Debate on Christian Legal Society case continues

by on December 27, 2009  •  In Constitutional law

An editorial in the LA Times:

The U.S. Supreme Court agreed last week to referee a dispute between a University of California law school and a Christian student group that claims it's being discriminated against — in the name of antidiscrimination. The Christian Legal Society, which requires its members to forswear sex outside heterosexual marriage, is contesting the refusal of UC Hastings College of the Law in San Francisco to afford it the privileges enjoyed by other student groups.

It's tempting for believers in equality for gays and lesbians (ourselves included) to side with the law school. But more is involved in this controversy than the school's opposition to discrimination on the basis of sexual orientation. The issue for the court is whether Hastings is denying the Christian group access to university facilities because of its beliefs, not its conduct. On this point, the Christian Legal Society has a strong case.

Hastings accords a broad range of groups the status of "recognized student organization," which gives them permission to use the college logo as well as access to college newsletters, bulletin boards and some activity fees. …

When the Hastings chapter of the Christian Legal Society applied for recognition, it was refused on the grounds that it violated the college's policy against unlawful discrimination "on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation." The school argued that although the society opens its meetings to all, it limits voting membership and leadership positions to students who subscribe to its interpretation of Christian doctrine, including a prohibition on homosexual conduct. That, according to Hastings, constituted discrimination against both non-Christians and gays.

The first of those charges is easy to dispense with. A 1995 Supreme Court decision involving the University of Virginia made it clear that state schools may not deny student religious groups access to activity fees available to other student groups. But what about the college's ban on discrimination based on sexual orientation? The Christian Legal Society argues that students with a homosexual orientation may join, and even lead, the group if they embrace its opposition to homosexual conduct.

We realize, of course, that very few, if any, gay and lesbian students would fall into that category. But that's not the point. The point is that the Christian Legal Society determines eligibility for membership not on who an applicant is but on whether he or she holds — and lives by — certain beliefs. In that sense it is no different from other groups united by a political or economic philosophy. Granted, some students find the society's beliefs offensive, and not all Christians share its views about homosexuality. But once the law school decided to recognize a variety of student organizations, it was required by the 1st Amendment to not pick and choose on the basis of beliefs, religious or otherwise.

reply by NCLR attorneys Shannon Minter and Chris Stoll:

…The Times asserts that CLS has a strong argument that it is being targeted for its beliefs rather than its conduct. That is not the case. The Hastings policy does not restrict in any way the beliefs that an official student organization may espouse. All that the policy requires is that any officially recognized student group must be open and accessible to all students. The Women's Law Assn., for example, must admit men, which it does. Likewise, the Black Law Students Assn. admits white students, and Outlaw is open to heterosexual students.

The fact that Hastings' nondiscrimination policy applies equally to all clubs without regard to viewpoint or subject matter of the club also distinguishes it from the 1995 Supreme Court decision to which The Times' editorial refers. In that case, a public university declined to provide official recognition and resources to a student newspaper because the paper was written from a religious viewpoint. Hastings' policy does not prevent official student organizations from holding or expressing any view, religious or otherwise. A variety of religious groups have existed at Hastings for many years. All of them comply with the nondiscrimination policy — except CLS.

Nothing about CLS' 1st Amendment freedom-of-association argument would limit which clubs could be exempt from Hastings' nondiscrimination policies. The 1st Amendment right CLS seeks would apply equally to a club that wished to discriminate for political or philosophical reasons, or simply out of animosity. To accept CLS' argument would mean, for example, that a white supremacist student organization would possess a constitutional right to obtain official recognition and eligibility for university funding while maintaining a membership policy that excludes African Americans, Jews and Roman Catholics. A ruling in CLS' favor could force universities to choose between being unable to enforce any sort of anti-discrimination rule against any student club or (more likely) ending all university support for any type of club. Is that what The Times wants?…


2 Responses to Debate on Christian Legal Society case continues

  1. Prup (aka Jim Benton) December 30, 2009 at 10:57 AM

    I have argued on another forum that at least one importand question is highlighted by, to quote the editorial, “students who subscribe to its interpretation of Christian doctrine.” This group calls itself the “Christian Legal Society” yet it takes positions on several matters — including but not limited to the acceptance of LGBTQ students — that would be objected to by many other branches of Christianity.

    To give a comparable example, could a group of Satmars, other Hasidim, or, for that matter, Reform Jews or “Jews for Jesus” create an organization calling itself the “Jewish Legal Society” and only accept members who accepted “students who subscribe to its interpretation of Jewish doctrine”? For example, (and I should state that I am not Jewish, but an ex-Catholic atheist, but one who is interested in various types of religion and who lives in a wonderfully mixed but predominantly Jewish — of all ‘varieties’ — neighborhood in Brooklyn) could such an organization establish — as certain forms of Orthodoxy would require — separate entrances and seating for men and women?

  2. 123 January 12, 2010 at 4:31 PM

    This is not true. A white supremicist club would discriminate against someone for something that they have no say over. People do not act in a certain way to be a certain color, it is how they are born. While homosexual activists may say that is how people who feel they are homosexual were born as well, these two scenarios are not equivalent. A person who feels they are homosexual chooses either to act or not to act on those feelings. So, it is a choice that they make. It is not like being a certain ethnicity. No one chooses to be white, black, chinese, or any other ethnicity. That is simply how you are born and you do nothing to act on that to make it a reality for yourself. So, this argument is a very common yet weak one.

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