious fear abated accordingly, it would be inappropriate to dwell exclusively on that fact and conclude that no burden had been shown. From the record, particularly its correspondence with the student groups, we conclude that Georgetown’s sincere religious objections go beyond the direct, intangible “endorsement” and extend to distribution of the contested tangible benefits even without a grant of “University Recognition.”

In these circumstances, especially given the “all or nothing” manner in which this case has been litigated, we accept that the threat of enforcement of the Human Rights Act with regard to the tangible benefits imposes a burden on Georgetown’s religious practice sufficient for it to invoke the Free Exercise Clause.

C. The Compelling Governmental Interest in Eradicating Sexual Orientation Discrimination

Next, if the burden on Georgetown’s religious practice is not to render the Human Rights Act unconstitutional as applied, we must determine whether the District of Columbia has a compelling or overriding governmental interest in the eradication of sexual orientation discrimination. Hobbie v. Unemployment Appeals Commission, — U.S.-, 107 S.Ct. 1046, 1049, 94 L.Ed.2d 190 (1987); Bob Jones University v. United States, supra, 461 U.S. at 603-04, 103 S.Ct. at 2034-35; United States v. Lee, supra, 455 U.S. at 257-58, 102 S.Ct. at 1055; Thomas v. Review Board, supra, 450 U.S. at 718-19, 101 S.Ct. at 1432. “[0]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.” Wisconsin v. Yoder, supra, 406 U.S. at 215, 92 S.Ct. at 1533. We conclude that the District of Columbia’s stake in the eradication of sexual orientation discrimination is one such interest.

At the outset, we note that the District of Columbia Council is unmistakably of this opinion. In enacting the Human Rights Act, the Council placed sexual orientation discrimination among the category of social evils traditionally occupied by discrimination based on race, color, religion, national origin, sex, age, and so forth. See, e.g., D.C.Code § 1-2501 (1987). In the Council’s view, all forms of discrimination based on anything other than individual merit are equally injurious, to the immediate victims and to society as a whole.

The driving force behind the adoption of this legislation was the necessity for remembering, appropriately, what is embodied in our Bill of Rights — the respect for individual dignity in a diverse population. As the legislative history of the original 1973 regulation reveals:

[W]e would emphasize that our intent in this regulation is far-reaching. We are committed to the basic principle that each and every person seeking access to facilities and opportunities in the District of Columbia has a right to be considered for such access on the basis of individual merit and a right to expect reasonable accommodations to be made, in so considering, in deference to individual uniqueness. Somehow, in this country, we have tended to develop as a nation of people who find the differences among us very discomforting. This is especially ironic when we recall the reasons and the necessity for the founding of our nation in the first place. At this time in our history, and doubtless to a greater extent in the future, our population is diverse beyond describing. The day is long past, if, in fact, it ever existed, when we could identify groups of people who supposedly share common attitudes, characteristics, abilities or limitations. It is, then, in this spirit and through this regulation that we attempt to support the rights of individuals in all their diversity and potential.

Parker Report I, supra, at 2.

The Council determined that a person’s sexual orientation, like a person’s race and sex, for example, tells nothing of value about his or her attitudes, characteristics, abilities or limitations. It is a false measure of individual worth, one unfair and oppressive to the person concerned, one harmful to others because discrimination inflicts a grave and recurring injury upon society as a whole. To put an end to this evil, the Council outlawed sexual orientation discrimination in employment, D.C. Code § 1-2512 (1987), in real estate transactions, id. §§ 1-2515 to -2517, in public accommodations, id. § 1-2519, in educational institutions, id. § 1-2520, and elsewhere, id. § 1-2511. Such comprehensive measures were necessary to ensure that “[ejvery individual shall have an equal opportunity to participate fully in the economic, cultural and intellectual life of the District, and to have an equal opportunity to participate in all aspects of life....” Id. Only by eradicating discrimination based on sexual orientation, along with all other forms of discrimination unrelated to individual merit, could the District eliminate recurrent personal injustice and build a society which encourages and expects the full contribution of every member of the community in all their diversity and potential.

In 1977, armed with the legislative power newly granted to it by Home Rule, the Council elevated its earlier regulation onto a statutory footing. See D.C.Code §§ 1-2501 to -2557 (1987).²⁴ In so doing, it reaffirmed its belief that enforcement of the Human Rights Act is a matter of vital importance to the District. The committee report notes that enactment of the original human rights regulation as a statute would “affirmatively and forcefully convey to the executive and administrative agencies of the District Government the importance which the Council places on vigorous enforcement of its provisions.” Council of the District of Columbia, Committee Report on Bill 2-179, “The Human Rights Act of 1977,” at 3 (July 5, 1977) (available in the District Building). Enactment of the Human Rights Act was intended to “underscore the Council’s intent that the elimination of discrimination within the District of Columbia should have ‘the highest priority’_” Id. at 3. Among the statute’s basic purposes is “reinforcement of the Council’s view that the Human Rights Act is among our most important laws and is to be vigorously enforced by all agencies and officials of the District Government....” Id. at 1. From the legislative history, there can be no doubt that the Council regards the eradication of sexual orientation discrimination as a compelling governmental interest. Cf. Howard University v. Best, 484 A.2d 958, 978 (D.C.1984) (sex discrimination); Greater Washington Business Center v. District of Columbia Commission on Human Rights, 454 A.2d 1333, 1337 (D.C.1982) (same).

While not lightly to be disregarded, the Council’s strong feelings do not resolve the issue whether its ban on sexual orientation discrimination represents a compelling governmental interest. That is a question of law and “[i]t is emphatically the province of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). Here, the question presented is a novel one. Although it is well settled that government has a compelling interest in the eradication of other forms of discrimination, such as that based on race, e.g., Bob Jones University v. United States, supra, 461 U.S. at 604, 103 S.Ct. at 2035, or sex, e.g., Roberts v. United States Jaycees, 468 U.S. 609, 625, 104 S.Ct. 3244, 3253, 82 L.Ed. 2d 462 (1984), no appellate court has had to answer that question in the context of sexual orientation discrimination.

We approach our task, therefore, with more than a little trepidation. Our society is built upon a heterosexual model. We are met at the outset with centuries of attitudinal thinking, often colored by sincerely held religious beliefs, that has obscured scientific appraisal and stunted the growth of legal theories protecting homosexual persons from invidious discrimination. We know one basic fact — that homosexual and bisexual citizens have been part of society from time immemorial. These orientations, like that of heterosexuals, have cut across all diverse classifications — race, sex, national origin, and religion, to name but a few. After careful reflection, we cannot conclude that one’s sexual orientation is a characteristic reflecting upon individual merit.

Modern research on sexual orientation began with the investigation of Alfred C. Kinsey and his associates into human sexual behavior. From his study of twelve thousand white males, still the largest of its kind, Kinsey reported that only 50% had neither overt nor psychic homosexual experiences after the onset of adolescence. A. Kinsey, W. PomeROY & C. Martin, Sexual BEHAVIOR IN THE HUMAN MALE 650-51 (1948). Another 37% had had at least some overt homosexual experience to the point of orgasm between adolescence and old age, while the remaining 13% reacted erotically to other males without having physical contacts. Id. Almost half of his sample had both heterosexual and homosexual experiences at some point during their lives. Id. Kinsey’s findings challenged the popular assumption that the vast majority of people are either exclusively heterosexual or exclusively homosexual and suggested that instead individual sexual responses and behavior fall somewhere between these extremes for some 46% of the population. See id. While stressing the existence of a continuum, for convenience Kinsey adopted a seven-point scale, with zero denoting the exclusively homosexual and six the exclusively heterosexual. Id. at 636-50. The Kinsey scale continues to be relied upon today. Shortly afterwards, Kinsey found a similar diversity of sexual responses and behavior among women. A. Kinsey, W. Pomeroy, C. Martin & P. Geb-hard, Sexual Behavior in the Human Female 473-74 (1953). At a minimum, Kinsey’s research revealed the complexity and diversity of human sexual orientations and prompted considerable further inquiry.

As yet, there is no scientific agreement as to the origins of heterosexual, bisexual or homosexual orientation. Although various biological, psychoanalytic and social learning theories have been advanced, none has won common acceptance. See J. Money & A. Ehrhardt, Man and Woman, Boy and Girl 229 (1972) (hereinafter Man and Woman, Boy and Girl); Acosta, Etiology and Treatment of Homosexuality, 4 Archives Sexual Behav. 9,13-18 (1975); Mac-Culloch & Waddington, Neuroendocrine Mechanisms and the Aetiology of Male and Female Homosexuality, 139 J. Brit. Psychiatry 341, 341 (1981). On the other hand, several popular theories have been disproved. A. Bell, M. Weinberg & S. Hammersmith, Sexual Preference — Its Development in Men and Women 210-11 (1981) (hereinafter Sexual Preference — Its Development in Men and Women). Some researchers posit that sexual orientation may have multiple roots. Id. It is generally agreed, however, that individual sexual orientation develops at least by adolescence, id. at 186-87, 211, 222, if not during childhood, id.; M. Saghir & E. Robins, Male & Female Homosexuality 17-31 (1973); Marmor, Overview: The Multiple Roots of Homosexual Behavior, in Homosexual Behavior: A Modern Reappraisal 3, 19-21 (J. Marmor ed. 1980); Storms, Theories of Sexual Orientation, 38 J. Personality & Soc. Psychology 783 (1980); Warren, Homosexuality and Stigma, in Homosexual Behavior: A Modern Reappraisal, supra, at 125-26, or even earlier, Man and Woman, Boy and Girl, supra, at 235.

It was found in one study of almost fifteen hundred heterosexual and homosexual men and women that homosexual adults had typically experienced sexual feelings in that direction about three years before engaging in intimate homosexual activity. Sexual Preference — Its Development in Men and Women, supra, at 187-88. There is no reliable evidence that adult homosexual orientation — the attempt is never made in the opposite direction — can be “cured.” Id. at 217; W. Churchill, Homosexual Behavior Among Males 283-89 (1967); Coleman, Changing Approaches to the Treatment of Homosexuality: A Review, in Homosexuality: Social Psychological and Biological Issues 81-82 (W. Paul & J. Weinrich eds. 1982); Marmor, Clinical Aspects of Homosexuality, in Homosexual Behavior: A Modern Reappraisal, supra, at 277. The Alfred C. Kinsey Institute for Sex Research has concluded from its empirical studies that

[Homosexuality is as deeply ingrained as heterosexuality_ [Exclusive homosexuality probably is so deeply ingrained that one should not attempt or expect to change it. Rather, it would probably make far more sense simply to recognize it as a basic component of a person’s core identity_ Neither homosexuals nor heterosexuals are what they are by design. Homosexuals, in particular, cannot be dismissed as persons who simply refuse to conform. There is no reason to think it would be any easier for homosexual men or women to reverse their sexual orientation than it would be for heterosexual readers to become predominantly or exclusively homosexual.

Sexual PREFERENCE — Its Development in Men and Women, swpra, at 190, 211, 222.

The idea that homosexuality is a form of mental disorder has been widely abandoned. See Resolution of the House of Representatives of the American Psychological Association (1975); Resolution No. 7514 of the American Public Health Association (1975); Resolution of the American Psychiatric Association (Dec. 15, 1973). Rejection of this notion followed upon studies revealing that heterosexual and homosexual men and women performed equally on standard psychological tests and were similarly free of psychopathology. E.g., M. Freedman, Homosexuality and Psychological Functioning (1971); Hooker, The Adjustment of the Male Overt Homosexual, 21 J. Projective Techniques 18 (1957). Gay people do experience particular psychological stresses, however, due to prejudice against them in social settings. See A. Bell & M. Weinberg, Homosexualities — A Study of Diversity Among Men and Women 195-216 (1978) (hereinafter Homosexual ities — A Study of Diversity Among Men and Women).

Just as it is impossible to typecast heterosexually oriented persons (or, for that matter, members of racial minorities or women), gay people cannot be neatly pigeonholed into any recognizable category. Id. passim. A homosexual orientation tells nothing reliable about abilities or commitments in work, religion, politics, personal and social relationships, or social activities, except to the extent that in many areas the lives of gay people are frequently conditioned by the attitudes of others. Id. at 139-216. It is often forgotten that “homosexuality encompasses far more than people’s sexual proclivities. Too often homosexuals have been viewed simply with reference to their sexual interests and activity. Usually the social context and psychological correlates of homosexual experience are largely ignored, making for a highly constricted image of the persons involved.” Homosexualities — A Study of Diversity Among Men and Women, supra, at 24-25; see also Paul, Social Issues and Homosexual Behavior: A Taxonomy of Categories and Themes in Anti-Gay Argument (discussing false stereotypes affecting gay people) in Homosexuality: Social, Psychological and Biological Issues, supra, at 29, 46-52.

Despite its irrelevance to individual merit, a homosexual or bisexual orientation invites ongoing prejudice in all walks of life, ranging from employment to education, and for most of which there is currently no judicial remedy outside the District of Columbia or the State of Wisconsin. See generally Rivera, Queer Law: Sexual Orientation Law in the Mid-Eighties (Part II), 11 U. Dayton L.Rev. 275 (1986) (citing cases); id. (Part I), 10 U. Dayton L.Rev. 459 (1985) (same); Rivera, Recent Developments in Sexual Preference Law, 30 Drake L.Rev. 311 (1980-81) (same); Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L.J. 799 (1979) (same). Illustrative is a 1950 Senate investigation into the employment of homosexual persons and “other moral perverts” in the federal government. It concluded that even one “sex pervert in a government agency tends to have a corrosive influence upon his fellow employees_ One homosexual can pollute a government office.” Senate Committee on Expenditures in the Executive Departments, Employment of Homosexuals and Other Sex Perverts in Government, S.Doc. No. 241, 81st Cong., 2d Sess. 3-5 (1950). As a result of this reasoning it was not until 1975 that the federal government lifted its ban on the employment of homosexual workers. See generally Slovenko, The Homosexual and Society: A Historical Perspective, 10 U. Dayton L.Rev. 445, 451 (1985). Erupting into violence, social prejudice sometimes takes the form of unprovoked attacks on those perceived to be gay. See National Gay Task FORCE, Anti-Gay/Lesbian Victimization (1984); Harry, Derivative Deviance: The Cases of Extortion, Fag-Bashing, and Shakedown of Gay Men, 19 CRIMINOLOGY 546 (1982); Russo & Humphries, Homosexuality and Crime, in 2 Encyclopedia of CRIME and Justice 866, 869-70 (S. Kadish ed. 1983).

Such discrimination has persisted throughout most of history. See generally V. Bullough, Homosexuality: A History (1979); J. Katz, Gay/Lesbian Almanac: A New Documentary (1983); J. Katz, Gay American History (1976); Historical Perspectives on Homosexuality (S. Licata & R. Petersen eds. 1981) (reprinting 6 J. Homosexuality (1980-81)). In perhaps its most virulent form, prejudice against gay people led to the Nazi concentration camps. There, homosexual prisoners were distinguished, like their unfortunate fellows, by a cloth badge, in their case one which singled them out for unusual atrocities. See Lautman, The Pink Triangle — The Persecution of Homosexual Males in Concentration Camps in Nazi Germany, in Historical Perspectives on Homosexuality, supra, at 141.

Although by no means a prerequisite to our conclusion of a compelling governmental interest, we note parenthetically that sexual orientation appears to possess most or all of the characteristics that have persuaded the Supreme Court to apply strict or heightened constitutional scrutiny to legislative classifications under the Equal Protection Clause. See J. Ely, Democracy and Distrust 162-64 (1980); L. Tribe, American Constitutional Law § 15-13, at 944 n. 17 (1978); Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harv.L.Rev. 1285 (1985); Note, An Argument for the Application of Equal Protection Heightened Scrutiny to Classifications Based on Homosexuality, 57 So.Cal.L.Rev. 797 (1984); cf. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 2846 n. 8, 92 L.Ed.2d 140 (1986) (no Equal Protection Clause claim raised in unsuccessful “right to privacy” challenge to sodomy statute as applied to gay defendant); Gay Law Students Association v. Pacific Telephone & Telegraph Co., 24 Cal.3d 458, 474-75, 595 P.2d 592, 602, 156 Cal.Rptr. 14, 24 (1979) (equal protection guarantee of state constitution violated by public utility’s exclusion of gay people from employment opportunities).

If we were to measure these characteristics as against these standards we would find that scientific literature characterizes sexual orientation as a status which is “determined by causes not within the [individual’s] control,” see Mathews v. Lucas, 427 U.S. 495, 505, 96 S.Ct. 2755, 2762, 49 L.Ed. 2d 651 (1976) (discussing illegitimacy), and one not generally subject to change, see Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973) (plurality opinion) (discussing sex, race and national origin); Parham v. Hughes, 441 U.S. 347, 351, 99 S.Ct. 1742, 1745, 60 L.Ed.2d 269 (1979) (plurality opinion) (same). Obviously, one is no less heterosexual, bisexual or homosexual merely because he or she is celibate. Homosexually and bisexually oriented persons have been “subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976) (per curiam) (discussing elderly). Sexual orientation “bears no relation to the individual’s ability to participate in and contribute to society,” see Mathews v. Lucas, supra, 427 U.S. at 505, 96 S.Ct. at 2762, and “[discriminations are not to be supported by merely fanciful conjecture,” Hartford Co. v. Harrison, 301 U.S. 459, 462, 57 S.Ct. 838, 840, 81 L.Ed. 1223 (1937). This country has a “long and unfortunate history” of discrimination based on sexual orientation. See Frontiero v. Richardson, supra, 411 U.S. at 682, 684, 93 S.Ct. at 1769 (discussing sex discrimination); see also Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 312-13, 96 S.Ct. at 2566; (discussing age discrimination); San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28-29, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973) (discussing wealth discrimination). Finally, due to the legal and social penalties commonly triggered by public acknowledgement of homosexuality of bisexuality, persons so oriented may constitute “discrete and insular minorities” whose interests have traditionally been neglected by “the operation of those political processes ordinarily to be relied upon to protect minorities.” See United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783-84 n. 4, 82 L.Ed. 1234 (1938); see also Massachusetts Board of Retirement v. Murgia, supra, 427 U.S. at 313, 96 S.Ct. at 2567 (discussing elderly); Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971) (discussing aliens).

The compelling interests, therefore, that any state has in eradicating discrimination against the homosexually or bisexually oriented include the fostering of individual dignity, the creation of a climate and environment in which each individual can utilize his or her potential to contribute to and benefit from society, and equal protection of the life, liberty and property that the Founding Fathers guaranteed to us all.

Speaking of discrimination in other areas, the United States Commission on Civil Rights has noted that discrimination hurts society in ways that are subtle, and often unseen:

Discriminatory actions by individuals and organizations are not only pervasive, occurring in every sector of society, but also cumulative, with effects limited neither to the time nor the particular structural area in which they occur. This process of discrimination, therefore, extends across generations, across, organizations, and across social structures in self-reinforcing cycles, passing the disadvantages incurred by one generation in one area to future generations in many related areas.

******

[The interlocking process of discrimination, started by past events, now routinely bestows privileges on some and penalties on others.] This process is also self-perpetuating. Many normal, seemingly neutral, operations of our society create stereotyped expectations that justify unequal results; unequal results in one area foster inequalities in opportunity and accomplishment in others; the lack of opportunity and accomplishment confirms the original prejudices or engenders new ones that fuel the normal operations generating unequal results.

... [T]he process of discrimination involves many aspects of our society. No single factor sufficiently explains discrimination, and no single means will suffice to eliminate it. We must continuously examine such elements of our society as our history of de jure discrimination, deeply ingrained prejudices, inequities based on economic and social class, and the structure and function of all our economic, social, and political institutions in order to understand their part in maintaining or countering discriminatory processes.

It may be difficult to identify precisely all aspects of discriminatory processes and assign those parts their appropriate weight. But understanding how discrimination works starts with an awareness that it is a process, and that to avoid perpetuating it, we must carefully assess the context and consequences of our everyday actions.

U.S. Commission on Civil Rights, Affirmative Action in the 1980s: Dismantling the Process of Discrimination 12-14 (1981); see also Brest, The Supreme Court 1975 Term — Forward: in Defense of the Anti-discrimination Principle, 90 Harv.L.Rev. 1, 8 (1976) (“Decisions based on assumptions of intrinsic worth and selective indifference inflict psychological injury by stigmatizing their victims as inferior. Moreover, because acts of discrimination tend to occur in pervasive patterns, their victims suffer especially frustrating, cumulative and debilitating injuries”).

“As long as homosexual men and women, as well as other groups of people who are simply seen as ‘different’ from the majority of American citizens, continue to be viewed through stereotypical thinking, our society will pay the price inevitably exacted by fear and ignorance.” Homosexualities — A Study of Diversity Among Men and Women, supra, at 25; see also EEOC v. Mississippi College, 626 F.2d 477, 489 (5th Cir.1980) (“the government has a compelling interest in eradicating discrimination in all forms”), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981); Russell v. Belmont College, 554 F.Supp. 667, 677 (M.D.Tn.1982) (“this nation has a strong public policy against discrimination not only on the basis of sex but in all forms”); cf address by Melvin Boozer to 1980 Democratic National Convention (“I know what it means to be called a nigger, and I know what it means to be called a faggot, and I can sum up the difference in one word: none”), quoted in Pearson, Homosexual Rights Activist Melvin Boozer Dies at 41, The Washington Post, Mar. 10, 1987, at B6, col. I.²⁵

We consider that the Council of the District of Columbia acted on the most pressing of needs when incorporating into the Human Rights Act its view that discrimination based on sexual orientation is a grave evil that damages society as well as its immediate victims. The eradication of sexual orientation discrimination is a compelling governmental interest.

D. Balancing the Compelling Governmental Interest against the Burden on Religious Exercise

Given that the District of Columbia has a compelling governmental interest in eradicating sexual orientation discrimination, we must determine whether that interest outweighs the burden enforcement of the Human Rights Act would impose on Georgetown’s religious exercise.

In this case, compelling equal access to the tangible benefits, without requiring the intangible “endorsement” contained in “University Recognition,” imposes a relatively slight burden on Georgetown’s religious practice. As Georgetown itself concedes, “[t]he only tangible benefits plaintiffs could receive by the grant of official recognition are relatively insignificant— such as mailing and computer labeling services.” Supplemental Brief at 2. It then argues that “[s]uch minor perquisites cannot outweigh the substantial burden on the University’s religious liberty that would flow from compelled recognition of the student groups.” Id. But its argument fails because the “substantial burden” to which it refers — compulsion to grant the intangible “endorsement” contained in “University Recognition” — is not required by the Human Rights Act. By Georgetown’s own admission, what the Human Rights Act actually does require — equal distribution of the tangible benefits — is considerably less burdensome.

Our conclusion that the burden on religious liberty does not outweigh the District’s compelling interest receives additional support from the facts that Georgetown voluntarily gives the student groups the fewer tangible benefits that come with “Student Body Endorsement” and that it has never objected to the student groups meeting on campus. Without interference from the Georgetown administration, the student groups are an active force in the university community. GPGU, for example, has held campus meetings almost weekly, hosting discussions, speakers, and educational and social events. Finally, the burden imposed upon Georgetown’s religious exercise is further diminished by the parties’ representations that GPGU has already been given a mailbox, one of the tangible benefits theoretically in dispute.

E. Enforcement of the Human Rights Act is the Least Restrictive Means Available

Finally, even though the District of Columbia’s compelling interest in eradicating sexual orientation discrimination outweighs the burden that compliance with the Human Rights Act would impose on Georgetown’s religious exercise, the statute can be enforced only if it is the least restrictive means of attaining that goal. Thomas v. Review Board, supra, 450 U.S. at 718, 101 S.Ct. at 1413.

Here, that condition is met. To tailor the Human Rights Act to require less of the University than equal access to its “facilities and services,” without regard to sexual orientation, would be to defeat its compelling purpose. The District of Columbia’s overriding interest in eradicating sexual orientation discrimination, if it is ever to be converted from aspiration to reality, requires that Georgetown equally distribute tangible benefits to the student groups. Other than compelling the equal provision of tangible benefits, there are no available means of eradicating sexual orientation discrimination in educational institutions that would be less restrictive of Georgetown’s religious exercise.

V

CONCLUSION

The Human Rights Act does not require a grant of “University Recognition” because, in the particular scheme at Georgetown University, that status includes a religiously based “endorsement” of the recipient student group. But the Human Rights Act does demand that Georgetown make its “facilities and services” equally available without regard to sexual orientation. Those “facilities and services” include the tangible benefits that come with “University Recognition.” Georgetown denied tangible benefits on the basis of sexual orientation and in so doing violated the Human Rights Act. The University’s free exercise defense does not exempt it from compliance with the statute, because the District of Columbia’s compelling interest in eradicating sexual orientation discrimination outweighs any burden that equal provision of the tangible benefits would impose on Georgetown’s religious exercise. On statutory rather than constitutional grounds, we therefore affirm the trial court’s holding that Georgetown is not required to grant the student groups “University Recognition.” We reverse the trial court’s ruling that the Free Exercise Clause relieves Georgetown from its statutory obligation to provide the tangible benefits without regard to sexual orientation. We order the trial court to enter judgment accordingly.

So ordered.

1 . D.C.Code § 1-2520 (1987) provides:

It is an unlawful discriminatory practice ... for an educational institution:

(1) To deny, restrict, or to abridge or condition the use of, or access to, any of its facilities and services to any person otherwise qualified, whotly or partially, for a discriminatory reason, based upon the race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, political affiliation, source of income or physical handicap of any individu-al_ [Emphasis added.]

Section 1-2501 provides:

It is the intent of the Council of the District of Columbia, in enacting this chapter, to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit, including, but not limited to, discrimination by reason of [various characteristics including sexual orientation]. Section 1-2502 (28) provides:

"Sexual orientation" means male or female homosexuality, heterosexuality and bisexuality, by preference or practice.

2 . Chief Judge Pryor and Judges Mack, Newman, Belson and Nebeker agree that the Human Rights Act does not require Georgetown to grant its particular form of "University Recognition" to the student groups. On that issue, the trial court's judgment is affirmed. However, Chief Judge Pryor and Judges Mack, Newman, Ferren and Terry conclude that the District of Columbia's compelling interest in the eradication of sexual orientation discrimination requires Georgetown, despite its religious objection, to obey the Human Rights Act’s mandate that the University provide equal tangible benefits to the student groups. On that issue, the trial court’s judgment is reversed.

3 . The Society of Jesus was founded in 1534 by St. Ignatius of Loyola. Since then it has become a major religious order stationed in all parts of the world. In this country, since the 18th century, it has been principally engaged in education. See generally J. Aveling, The Jesuits (1982); T. Campbell, The Jesuits: 1534-1921 (1977).

4 . In a section headed "Religion and Ethical Norms,” the Faculty Handbook states:

While Georgetown University is operated under Catholic auspices, there is no regulation which requires all members of the Faculty to be members of the Catholic faith. A Faculty member is expected to maintain a standard of life and conduct consistent with the philosophy and objectives of the University. Accordingly, the integrity of the University requires that all Faculty members shall maintain a sympathetic attitude towards Catholic beliefs and practices, and shall make a sincere effort to appreciate such beliefs and practices. Members of the Faculty who are Catholics are expected to set a good example by the regular practice of Catholic duties.

Id. at 12-13.

5 . The purposes of GPGU are:

(1) Supportive

To provide an atmosphere in which gay people can develop a sense of pride, self-worth, awareness and community.

(2) Educational

To provide information and encourage understanding and dialogue between gay and non-gay people.

(3) Developmental

To provide a forum for the development of responsible sexual ethics consonant with one’s personal beliefs.

(4)Social

To establish a program of activities which reflect the above purposes.

GPGU Constitution (emphasis added). Membership, regardless of sexual orientation, is open to students, faculty, staff members and alumni.

6 . The purposes of GRC are to:

(1) Foster discussion and research on the effect of law on lesbians and gay men in such areas as:

a. criminal law

b. family law

c. immigration law

d. military and national security law

e. labor and employment law

f. free speech and association

g. rights of gay students.

(2) Provide lesbians and gay men entering the Law Center with information about Washington's gay community, including educational, cultural, religious, social and medical services.

(3) Disseminate information on the existence of pro bono work opportunities in the area of gay rights.

(4) Cooperate with other gay law student organizations in areas of gay rights law.

(5) Offer speakers and seminars on gay legal issues appropriate for the Law Center and the legal community.

GRC Constitution (emphasis added in paragraph (2)).

7 . Only one item of this description is contained in the record. It is entitled "A Draft Statement of the Educational Goals and Objectives of the Main Campus" and was prepared in September 1978 by the Office of the Executive Vice President for Academic Affairs. In six pages of single-spaced typeface, it notes that "Georgetown, by virtue of its Catholic and Jesuit origins, has a special and richly informed view of reality, one that celebrates human dignity in a Godly context." Id. at 1. The statement stresses the value of a liberal education in light of the "Georgetown ideal [of] the education of the whole person.” Id. Among the essentials of a Jesuit liberal education, "[tjheological reflection and religious practice are encouraged and given priority.” Id. at 3.

8 .According to "What Your Club Needs To Know,” the criteria in force during that academic year, a "Student Government Charter" granted a group "official recognition as a legitimate activity of the student body.” Id. at 3. The term "Student Government Charter" does not appear in "Recognition Criteria," but essentially the same attributes are contained in "Student Body Endorsement."

9 . Although Dean Schuerman did not expressly say so, the student groups, the University and the trial court all treated his letter as a denial of “University Recognition.”

10 . In other words, Dean Schuerman claimed that the University’s position allowed GPGU to achieve most, if not all, of the purposes set forth in its constitution. See GPGU Constitution 0quoted supra note 5).

11 . Shortly afterwards, a substantial majority at a Law Center faculty meeting voted to endorse CSFL’s approval of GRC’s petition for "recognition."

12 . Georgetown also counterclaimed to prevent the student groups from using the words "Georgetown University" in their names. It has not appealed from the trial court’s dismissal of the counterclaim. That issue is not before us and Judge Mack expresses no opinion, expressly or impliedly, thereupon.

13 . While none of the parties has raised this issue, amicus Arthur B. Spitzer argues forcefully that Judge Braman misconstrued the Human Rights Act. We cannot ignore the argument of an amicus curiae on this potentially dispositive issue. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 697, 104 S.Ct. 2694, 2699, 81 L.Ed.2d 580 (1984); Fry v. United States, 421 U.S. 542, 545 n. 5, 95 S.Ct. 1792, 1794-95 n. 5, 44 L.Ed.2d 363 (1975). Avoidance of the constitutional issue by the correct statutory interpretation would be the appropriate course even if it had not been briefed, United States v. Albertini, supra, 472 U.S. at 679-80, 105 S.Ct. at 2902; United States v. Grace, 461 U.S. 171, 175-76, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983), or if it had never been considered by the lower court, Capital Cities Cable, Inc. v. Crisp, supra, 467 U.S. at 697, 104 S.Ct. at 2699; United States v. Clark, 445 U.S. 23, 27-28, 100 S.Ct. 895, 899-900, 63 L.Ed.2d 171 (1980).

14 . An appellate court cannot select its facts. It deals with concrete cases and the facts found by the trial court set the limits of its decision. Here, a critical fact is the trial court’s finding that Georgetown’s particular scheme of “University Recognition" includes an institutional "endorsement" of the recipient student group. Judge Ferren accepts that factual finding but ignores its First Amendment implications. Post at 112-15 & 129 note 15. Judge Terry, on the other hand, appears to agree with the entire court except Judge Ferren that the Human Rights Act requires no "endorsement.” Post at 166-67.

15 . A public university may not impose content-based restrictions on speech, and it may not use its student body recognition process to comment upon the rightness or wrongness of homosexual conduct. Healy v. James, 408 U.S. 169, 180-84, 92 S.Ct. 2338, 2345-47, 33 L.Ed.2d 266 (1972); see also, e.g., Gay Student Services v. Texas A & M University, 737 F.2d 1317, 1326-30 (5th Cir.1984), cert. denied and appeal dismissed, 471 U.S. 1001, 105 S.Ct. 1860, 85 L.Ed.2d 155 (1985); Gay Lib v. University of Missouri, 558 F.2d 848, 852-57 (8th Cir.1977); Gay Alliance of Students v. Matthews, 544 F.2d 162, 164-67 (4th Cir.1976); Gay Students Organization of the University of New Hampshire v. Bonner, 509 F.2d 652, 657-62 (1st Cir.1974); Gay Activists Alliance v. Board of Regents of the University of Oklahoma, 638 P.2d 1116, 1119-23 (Okla.1981). A private university, such as Georgetown, is under no such constitutional restrictions. See, e.g., Williams v. Howard University, 174 U.S.App.D.C. 85, 87, 528 F.2d 658, 660, cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed. 2d 123 (1976); Greenya v. George Washington University, 167 U.S.App.D.C. 379, 382-85, 512 F.2d 556, 559-62, cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975); Spark v. Catholic University of America, 167 U.S.App.D.C. 56, 80-81, 510 F.2d 1277, 1281-82 (1975); cf. Cover, The Supreme Court 1982 Term — Foreword: No-mos and Narrative, 97 Harv.L.Rev. 4 (1983) (discussing obligation of courts to fully justify forced imposition of legal norms that threaten autonomy of cultural communities committed to alternative moral visions of society).

16 . At no stage of this litigation have the parties requested that the "endorsement" and the tangible benefits be treated separately. The case has been litigated throughout on an "all or nothing” basis. The student groups nevertheless insist that they demand only equal tangible benefits and are unconcerned about the University’s "endorsement.” In the words of the District of Columbia: “The gay students and their associations do not ask for more than equal access to the incidental facilities and services which the trial court found had been discriminatorily denied; they do not seek university approval. ... [Tjhey would be fully satisfied if the university permits equal access to the incidental privileges without university ‘recognition."’ Supplemental Brief at 3 (emphasis in original). On the other hand, it is towards a compelled “endorsement" that Georgetown's religious objection is directed.

17 . The First Amendment provides, in relevant part: "Congress shall make no law ... prohibiting the free exercise [of religion]; or abridging the freedom of speech_" U.S. Const, amend. I.

18 . As early as 1813, one court at least partly anticipated the Supreme Court’s distinction between religiously motivated actions and the underlying beliefs or the expression of those beliefs. Departing from the English common law, a New York court held that the state constitution protected a Roman Catholic priest against compulsion to reveal in testimony confidences he had received in the confessional. People v. Philips (N.Y.Ct.Gen.Sess. June 14, 1813), reported in W. Sampson, The Catholic Question in America (New York 1813 and photo, reprint 1974). The court relied upon the First Amendment, as well as the state constitution, even though it was not until 1940 that the Supreme Court made the federal free exercise guarantee directly applicable to the states through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). The Philips court held: "Although we differ from the witness and his brethren, in our religious creed ... [t]hey are protected by the laws and constitution of this country, in the full and free exercise of their religion, and this court can never countenance or authorize the application of insult to their faith, or of torture to their consciences." W. Sampson, supra, at 114.

19 . In one unspoken respect, Pacific Gas & Electric differs from the Barnette/Wooley line of cases upon which it relied. The Pacific Gas & Electric plurality, having found a burden on the utility’s speech, held that the government regulation could still be valid "if it were a narrowly tailored means of serving a compelling state interest," 106 S.Ct. at 913, but found no such interest present in that case. In Bamette/Woo-ley, as we have seen, the protection against compelled speech was absolute. The cases may be reconciled, however, by focusing on three factors, each of which puts Georgetown factually closer to Bamette/Wooley than to Pacific Gas & Electric.

First, no "endorsement" was threatened in Pacific Gas & Electric. The utility was required to act as a vehicle for the views of another, but not to express its approval or tolerance of them. 106 S.Ct. at 907, 911 n. 11. Thus, the burden on the utility’s First Amendment rights was of a degree considerably less intrusive than it is here. See id. at 915 (Marshall, J., concurring); id at 917-20 (Rehnquist, J., joined by White and Stevens, JJ., dissenting); id at 922-24 (Stevens, J., dissenting). Second, although we express no view as to the constitutional significance of this distinction, no religious objections were at issue in Pacific Gas & Electric, so that the Free Exercise Clause was not implicated as it would be here by the trial court’s construction of the Human Rights Act. Id. at 908-10. Finally, the Pacific Gas & Electric Court was divided as to the legal weight to be attached to the utility’s commercial nature. Compare id at 909, 912 (plurality opinion) with id. at 917 (Marshall, J., concurring); id. at 920-22 (Rehnquist, J., dissenting); id. at 922-24 (Stevens, J., dissenting). We believe that Georgetown, as a private, religiously affiliated university, whose existence is devoted to the generation of ideas rather than profit, has an interest considerably greater than that of a public utility in not being forced to publicly embrace moral positions with which it disagrees. Cf. Miami Herald Publishing Co. v. Tornillo, supra, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (no balancing test applied in striking down right-of-reply statute burdening newspaper’s First Amendment rights). This is not a question of government regulating speech by a business corporation, as in Pacific Gas & Electric, but of imposing official orthodoxy on controversial issues of religious, moral, ethical and philosophical importance, upon an entity whose role is to inquire into such matters. The First Amendment not only ensures that questions on difficult social topics will be asked, it also forbids government from dictating the answers.

Georgetown is accordingly shielded from a threatened "endorsement” by the absolute protection of Bamette/Wooley, rather than by the qualified protection of Pacific Gas & Electric. Cf. Harpaz, Justice Jackson’s Flag Salute Legacy: The Supreme Court Struggles to Protect Intellectual Individualism, 64 Texas L.Rev. 817, 902-12 (1986) (first tier of proposed two-tiered analysis of compelled expression cases concerns those "in which government compulsion creates a serious risk of forced conformity to government-favored ideas” by directly requiring individuals "to engage in speech against their will"; in such cases, no government justification would suffice if its "purpose is to encourage a particular idea").

20 . The Human Rights Act does, of course, guarantee equal status apart from that conferred by compelled expression. In this case, the student groups would be entitled to “University Recognition,” regardless of sexual orientation, if that status did not include an unwilling "endorsement."

21 . Georgetown does not contend that the tangible benefits constitute a forced subsidy of speech to which it is opposed. See, e.g., Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977). Judge Bel-son, joined by Judge Nebeker, therefore argues an issue that it is not before us. Post at 67-72 & note 14; see also Judge Ferren, joined by Judge Terry, post at 51-52 & 67 note 9. Even if it were presented, Abood nowhere stands for the proposition that forced subsidization is always unconstitutional. That case concerned the unwilling subsidization of offensive speech. The student groups here engage in a wide range of activities and on the record before us we have no knowledge what proportion of those endeavours, if any, is devoted to advocacy of the specific theory of sexual ethics to which Georgetown objects. Even if Abood applied, it would mean at most that the tangible benefits could be withheld up to that undetermined extent only.

Similarly, the unfounded assumption that the student groups are exclusively engaged in advocacy of the idea which Georgetown finds repugnant blinds Judge Belson and Judge Nebeker to the existence of Georgetown’s sexual orientation discrimination. Along with amicus Arthur B. Spitzer, they fail to recognize unambiguous signs, discussed in the text, that Georgetown took the predominantly homosexual composition of the student groups into account in denying them tangible benefits. Contrary to the views of Judge Belson and Judge Nebeker, Georgetown’s simultaneous objection to an idea it finds morally offensive is not enough to relieve it from a finding of discrimination under the Human Rights Act.

22 . See D.C.Code § l-2503(b) (1987) (permitting religious or political organizations, in order to promote their religious or political principles, to give preference to persons of the same religious or political persuasion); see also id. § l-2503(a) ("business necessity” exception in cases of unintentional discrimination); id. § 1-2513(a) (exception in employment practices for bona fide seniority or employment benefit systems); id. § 1-2513(b) (exception in police officer and firefighter cadet programs for minimum and maximum age limits); id. § 1-2518 (exception in rental or leasing practices for owner-occupied accommodations); id. § l-2521(a) (exception in education practices for single-sex schools below graduate level); id. § 1-2524 (exception for approved affirmative action plans).

23 . The student groups contend, on the one hand, that Georgetown functions as a secular educational institution and meets none of the established criteria for religious education which would permit it to invoke the Free Exercise Clause. We disagree. Tilton v. Richardson, 403 U.S. 672, 687, 91 S.Ct. 2091, 2100, 29 L.Ed.2d 790 (1971) (institution may have both secular and sectarian characteristics); see also L. Tribu, American Constitutionai. Law §§ 14-6, -7 (1978) (definition of religion more liberal under Free Exercise Clause than under Establishment Clause); Note, Towards a Constitutional Definition of Religion, 91 HarvJL.Rev. 1056, 1083-89 (1978) (same). On the other hand, they argue that Georgetown is barred from asserting its free exercise defense by the Establishment Clause of the First Amendment. Again, we disagree. Granfield v. Catholic University of America, 174 U.S.App.D.C. 183, 191-93, 530 F.2d 1035, 1043-45 (no standing to assert Establishment Clause claim when seeking only "incomplete and transitory enforcement of the prohibitions of the clause” and without making the responsible government official party to the litigation), cert. denied, 429 U.S. 821, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976). We also reject the student groups’ contention that the University’s acceptance of certain federal funding on condition that it not be used for “religious worship or a sectarian activity,” 20 U.S.C. § 1132e(c) (1982), operates as a waiver of its right to raise a free exercise defense. Murphy v. Villanova University, 547 F.Supp. 512, 520-21 (E.D.Pa.1982), aff’d, 707 F.2d 1402 (3d Cir.1983) (no standing to sue for breach of federal statute in absence of private cause of action); California v. Sierra Club, 451 U.S. 287, 292-93, 101 S.Ct. 1775, 1778-79, 68 L.Ed.2d 101 (1981) (setting forth standards for implying private cause of action under federal statute).

24 . Since the District of Columbia’s pioneering legislation in this area, similar statutory protections have been enacted in 1982 by the State of Wisconsin. See codification in scattered sections of Wis.Stat.Ann. (listed in West General Index 1986 under “Discrimination — sexual orientation"). Many other states have executive orders prohibiting sexual orientation discrimination in public employment. In addition, a considerable and growing number of cities and counties nationwide have some form of gay rights ordinance. See generally National Gay Task Force, Gay Rights Protections in the United States and Canada (1985). This mounting response to the problems gay people face may be compared to the local antidiscrimination measures which paved the way for the federal Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1982). See generally, e.g., Rosen, The Law and Racial Discrimination in Employment, 53 Calif. L.Rev. 729, 775-76 (1965); Sutin, The Experience of State Fair Employment Commissions — A Comparative Study, 18 Vand.L.Rev. 965 (1965); cf. New York State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (Brandéis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country”).

25 . Judge Bacon erred in holding that only a "national" policy against discrimination based on sexual orientation could constitute a compelling governmental interest. See Roberts v. United States Jaycees, supra, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (state law against sex discrimination, more extensive than its federal counterpart, furthered compelling governmental interest and outweighed First Amendment burden); Braunfeld, supra, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (state Sunday closing law furthered compelling governmental interest and outweighed First Amendment burden); Prince v. Massachusetts, supra, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed.2d 645 (state child labor law furthered compelling governmental interest and outweighed First Amendment burden); see also District of Columbia v. John R. Thompson Co., 346 U.S. 100, 109, 73 S.Ct. 1007, 1012, 97 L.Ed. 1480 (1953) (District of Columbia has same power as state to enact "legislation which prohibits discrimination’’); cf. Whalen v. Roe, 429 U.S. 589, 597, 97 S.Ct. 869, 875, 51 L.Ed.2d 64 (1977) (“we have frequently recognized that individual states have broad latitude in experimenting with possible solutions to problems of vital local concern").

1 . Similarly, in Gillette v. United States, 401 U.S. 437, 461-62, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971), the Court refused to extend the Selective Service Act’s conscientious objector exemption to those who espoused a religious objection not to "war in any form" but only to particular wars.