dissenting:
Requiring the Georgetown University to recognize/endorse two gay rights groups is tantamount to ordering a private actor publicly to embrace the ideology of another. I cannot concur in this bizarre result; I would hold that the Human Rights Act does not compel recognition/endorsement. I would sever the connection between recognition and its incidental benefits, and would find that by withholding recognition the University has not violated the Act.
On this issue my colleagues say only that “Georgetown has not challenged on appeal the [motions] court’s ruling that the University’s actions [in withholding recognition to the plaintiffs] unlawfully discriminated on the basis of sexual orientation.” Ante at 568. It is beyond cavil, however, that when a constitutional challenge to a statute is raised, this court must first determine whether a “construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). The alternative construction is so evident here as to require little discussion. As the majority circuitously concedes, a civil rights act does not (and could not) impose mind control. Ante at 581.1
*583The motions court found, and the majority today agrees, that the Human Rights Act does not permit Georgetown to communicate to students, faculty, alumni and the outside world — via a withholding of recognition — its disapproval, as a private, Catholic entity, of a group whose practices and goals conflict with Catholic belief. Perhaps recognizing the patent invasion of the First Amendment that its holding implies, the majority finds that Georgetown may evade the Human Rights Act’s requirements by disclaiming that endorsement, or by “telling itself” that it does not actually tolerate the plaintiff student groups. In this regard, the majority accepts the trial court’s finding that “university recognition” is the equivalent of university “endorsement,” but it independently decides that endorsement implies no approval. The plain meaning of “endorsement,” however, according to Webster’s, is a “public and definite expression of approval.” I will not belabor the point, for I believe that for constitutional purposes it is irrelevant whether recognition implies endorsement/ approval or whether it indicates only neutrality, i.e., that the doctrine espoused by the recognized group is not in direct conflict with Catholic principles. In either event, I would construe the Act to exclude the majority’s result: that a private university affiliated with the Catholic church may be compelled to endorse, or even to be religiously neutral towards, a student group whose fundamental purpose and organizing principle conflict with Catholic doctrine. While it may require equal access by university groups to university fa-eilities,2 the Act should not be construed to mandate what is in effect coerced speech. Although the university relies on the free exercise clause of the First Amendment, rather than the free speech clause, restrictions on religious speech of the type presented here have often been analyzed, and struck down, on free exercise grounds. Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953); Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944); Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (1943); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
The free exercise clause traditionally has embraced two concepts: freedom to believe and freedom to act. The first “is absolute.” Cantwell v. Connecticut, 310 U.S. at 303, 60 S.Ct. at 903. In its initial opinion interpreting the reach of the clause, the Supreme Court held that the function of the prohibition is to deprive government “of all legislative power over mere opinion.” Reynolds v. United States, 98 U.S. (8 OTTO) 145, 164, 25 L.Ed. 244 (1878). The principles embraced within this “absolute” core of the clause, freedom of conscience, thought, and religious practice, are “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).3 As such, they cannot be subject to a “balancing” test, like the one set up by the majority, where they may be “trumped” by a state interest deemed to be more “compelling.”4
*584“Official compulsion to affirm what is contrary to one’s religious belief is the antithesis of freedom of worship.” West Virginia Board of Education v. Barnette, 319 U.S. 624, 646, 63 S.Ct. 1178, 1189, 87 L.Ed. 1628 (1943) (Murphy, J.; concurring). Under settled principles, therefore, the District of Columbia could not compel the university to state that homosexuality is as legitimate a “lifestyle” or human activity as is political organizing, or advocating or promoting the rights of women. As applied to this case, the university cannot be compelled to equate gay rights groups formed to promote homosexuality, with student groups like the Young Americans for Freedom, the Democratic Sociálist Organizing Committee, or the Women’s Rights Collective. The majority’s conclusion that the university’s recognition of these diverse groups somehow undercuts Georgetown’s right to refuse to recognize the plaintiffs is in effect an impermissible intrusion into, and weighing of, Catholic doctrine.5
The free exercise clause absolutely bars interference with the dissemination of religious ideas. Gillette v. United States, 401 U.S. 437, 462, 91 S.Ct. 828, 842, 28 L.Ed.2d 168 (1971). Georgetown chooses to convey its disapproval of homosexuality by refusing to grant “recognition” to student groups who advocate it. There is no doubt that this symbolic speech is a “form of utterance” equally protected by the free exercise clause, West Virginia Board of Education v. Barnette, 319 U.S. at 632, 63 S.Ct. at 1182. As the Court held in Barnette, “[sjymbolism is a primitive but effective way of communicating ideas”; it is a “short cut from mind to mind.” Id.
In Barnette the Court struck down a state statute that “require[d] the individual to communicate by word and sign [through a flag salute] his acceptance of the political ideas [the salute] bespeaks.” The Court held that the state could not “require[] affirmation of a belief and an attitude of mind”; this type of coercion was “well known to the framers of the Bill of Rights” and was prohibited by the free exercise clause. Id. at 633, 63 S.Ct. at 1183. The majority noted that an utterance distasteful on religious grounds that is compelled by the state would require even greater justification than the state’s suppression of speech. Id. at 633-34, 63 S.Ct. at 1182-83. Significantly, the majority in Barnette rejected Justice Frankfurter’s conclusion, similar to the majority’s rationalization here, that no free exercise problem is presented as long as the plaintiffs have an *585opportunity to disclaim the meaning of the acts or utterances required by the state. See id. at 664, 63 S.Ct. at 1197 (Frankfurter, J., dissenting).
Barnette’s analysis was reaffirmed by the Court in Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), where a state statute compelling the display of a state motto on license plates repugnant to the plaintiffs’ religious beliefs was held invalid as a compulsion of speech. The court again rejected the view of the dissent that a plaintiff may avoid religious interference by disclaiming the message compelled by the state. See id. at 722, 97 S.Ct. at 1439 (Rehnquist, J., dissenting). The majority here rejects Wooley, for reasons that are not readily apparent. The dissenting Justice in Wooley would have upheld the statute because it did not force the plaintiffs “to communicate ideas with nonverbal actions reasonably likened to ‘speech,’ ” id. at 720, 97 S.Ct. at 1438, and in view of the uniform state license plate requirement it was unlikely that anyone would impute the message found on the plates to the plaintiffs. The statute at issue here, however, under the majority’s interpretation, would compel the university to pay lip service to an idea that as a Catholic entity it is required to disavow: that the goals and behavior of gay rights groups are as valid as those of all other student groups. This compelled speech, together with the majority’s holding that the plaintiff groups must be permitted to use the Georgetown name, would have the effect of imputing the approval of homosexual behavior to the university.
The majority relies on PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), but the question presented in PruneYard was whether the owners of a shopping center set up as a public forum could refuse to allow the center to be used as a forum for the speech of others. There is no agreement, however, as to whether even a public university may be characterized as a public forum equivalent to a shopping center, see Widmar v. Vincent, 454 U.S. 263, 277-81, 102 S.Ct. 269, 278-80, 70 L.Ed.2d 440 (1981) (Stevens, J., concurring). In any event, the university does not ask that it be permitted to deny the plaintiff student groups a forum. It simply declines to allow the use of the Georgetown name by these groups, and refuses to indicate in other ways that it approves of, or even tolerates, their message. Had the plaintiffs argued in PruneYard that along with their first amendment right to distribute literature in the PruneYard shopping center, they were entitled to use the Prune-Yard name, I have no doubt that their argument would have been rejected out of hand.6
Finally, the majority relies on Bob Jones v. United States, 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983) in support of the proposition that the state interest in the abolition of discrimination against homosexual groups is “compelling” and outweighs Georgetown’s right to religious expression under the free exercise clause. Bob Jones is irrelevant to this case, for two reasons. First, the question there was whether the government could withhold a benefit — a tax preference — to a school that engaged in discrimination. A long line of cases holds that “those who take advantage of [the government’s] opportunities may not on ground of conscience refuse compliance with such conditions” that government may choose to impose on the grant of those opportunities or benefits. Barnette, supra, 319 U.S. at 632, 63 S.Ct. *586at 1182. These types of eases are distinguished from outright government burdens on free exercise like the one imposed by the majority here, id. See also In re Summers, 325 U.S. 561, 572-73, 65 S.Ct. 1307, 1313-14, 89 L.Ed. 1795 (1945); Hamilton v. Regents, 293 U.S. 245, 261-65, 55 S.Ct. 197, 203-05, 79 L.Ed. 343 (1934); United States v. MacIntosh, 283 U.S. 605, 51 S.Ct. 570, 75 L.Ed. 1302 (1931).7 The majority’s conclusion that Bob Jones sets out a framework for the analysis of all government action that infringes upon free exercise rights, ante at 575, is an extrapolation that is entirely too broad.
Second, the “compelling government interest” in Bob Jones was constitutionally based and its outlines were clear. The Court noted that “[o]ver the past quarter of a century, every pronouncement of this Court and myriad Acts of Congress and Executive Orders attest a firm national policy to prohibit racial segregation and discrimination” in education. Id., 461 U.S. at 593, 103 S.Ct. at 2029. Emphasized in the opinion is the fact that the interest in question is embraced within the concept of due process of law under the Constitution. Id. In contrast, the District’s asserted interest in preventing discrimination on the basis of sexual preference has no similar historical or constitutional underpinnings.8 The majority’s equation of discrimination on the basis of race and discrimination on the basis of sexual preference, in light of the constitutional history that forms the basis for the decision in Bob Jones, see ante at 575, is far-fetched.9
In summary, I would reject the motion court’s finding that the withholding of university recognition to the plaintiffs violates the Human Rights Act. I would interpret the Act to exclude the requirement of neutrality of thought that is now forced upon the university by a judicial construction that is without precedent. I would then proceed to a balancing analysis to determine whether Georgetown’s interest in denying the privileges incidental to recogni*587tion10 — which seem, in their entirety, to be a mailbox, mailing privileges and easier access to university meeting-places — 11 is outweighed by the District’s interest in the enforcement of its statute. The route which the majority takes today — the holding that recognition may not be withheld under the Act, along with the suggestion to Georgetown that it simply “disclaim” any connection between it and the plaintiffs— seems to me to be an invitation to additional litigation. I accordingly dissent.
.See infra at p. 586.
. As Judge Bacon pointed out in her opinion, "the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand_” Memorandum of Decision and Judgment at 2 (citing Braunfeld v. Brown, 366 U.S. 599, 616, 81 S.Ct. 1144, 1152, 6 L.Ed.2d 563 (1961) (Brennan, J., concurring and dissenting (citation omitted)).
. The “balancing test” has relevance only to governmental restrictions on conduct. Cantwell v. Connecticut, supra, 310 U.S. at 303-04, 60 S.Ct. at 903. The majority’s statement that a "sincerely held religious belief, central to the *584faith, does not automatically preclude state action that infringes on that conduct,” ante note 15, is simply wrong, if the majority means to imply that the government may outlaw certain disfavored religious speech or compel an individual to adhere to principles that its religious tenets require it to disavow.
. As the Supreme Court has repeatedly stated, “[i]t is not within ‘the judicial function and judicial competence’ [] to determine whether [an individual asserting free exercise rights] or the Government has the proper interpretation of the [particular] faith.” This is so because “ '[c]ourts are not arbiters of scriptural interpretation.' " United States v. Lee, 455 U.S. 252, 257, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982) (citing Thomas v. Review Board, 450 U.S. 707, 716, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981)). As the Court said in Lee, "[t]his is not an instance in which the asserted claim is 'so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause,’ ” 455 U.S. at 257 n.6, 102 S.Ct. at 1055 n.6 (citation omitted). The majority cites only to Professor Tribe's treatise on constitutional law for the proposition that "the Supreme Court has inquired into whether the religious beliefs are sincerely held” in evaluating free exercise claims. Ante note 15. Professor Tribe states, however, that "any such inquiry [into sincerity] can be extraordinarily dangerous” and notes that "the very rights ostensibly protected by the free exercise clause might well be jeopardized by any but the most minimal inquiry into sincerity.” Such a “minimal inquiry" would disallow a free exercise claim when "extrinsic evidence exists to establish that religion is being used as a completely fraudulent cloak.” L. Tribe, American Constitutional Law § 14-11, at 861 (1978). Since there is of course no evidence that Georgetown’s belief that Catholic doctrine requires it to disavow homosexuality is in any way fraudulent, there would be no occasion here to “inquire into the sincerity” of this belief even if the majority could "doubt [its] sincerity," ante note 15.
. The majority contends that the University’s claim "is substantially undermined by [its] willingness to tolerate, as consistent with Roman Catholic teachings, student body endorsement of gay rights groups with attendant use of the University’s facilities and name.” Ante at 580. There is nothing in the record to indicate, however, that the Georgetown student government is given permission by the University to approve or authorize the use of the Georgetown name by student groups. Moreover, even if student body endorsement could be construed as such an authorization, the University would in no sense be estopped by student government action from requesting that a particular group cease its use of the Georgetown name.
.The majority states that the balancing test is "an objective one; it is not linked exclusively to the subjective position of the party asserting, or challenging, a religious viewpoint. If it were, Bob Jones University would have prevailed....” Ante at 581. On the contrary, the Court in Bob Jones, consistent with the analysis in every other free exercise case, did not question the authenticity of the university’s religious beliefs and its “right to interpret and apply its religious tenets as it sees fit,” ante at 580. See supra note 5. The Court noted that the "sponsors of the University genuinely believe that the Bible forbids interracial dating and marriage.” 461 U.S. at 580, 103 S.Ct. at 2022. It did not presume, as does the majority here, to engage in an independent assessment of the university’s beliefs— weighing them “objectively" against the university’s actions in other, entirely different, contexts — to determine if they are sincerely held. As noted supra, Bob Jones held only that fundamental public policy requires the denial to a university that discriminates on the basis of race of a tax benefit normally conveyed only to institutions "thought beneficial to the social order of the country as a whole.” 461 U.S. at 588, 103 S.Ct. at 2026. The decision in Bob Jones gave that university a choice; relinquishing its tax benefit or foregoing the effects of its sincerely held religious belief, its prohibition on interracial dating. In contrast, today’s decision eliminates choice, while simultaneously restricting religious speech: Georgetown is foreclosed from conveying its disapproval of the gay student organization plaintiffs.
. The majority states that in this case, “as in Bob Jones, ... conflicting individual rights are alleged — here, freedom from unlawful discrimination and free exercise of religion.” Ante at 579. The obvious distinction between these two "individual rights” — the constitutional basis for one and the purely statutory basis for the other — is nowhere recognized and indeed is obfuscated by the majority.
. Few social or political issues in our history have been more vigorously debated and more extensively ventilated than the issue of racial discrimination, particularly in education. Given the stress and anguish of the history of efforts to escape from the shackles of the "separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 [16 S.Ct. 1138, 41 L.Ed. 256] (1896), it cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising “beneficial and stabilizing influences in community life,” Walz v. Tax Comm’n, 397 U.S. 664, 673 [90 S.Ct. 1409, 1413, 25 L.Ed.2d 697] (1970), or should be encouraged by having all taxpayers share in their support by way of special tax status.
Bob Jones, 461 U.S. at 595, 103 S.Ct. at 2030.
. Whether the university would be willing to grant these incidental privileges absent a requirement that it recognize the student groups is not clear from the record.
. The question of funding has not been raised at this stage and I therefore do not address it.