Supreme Court to Decide Christian Student Group’s Right to Violate Non-Discrimination Policy

December 7, 2009

The U.S. Supreme Court today granted certiorari in the case of Christian Legal Society v. Martinez , in which a Christian student group challenges a decision of the University of California Hastings Law School to deny official recognition to the group for failure to abide by the school's non-discrimination policy.  That policy requires that membership and leadership positions be open to all students. The Christian Legal Society's Hastings chapter requires members to sign a statement of faith that vows devotion to Jesus Christ, thereby excluding non-Christians from membership.  The Society's Statement of Faith has also been interpreted to exclude gay and lesbian students.  As a result, Hastings denied the Society official recognition and the benefits of recognition, including student activity fee funding.

The Christian Legal Society says it has a right to equal access to school funds and meeting space, even though it discriminates against non-Christian and gay and lesbian students.  The CLS is appealing a ruling by the U.S. Court of Appeals for the 9th Circuit, which held that the law school's action was "viewpoint neutral and reasonable."  The 9th Circuit upheld a lower court ruling that the University's anti-discrimination rules are permissible, regardless of whether they regulate  speech or conduct. The lower court decided that even if the school's policy is a regulation of speech, the school created a limited public forum, so that reasonable, viewpoint-neutral regulations are permissible. The court held that even though the policy particularly affected a group with a certain perspective or belief system, this did not render the policy viewpoint based; the policy applied to all student groups, not just religious groups, and contained no language targeting a specific viewpoint. The court also found that the school was not forcing the Christian Legal Society to admit any student as a member or officer; it was merely placing a condition on receiving university funding and using campus facilities.

The Christian Legal Society points out that the 9th Circuit decision conflicts with a 2006 7th Circuit decision involving the same organization, Christian Legal Society v. Walker . In that case, the appellate court found that the Society's ability to convey its message would be hampered if it was forced to accept members who disagree with it. It found that the state school had no compelling interest in imposing the policy on the organization.

Cases like these have a tendency to divide First Amendment defenders.  Some argue that forcing religious student organizations to open their membership and leadership to all would undermine religious students' right to free association and expression.  But remember that the University is not barring CLS members from associating; it is only denying their association official recognition and funding.  Should a public university be forced to recognize and fund a racist student organization, in violation of its general, viewpoint-neutral policy of non-discrimination, because the organization's racist beliefs are grounded in religion or in a right of free association?  This would seem to be the implication.  Or consider granting exceptions to non-discrimination policies in the interest of accommodating religious student groups.  How is it "equal treatment" to say that student organizations engaging in discrimination cannot receive funding, unless the organization is a religious one?

Comments:

#1 Frank on Monday December 07, 2009 at 1:24pm

Here we come across one of those annoying inconsistencies in the law. The courts have decided that religious student groups do have a right to exist and be recognized and be funded and stuff just like any other student group. For a university not to do so would be discrimination against religion, and that wouldn’t be good. I don’t think the courts can then turn around and say that religious student groups don’t have a right to restrict decision making power within their groups to people of their particular religion. That would contradict the right of religious student groups to exist. How could a group be a christian group of it was led by hindus, jews, or atheists? That wouldn’t make any sense at all. So long as there is neutrality at the level of the universities decision of which groups to recognize and fund and such, I think christian groups have to be allowed to restrict decision-making power within their groups to christians.

I might feel differently if this christian group had prohibited non-christians from participating in the activities of the group in some way, but so far as I know they haven’t. The only place they are discriminating is in voting rights and leadership positions. And that they vote at all is amazingly democratic, most christian student groups don’t. This leads to the obvious question of how universities would enforce a rule prohibiting religious groups from discriminating in the selection of leaders. Since most christian groups just appoint leaders, there is nothing on paper that shows discrimination to occure, yet the people doing the appointing always know the beliefs of the people they are appointing, and would never appoint a non-christian, so there is still discrimination there in practice. How would universities be expected to deal with this?

I also have to point out that there is one other case where universities, both public and private, standardly make exceptions to their non-discrimination clauses: fraternities and sororities. These groups are permited to discriminate on the bases if gender/sex where other student groups are not. If one quite logical exception is ok, why not another?

Finally, I should point out that since atheist student groups are generally small and generally do hold elections, atheist student groups are at a much greater risk of having their decision-making processes interfered with by christians than vice versa, so it is to the advantage of our community for religious and atheistic student groups to be able to restrict decision-making power within their groups to people of their particular worldview.

The only reason this whole issue comes up, as I pointed out at the beginning, is because the courts have decided that religious student groups do have a right to be recognized and funded like any other student group, which implies that they can restrict voting rights and leadership positions within their groups to christians. If the court were to reverse this, it would at least be consistent in it’s position on religious student groups, and I think much more consistent with the general principle of church/state separation. Though if the court did decide that religious student groups don’t have a right to be recognized and funded, that would endanger the recognition and funding of secular student groups too, which would be bad for us.

#2 Alphonsus (Guest) on Monday December 14, 2009 at 10:27am

“Cases like these have a tendency to divide First Amendment defenders.  Some argue that forcing religious student organizations to open their membership and leadership to all would undermine religious students’ right to free association and expression.  But remember that the University is not barring CLS members from associating; it is only denying their association official recognition and funding.”

Wouldn’t this apply to all ideological/political organizations?  Would a school-sponsored Marxist club have to be open to avowed libertarians?  Do the Young Democrats have keep their leadership open to Republicans?

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