The question resolved by the Supreme Court today in Christian Legal Society v. Martinez is a variant of one we've seen for decades: religiously compelled practice versus some law that's not expressly aimed at religion -- who wins? You've seen it, for example, in the "my religion says we need to take this drug" versus "no, that drug is illegal" arena as well as "we're Amish, and we don't want to send our kids to school" versus compulsory attendance.
And today it's My Religion Doesn't Like The Gays versus Our Policies Say You Can't Discriminate Against Gays, in the context of the a student religious group at the Hastings College of Law -- a part of the California public educational system.
See, the Christian Legal Society's by-laws (imposed by their national sponsor) required the signing of a "statement of faith," which in 2004 was expanded to include as follows:
In view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual
from CLS membership.... [including] all acts of sexual conduct outside of God’s design for marriage between one man and one woman, which acts include fornication, adultery, and homosexual conduct.
But as far as CLS was concerned, "All noncommercial expressive associations, regardless of their beliefs, have a constitutionally protected right to control the content of their speech by excluding those who do not share their essential purposes and beliefs from voting and leadership roles."
The law school didn't like it, and denied CLS official recognition as a Registered Student Organization (RSO) -- no funding, can't use the school's name and logo, no access to an e-mail address with links to a Law School network, no school-provided travel funds, no office space, etc.... but they could use the school's bulletin boards and to other means of contacting students, and could apply to use meeting rooms. CLS sued.
[The case for CLS was argued by Michael McConnell, a former judge on the United States Court of Appeals for the Tenth Circuit and for decades has been the leading pro-religious expression advocate/scholar in America. I mention this here because full disclosure requires me to mention that he gave me a lousy grade in Constitutional Law I back in 1995.]
In a 5-4 opinion authored by Justice Ginsburg, the Court upheld Hastings' policy of requiring student groups to take on "all comers" as a prerequisite to official school recognition as a reasonable and viewpoint neutral restriction:
[W]e do not write on a blank slate; we have three times before considered clashes between public universities and student groups seeking official recognition or its attendant benefits. First, in Healy , a state college denied school affiliation to a student group that wished to form a local chapter of Students for a Democratic Society (SDS). Characterizing SDS’s mission as violent and disruptive, and finding the organization’s philosophy repugnant, the college completely banned the SDS chapter from campus; in its effort to sever all channels of communication between students and the group, university officials went so far as to disband a meeting of SDS members in a campus coffee shop. The college, we noted, could require “that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law,” including “reasonable standards respecting conduct.” But a public educational institution exceeds constitutional bounds, we held, when it “restrict[s] speech or association simply because it finds the views expressed by [a] group to be abhorrent.”
... Most recently and comprehensively, in Rosenberger, we reiterated that a university generally may not withhold benefits from student groups because of their religious outlook. The officially recognized student group in Rosenberger was denied student-activity-fee funding to distribute a newspaper because the publication discussed issues from a Christian perspective. By “select[ing] for disfavored treatment those student journalistic efforts with religious editorial viewpoints,” we held, the university had engaged in “viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum’s limitations.”
In all three cases, we ruled that student groups had been unconstitutionally singled out because of their points of view. “Once it has opened a limited [public] forum,” we emphasized, “the State must respect the lawful boundaries it has itself set.” IThe constitutional constraints on the boundaries the State may set bear repetition here: “The State may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum, ... nor may it discriminate against speech on the basis of ... viewpoint.”
And under that standard, the Hastings policy passes muster:
Just as “Hastings does not allow its professors to host classes open only to those students with a certain status or belief,” so the Law School may decide, reasonably in our view, “that the ... educational experience is best promoted when all participants in the forum must provide equal access to all students.” RSOs, we count it significant, are eligible for financial assistance drawn from mandatory student-activity fees; the all-comers policy ensures that no Hastings student is forced to fund a group that would reject her as a member.
Second, the all-comers requirement helps Hastings police the written terms of its Nondiscrimination Policy without inquiring into an RSO’s motivation for membership restrictions. To bring the RSO program within CLS’s view of the Constitution’s limits, CLS proposes that Hastings permit exclusion because of belief but forbid discrimination due to status. But that proposal would impose on Hastings a daunting labor. How should the Law School go about determining whether a student organization cloaked prohibited status exclusion in belief-based garb? If a hypothetical Male-Superiority Club barred a female student from running for its presidency, for example, how could the Law School tell whether the group rejected her bid because of her sex or because, by seeking to lead the club, she manifested a lack of belief in its fundamental philosophy?
And technology means official recognition doesn't matter as much anymore:
Hastings offered CLS access to school facilities to conduct meetings and the use of chalkboards and generally available bulletin boards to advertise events. Although CLS could not take advantage of RSO-specific methods of communication, the advent of electronic media and social-networking sites reduces the importance of those channels. See App. 114–115 (CLS maintained a Yahoo! message group to disseminate information to students.); Christian Legal Society v. Walker, 453 F. 3d 853, 874 (CA7 2006) (Wood, J., dissenting) (“Most universities and colleges, and most college-aged students, communicate through email, websites, and hosts like MySpace ... . If CLS had its own website, any student at the school with access to Google—that is, all of them—could easily have found it.”).
[As to this point, the dissenters argue: "The majority’s emphasis on CLS’s ability to endure ... discrimination—by using private facilities and means of communication—is quite amazing. This Court does not customarily brush aside a claim of unlawful discrimination with the observation that the effects of the discrimination were really not so bad. We have never before taken the view that a little viewpoint discrimination is acceptable."]
Nor is the majority worried about monkey business:
CLS also assails the reasonableness of the all-comers policy in light of the RSO forum’s function by forecasting that the policy will facilitate hostile takeovers; if organizations must open their arms to all, CLS contends, saboteurs will infiltrate groups to subvert their mission and message. This supposition strikes us as more hypothetical than real. CLS points to no history or prospect of RSO-hijackings at Hastings. Students tend to self-sort and presumably will not endeavor en masse to join—let alone seek leadership positions in—groups pursuing missions wholly at odds with their personal beliefs. And if a rogue student intent on sabotaging an organization’s objectives nevertheless attempted a takeover, the members of that group would not likely elect her as an officer.
Justice Stevens, concurring:
The campus is, in fact, a world apart from the public square in numerous respects, and religious organizations, as well as all other organizations, must abide by certain norms of conduct when they enter an academic community. Public universities serve a distinctive role in a modern democratic society. Like all specialized government entities, they must make countless decisions about how to allocate resources in pursuit of their role. Some of those decisions will be controversial; many will have differential effects across populations; virtually all will entail value judgments of some kind. As a general matter, courts should respect universities’ judgments and let them manage their own affairs.
...In this case, petitioner excludes students who will not sign its Statement of Faith or who engage in “unrepentant homosexual conduct,” App. 226. The expressive association argument it presses, however, is hardly limited to these facts. Other groups may exclude or mistreat Jews, blacks, and women—or those who do not share their contempt for Jews, blacks, and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.
Similarly, Justice Kennedy:
Law students come from many backgrounds and have but three years to meet each other and develop their skills. They do so by participating in a community that teaches them how to create arguments in a convincing, rational, and respectful manner and to express doubt and disagreement in a professional way. A law school furthers these objectives by allowing broad diversity in registered student organizations. But these objectives may be better achieved if students can act cooperatively to learn from and teach each other through interactions in social and intellectual contexts. A vibrant dialogue is not possible if students wall themselves off from opposing points of view.
The school’s objectives thus might not be well served if, as a condition to membership or participation in a group, students were required to avow particular personal beliefs or to disclose private, off-campus behavior. Students whose views are in the minority at the school would likely fare worse in that regime. Indeed, were those sorts of requirements to become prevalent, it might undermine the principle that in a university community—and in a law school community specifically—speech is deemed persuasive based on its substance, not the identity of the speaker. The era of loyalty oaths is behind us. A school quite properly may conclude that allowing an oath or belief-affirming requirement, or an outside conduct requirement, could be divisive for student relations and inconsistent with the basic concept that a view’s validity should be tested through free and open discussion. The school’s policy therefore represents a permissible effort to preserve the value of its forum.
Justice Alito, on behalf of the four dissenting justices, spends much time disputing whether Hastings had an "all comers" policy in the first place -- even though CLS had stipulated to this fact before coming to the Court -- leading Justice Ginsburg to call the dissenters "indulg[ing] in make-believe."
This, then, is the dissent's core argument:
The First Amendment protects the right of “‘expressive association’”—that is, “the right to associate for the purpose of speaking.” And the Court has recognized that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”
... [The Hastings] policy singled out one category of expressive associations for disfavored treatment: groups formed to express a religious message. Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming. An animal rights group was not obligated to accept students who supported the use of animals to test cosmetics. But CLS was required to admit avowed atheists. This was patent viewpoint discrimination.
The Hastings Nondiscrimination Policy, as interpreted by the law school, also discriminated on the basis of viewpoint regarding sexual morality. CLS has a particular viewpoint on this subject, namely, that sexual conduct outside marriage between a man and a woman is wrongful. Hastings would not allow CLS toe xpress this viewpoint by limiting membership to personsw illing to express a sincere agreement with CLS’s views. By contrast, nothing in the Nondiscrimination Policy prohibited a group from expressing a contrary viewpoint by limiting membership to persons willing to endorse that group’s beliefs. A Free Love Club could require members to affirm that they reject the traditional view of sexual morality to which CLS adheres. It is hard to see how this can be viewed as anything other than viewpoint discrimination....
[R]eligious groups like CLS obviously engage in expressive association, and no legitimate state interest could override the powerful effect that an accept-all-comers law would have on the ability of religious groups to express their views. The State of California surely could not demand that all Christian groups admit members who believe that Jesus was merely human. Jewish groups could not be required to admit anti-Semites and Holocaust deniers. Muslim groups could not be forced to admit persons who are viewed as slandering Islam.
It's important to recognize the limits of today's decision. It's not "all student groups must allow all students at all campuses." It's simply this: if a school wants to have an "all comers" policy, then it's allowed to enforce it and override the discriminatory beliefs of a group seeking recognition -- in other words, that the government is not required to fund discrimination. Different universities, however, can make their own decisions as to what works for them.
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