The Supreme Court is facing the issue of whether a state university denies constitutional rights to a "gay liberation" organization by refusing it a campus meeting room.
In the past, the court has generally shied away from confronting head-on cases involving homosexuals. For example, on the opening day of its current term, the court let stand two lower-court decisions against two high school teachers who admitted being homosexuals but neither admitted being homosexuals but neither admitted nor were accused of improper conduct toward students.
In the pending case, however, the justice face a tougher choice: whether to let stand or review a decision favorable to the homosexuals rights cause.
In one of the teacher cases, the justices on Oct. 3 refused without comment to review a Washington state Supreme Court ruling that the Tacoma school board could fire 13-year faculty member James M. Gaylord for "immorality" after he admitted he was homosexual.
In the second case, the justices refused, also without comment, to review a New Jersey Supreme Court decision that the Paramus school board could order John Gish, former president of the state Gay Activists Alliance, to be examined by a psychiarist.
The pending case raises a different kind of question: can a state university constitutionally withhold formal recognition of a student organization, composed largely of homosexuals, that has the basic purpose of providing a forum for discussions about homosexuality?
The Eighth U.S. Circuit Court of Appeals ruled that the University of Missouri, by denying he Gay Lib Organization a place to meet on the Columbia campus, violated the groups' First Amendment, rights of freedom of the speech and assembly.
The university petitioned the Supreme Court to review the ruling. It takes four of the nine justices to grant review. If the Court decides to hear the case, the resulting decision would have nationwide application.
If the Court declines to hear the case, however, the appeals court ruling will be effective, at least in publicly financed universities, in the the seven states comprising the Eighth Circult: Arkansas, North Dakota and South Dakota.
When the justices will decide if they will grant review is unknown.
The case arises in part from a Missouri law - similar to statutes in numerous other state - that makes it a felony for anyone to commit sodomy, the "detestable and abominable crime against nature."
The GLO first sought formal recognition in 1971 in order to provide an on-campus "dialogue" between homosexuals and heterosexuals. It later cited a need for understanding of homosexuals, "candor and compassion," and for healing the "scars of past repression."
Two student groups and a student/faculty committee, each with a say about recognition , recommended that the GlO be recognized, which, underuniversity policy, would not constitute approval of the organization's aims and activities.
But Dean of Student Affaris Edwin Hutchins vetoed the recommendation out of "aconcern for the impact of recognition on the general relationship of the university to the public at large."
President C. Brice Ratchford backed Hutchins. The Board of Curators, however appointed Jefferson City lawyer Cullen Coil to take testimony from experts and laymen.
A psychiatrist, Dr. Harold Voth. testified that formal recognitionwould tend to "perpetuate" or "expand" homosexual behavior. He inferred this from an assumption "that wherever you have a convocation of homosexuals, you are going to have increased homosexual activites, which of course, includes sodomy."
In contrast, Dr. Robert Kolodny, testified that allowing the GLO to meet on campus would have no "discernibile effect upon the sexual behavior of the student population." He said he assumed this from "actual knowledge of what, in fact, has occured on several campuses where homosexual groups have been allowed to acquire office space, hold social functions and sponsor university activities."
After two days of hearings, Coil concluded that the board should rule against the GLO, partly because recognition would "tend to expand homosexual behavior, which will cause increased violations"of the antisodomy law.
Moreover, Coil said, recognition would "tend to cause iatent or potential homosexuals who become members (of the GLO) to become overt homosexuals."
The curators, in a resolution adopted in November, 1973, agreed with Coil. Theysaid, "Homosexuality is a compulsive type of behavior . . . an illness (that) should and can be treated as such," With that, the GLO and four of its members field a civil rights complants in U.S. District Court.
The court acknowledged that "the university, acting here as an instrumentality of the state, has no right to restrict speech or association 'simply because it finds the views to be abhor-rent."
Even so, the court ruled against the that recognition "would likely result in imminent violation of Missouri sodomy laws.
Overturning the decision in June, a divided Court of Appeals said that "the restriction of FirstAmendment rights in the present context may be justified only by a far greater showing of a likehood if imminent lawless action than presented here.
The record shows that "none of the purposes of gay liberation . . . evidence advocacy" of violating state law or of university regulations, the majority said.
Noting that "not all" of the GLO's members are homosexuals, the court found it "difficultto singularly ascribe evil connotations" to the GLO simply because it is a homosexual group. Consoring the group smacks of penalizing persons "for their status rather than their conduct, which is constitutinally impermissible," the majority said.
The dissenter said that university officials "have a responsibility . . . to protect latent or potential homosexuals from becoming overt homosexual students."