Supreme Court Rules That Public Universities May Discriminate Against Christian Student Groups

Back in 1979 I was one of the founding members of the Christian Legal Society at the University of Illinois.  Yesterday, the Supreme Court ruled 5-4 that the Hastings College of Law at the University of California was within its rights to deny recognition to the Christian Legal Society because the group requires that members agree, among other principles, that sexual activity outside of marriage between a man and a woman is sinful, and that members must be Christians.  Hastings contended that these principles violated the open membership policy of the university, in that it would discriminate against prospective members on the grounds of religion and sexual orientation.  Go here to read the decision.

Justice Alito, joined by Chief Justice Roberts, Scalia and Thomas, wrote a thought provoking dissent.

The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” United States v. Schwimmer, 279 U. S. 644, 654–655 (1929) (Holmes, J., dissenting). Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.

The Hastings College of the Law, a state institution, permits student organizations to register with the lawschool and severely burdens speech by unregistered groups. Hastings currently has more than 60 registered groups and, in all its history, has denied registration to exactly one: the Christian Legal Society (CLS).  CLS claims that Hastings refused to register the group because the law school administration disapproves of the group’s viewpoint and thus violated the group’s free speech rights.

Alito nails it.  The whole purpose of this charade was because the powers that be at Hastings despise the Christian Legal Society because it will not sign on to the belief that homosexuality is a positive good, and has the quaint view that Christians should follow traditional Christian morality.   This case graphically demonstrates the active contempt the powers that be in academia have for dissenting views and for the concept of a university as a place where debating voices may be heard.

Alito ends his dissent as follows:  I do not think it is an exaggeration to say that today’sdecision is a serious setback for freedom of expression in this country. Our First Amendment reflects a “profound national commitment to the principle that debate onpublic issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). Even if the United States is the only Nation that shares this commitment to the same extent, I would not change our law to conform to the international norm. I fear that the Court’s decision marks a turn in that direction. Even those who find CLS’s views objectionableshould be concerned about the way the group has been treated—by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration.

23 Responses to Supreme Court Rules That Public Universities May Discriminate Against Christian Student Groups

  • Kagan once said, it’s okay for the government to ban books because the gestapo would be ineffective at enforcing it.

    You have to scratch a liberal just a wee bit to get to the totalitarian essence under the uber-thin vineer of warm and fuzzy bu!!$hit.

    Isn’t there a right, somewhere in the US Constitution, to free association, in addition to the rights to abortion; gay privileges; being fed, clothed and housed by the taxpayer.

    The king denied the Colonists the right to meet. They met anyway – Committees of Correspondence. The king isn’t king of this country. We shall overcome.

  • The pairing of decisions yesterday reminds us that our constitutional rights are basically at the mercy of the whims of Justice Kennedy. It’s truly frightening. Though he seems to have re-discovered some measure of a backbone, on social issues he remains completely inept.

  • Has there ever been a less consequential decision? Gays aren’t going to get elected to leadership positions in CLS.

  • Question: If Hastings is a state institution, thus receiving government funds (from the tax payer), does that not mean it is essentially a politically-funded entity?

    And if so, should we not be surprised that what is politically correct weighs heavey on their policy choices?

  • Has there ever been a less consequential decision? Gays aren’t going to get elected to leadership positions in CLS.

    I think the issue is more that it makes it very difficult for CLS to assemble, hold activities, etc. on campus if theyr’e not recognized as a campus organization.

  • Darwin, CLS can, and probably will, amend its pledge banning gays and the club will continue with business as usual, i.e., without gays.

  • One of the things I find interesting is that the argument that a group should be allowed to keep out people they do not like is being argued by two different groups.

    First, CLS. They say they should be free to have a group which follows the principles they hold dear. Of course, if they were not on a campus, looking for funding and approval to use facilities on campus, I think no one would question such a right.

    However, the second group is the university itself. If CLS has a right to discriminate, why does a university not have that right? To argue in favor of CLS is to argue in favor of the university, as far as I see it. That, I think, is the paradox with this case.

    Can someone show me why CLS can discriminate and not the university? I am in favor of free associations, and I do think a university should encourage such free associations (the university’s policy is wrong), but I also do wonder how a university is not accorded such a right?

  • BTW, I would even agree the university is going against its claims of tolerance to discriminate in this way, however, the question is not whether or not the university is acting bad, but whether or not it is within their legal rights.

  • Eh, you might be right, RR. I guess as an old Boy Scout I figured the organization would stick to its guns and suffer the consequences. :-)

  • I am not a huge Kennedy Basher but bioth the right and left are right at times he gets carried away with his verbiage. I am amazed that a Catholic Justice basically said that Creed like matters are like Loyalty Oaths

  • Has there ever been a less consequential decision?

    I disagree. Traditional morality is only tenuously tolerated. This further institutionalizes its banishment from the public sphere. It has very little to do with whether CLS admits gays or not; look beyond the legal ramifications to see the cultural narrative. A Christian group, along among others, is singled out for chastisement. This has everything to do with what metaphysical premises are acceptable in polite company.

    “Untenured” at WWWtW said it best (with respect to another story):

    Increasingly, we are seeing secularists posture as though their pet metaphysical and moral committments are some kind of reasonable “default” that everybody would naturally gravitate towards if only it weren’t for the malign influence of religious “indoctrination.” There is a very real movement to portray traditional morality as some kind of “pathology” that is okay to exercise coercion against. Witness, for example, the attempt to make moral objections against homosexuality appear as if they are *no different* from objections to interracial marriage. Even people with philosophical training who ought to know better, like to pretend that this line of reasoning is cogent out of some kind of weird “political solidarity” with “sexual minorities.” They don’t give a darn about intellectual honesty- they want to deny traditional moral beliefs a toehold in the space of reasons, and they will do so by any means necessary. I’ll bet dollars to donuts that we are soon going to see people arguing that there is *no difference* between a homeschooler being taught traditional morality and an underage bride at a Mormon polygamy compounds. Then some arguments, with the pretense of hand-wringing, about how reasonable people have no choice but to coerce these backwards homeschoolers out of existence. For the sake of the children, of course.

  • ” I would even agree the university is going against its claims of tolerance to discriminate in this way, however, the question is not whether or not the university is acting bad, but whether or not it is within their legal rights”

    Henry I think it is clear that the University cannot , as a general matter with exceptions of course) discriminate against viewpoint discrimination.

    Now I realize this is a complicated case and in hindsight I am willing to bet the Justices wised they never took up the case because they discovered it was such a procedural mess and the factual record was clouded.

    That being said while many are saying the Opinion is narrow ( focusing just on this odd unique all comers policy) I am not so sure if it that narrow at all. The comments by some of the Justices on how they got there are perhaps the most disturbing and I am hoping like Justice ALito this si an aberation

  • “Eh, you might be right, RR. I guess as an old Boy Scout I figured the organization would stick to its guns and suffer the consequences.”

    Well the case is not over. They still have a chance to prove that this “all comers” policy was a pretext for unlawful discrimination

  • “However, the second group is the university itself. If CLS has a right to discriminate, why does a university not have that right?”

    I would say that a private university should have that right, but a public university does not. Here we have a governmental institution, Hastings Law School, imposing membership criteria on a private entity, the Christian Legal Society. All Catholics, members of an organization that is looked upon with hatred by many of the elites in our society, should look with alarm at this decision. “The Catholics want to prevent women from being priests? Fine, we will pass a law dictating that no non-profit may have tax exemption unless they sign on to this non-discrimination policy.”

  • I would say that a private university should have that right, but a public university does not. Here we have a governmental institution, Hastings Law School, imposing membership criteria on a private entity, the Christian Legal Society.

    Actually, the problem is the university is saying that, as a public institution, it cannot accept a private society as a student body if it is going with such discrimination. In other words, their argument is if they support the society, they are supporting such discrimination as a public institution. They are not saying what CSL can or cannot do, just what they can or cannot do if they want to be a student group at Hastings. The court, of course, said something unusual, in that it said a university can engage in such rules, but does not have to. It’s really a messed up case, because on every level, there seems to be a kind of self-contradiction involved.

  • “Actually, the problem is the university is saying that, as a public institution, it cannot accept a private society as a student body if it is going with such discrimination.”

    That is a way of saying that the public entity will discriminate against a group based upon its membership policies, unless the private group has membership policies acceptable to the public entity. The implications for Newman Centers on public campuses are clear, along with any groups that are in official disfavor. The true absurdity of this policy of course is that almost all private groups, by definition, discriminate. A staunch Republican like me would not be wanted among College Democrats. If I join a Chess group on campus, I will be expected not to insist upon the group playing checkers. Why this absurd policy of no discrimination in admissions by private groups of course is being implemented on campuses is as a hammer to beat groups that do not sign on to the gay rights agenda. This is governmental action engaging in viewpoint discrimination in order to banish from campuses those groups engaging in heretical thoughts.

  • It’s really a messed up case, because on every level, there seems to be a kind of self-contradiction involved.

    I don’t think I agree or understand what you said before, but I agree with this sentence. Whenever one tries to enforce what SCOTUS said in this opinion is a “viewpoint-neutral” outlook, you run into problems once you have conflicting viewpoints. Instead of ditching the whole flawed approach, the majority here tried to argue “this form of discrimination isn’t really discrimination” by pointing out that CLS can exist off campus (which as a college student I can tell you is a waste of time; w/o events on campus and the funding to throw even small lunches, recruitment is difficult to impossible).

  • Says Kennedy, via the Washington Post: “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”

    Memo to Kennedy – as an American citizen, I have a right not to engage in dialogue. As an American citizen, I have the right to freely associate with whomever I choose. And the students on that campus, a public campus, have those rights as well.

    The right to associate and exclude on the basis of values may be the only thing that prevents radically different groups from going to war with each other. American governments and courts that think they can force everyone to “dialogue” are going to be in for a rude awakening. This isn’t Europe.

  • “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”

    Kennedy is always good for a bone-headed quote. This one is hilarious for two reasons.

    First, the clear intent of the Hastings Policy is to quash a point of view that the administration of the law school finds distateful by denying the Christian Legal Society recognition.

    Second, if there is any group more cloistered from opposing views than the federal judiciary, with lifetime appointments, I am unaware of it.

  • Henry Karlson wrote: “If CLS has a right to discriminate, why does a university not have that right? To argue in favor of CLS is to argue in favor of the university, as far as I see it. That, I think, is the paradox with this case.”

    This is exactly what my husband said when we discussed it. He’s pretty libertarian in outlook. His argument is that the university can make whatever rules it wants to for official clubs, that the students are still free to do what they want, but if they take the university’s money and free space, then they have to abide by the rules. He says it’s better for them to do so and believe what they want to.

    Things are coming to a head, and I’m afraid that anyone looking for tolerance anywhere is likely to be disappointed.

  • “His argument is that the university can make whatever rules it wants to for official clubs, that the students are still free to do what they want, but if they take the university’s money and free space, then they have to abide by the rules.”

    It should not be the role of any government entity to set the membership policies for private groups. It is of course especially ironic that this attempt to stifle a viewpoint is taking place at a university, a supposed citadel of intellectual liberty. Of course most universities in this country, as demonstrated by repeated attempts to impose speech codes on students, are as enamored of freedom of speech as they are of cutting their budgets to reduce the exorbitant tuition that they charge.

  • The libertarian outlook sees this case as yet another illustration of the need for separation of Schooling and State.

  • It’s really a messed up case, because on every level, there seems to be a kind of self-contradiction involved.-Henry Karlson

    Seems? (Hint: category error.)

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