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

Tuesday, June 29, AD 2010

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.

Facebooktwittergoogle_plusredditpinterestlinkedinmail
Continue reading...

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.)

Christian Legal Society v. Martinez

Monday, April 19, AD 2010

As I’m a week and a half from law school exams, I don’t have the time to do this justice but there’s an important case involving a group I’m involved in at law school that was argued in front of the Supreme Court today. In sum, the school banned the CLS (Christian Legal Society) because it wanted the Christian Legal Society members to be…well, Christians. The school defends itself on the idea that allowing any discrimination is intolerable and would open a slippery slope to racist groups (no, seriously-read the article and the questions of Sotomayor & Stevens. Glad that Obama appointment is doing well for Christians).

So pray for a just result that will protect the rights of Christians to assemble.

Facebooktwittergoogle_plusredditpinterestlinkedinmail
Continue reading...

12 Responses to Christian Legal Society v. Martinez

  • Well, if the article you linked was right, no, it is not about whether or not they are to be Christian. You could allow gays to join and still be Christian. There are Christian gays (as TAC should know). If the point is no gay can join, I would argue such group was antithetical to Christianity.

  • Of course, I am sure you will say it is not about allowing gays to join — but yet, I know many “Christians” who say to celibate Christian gays they are “advocating a lifestyle” by pointing out their orientation.

  • While I’m certainly sympathetic with the CLS (and was an active member when I attended law school several decades ago), I’m not sure I agree with its legal theory in this case. What I want to know is whether or how its freedom to associate is actually impaired by failing to secure “official” status. Does a failure to secure school financing and benefits actually mean it is “banned”? If so, is its practical ability to meet encumbered?
    I can appreciate the state’s interest in being unwilling to accord its impramatur upon groups that discriminate based on religion, race, etc., even if the application of such a limitiation to a bona fide religious group does seem ridiculous, but laws/rules are always imperfectly drafted, either underinclusive, overinclusive, or both. This one appears overinclusive (and is probably both), but my reaction is that this imperfection does not render it constitutionally infirm without a showing of First Amendment harm. This stands in contrast to laws granting churches an exception from general religious discrimination prohibitions, which quite possibly are constitutionally required precisely because a law that would prevent a church from favoring its own adherents for various church positions would presumably encumber the church from freely exercising its religion. I’m just not sure that disqualifying the CLS from receiving school financing and benefits is quite the same thing.

    All that said, I certainly could be wrong and fully expect to be flamed with enthusiasm.

  • That was my first question as well, Mike.

  • Well I helped found the Christian Legal Society at the University of Illinois Law School back at the dawn of time when I was a law student. Without official recognition we wouldn’t have been able to hold our meetings in classrooms, put up notices of our meetings on law school bulletin boards or receive funding from the Student Organization Resource Fund. I think the lack of these would have constituted a penalty to the group. I think the best tactic however is to argue that the Christian Legal Society is being singled out for enforcement of these regulations.

    Here is a transcript of the oral argument:
    http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1371.pdf

  • One analysis of this case claimed that if the court found against the CLS, then by the same reasoning a state-supported school could not give official sanction to a gay-rights group that excluded people opposed to the gay-rights agenda. So if the CLS loses, maybe its members could sign up en masse for the gay-rights club, bringing their friends along with them. Discussion on college campuses would probably not become more civil, but it would be more varied and interesting.

  • The same thing is true today as it was for Don (however many years ago that was. I won’t inquire 😉 ) Other groups would have a significantly easier time having groups then would Christians. I think this is where Alito’s questioning in the argument was going-groups like for gay advocacy are not going to have a problem while Christian or other religious groups will not be permitted, allowing those other groups to have state-sponsored advantages over the Christian groups. That’s where I think that’s where the constitutional question comes in.

    I would love to make that argument stronger, but unfortunately I won’t be tested on CLS v. Martinez in the next two weeks.

    Henry:

    The article makes it perfectly clear that CLS was banning those who are practicing homosexuals, not homosexuals trying to live out a Christian life. There is no evidence that CLS discriminated against Christians with a homosexual orientation in this case or in general. While I’m sure some Christians have mistreated our brothers, I see no basis why you should accuse CLS of this behavior unless you have some evidence other than the fact that CLS tends to contain conservatives and therefore fall under your presumption of evil?

    PM:

    That’s not a bad idea.

  • “One analysis of this case claimed that if the court found against the CLS, then by the same reasoning a state-supported school could not give official sanction to a gay-rights group that excluded people opposed to the gay-rights agenda. So if the CLS loses, maybe its members could sign up en masse for the gay-rights club, bringing their friends along with them. Discussion on college campuses would probably not become more civil, but it would be more varied and interesting.”

    Having read the legal briefings for this case, this is more or less what’s at stake. Pure and simple the administration of Hastings College (the school where this took place) is saying that this will indeed be the case – the only problem is, it seems to only be enforced in the case of the Christian group. We’ll see how this unfolds…

  • I know many “Christians” who say to celibate Christian gays they are “advocating a lifestyle” by pointing out their orientation.

    Why are they pointing it out, Henry?

  • “It is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership,” Justice Antonin Scalia said.

    Funny that he mentions that. When I was in law school, the president of the Federalist Society was a Democrat. The president of CLS was suspected by everyone to be a closeted homosexual.

    Interesting case but I don’t know if it’ll make any practical difference. I didn’t join CLS because it was too Protestant for my comfort. I don’t see practicing homosexuals joining, much less get voted into leadership positions.

  • Michael Denton:

    See Art Deco.

  • HK:

    I have a feeling that the two of you are disagreeing on what is meant by “pointing” with Deco taking to pointing as something along the lines of “I’m gay and you need to accommodate that” (think of the “coming out” promotions which obviously connote acceptance of the homosexual lifestyle) as opposed to acknowledging a struggle with sin which you’re thinking of. I’ll let the two of you discuss that if you wish.

    Of course, this is a digression and has nothing to do with the idea that Colleges must force Christian groups to accept practicing homosexuals (i.e. non-celibate) in order to get official status.