• August 29, 2015

Supreme Court Appears Split Over Law and Facts in Case Involving Christian Student Group

As the U.S. Supreme Court heard oral arguments on Monday in a case focused on whether a Christian law students' group has a right to exclude people who engage in homosexual behavior, the justices appeared deeply split—not just in their interpretation of the law, but in their understanding of the key facts underlying the dispute.

Many higher-education lawyers are closely watching the case, which pits the Christian Legal Society against the University of California's Hastings College of the Law, because the Supreme Court could issue a decision that leaves colleges and universities having to rewrite their nondiscrimination policies to let religious or political student groups reject potential members based on their religious beliefs or sexual practices.

During Monday's oral arguments, several members of the court's conservative majority expressed sympathy with the Christian Legal Society's argument that the law school's requirement that student groups be open to all infringes on the constitutional right of students to assemble based on religion or viewpoint. The court's liberal members, meanwhile, seemed supportive of the law school's argument that it has an interest in prohibiting officially recognized student organizations from discriminating against gay and lesbian students, regardless of the groups' motives.

Throughout the oral arguments, however, justices on both sides of the court's ideological divide expressed uncertainty about the exact nature and impact of the policy they were being asked to consider, because of remaining disagreements between the parties involved over the basic facts of the case, Christian Legal Society Chapter v. Martinez (08-1371).

Early in the proceedings, Justice Anthony M. Kennedy, sounding exasperated, asked, "What is the case we have here?"

That confusion over facts was seen as offering hope to Hastings, which had discouraged the court from taking up the case. It has accused the Christian Legal Society's lawyers of distorting the record of the case to make the law school's policies seem more hostile to religious organizations than they had been depicted to be when they were upheld by lower courts.

If the Supreme Court resolves its confusion by considering only those facts that both sides have agreed on, it will end up considering the factual record in the light Hastings wanted. If the court throws up its hands entirely and decides it made a mistake in even taking up the case and should not rule on it at this point—something it does with a handful of cases every year—the law school's policies will be left intact.

Considering the court's ideologically conservative tilt, however, many legal observers believe the likeliest outcome is a ruling in favor of the Christian Legal Society, a national organization that excludes gay men, lesbians, and others whose behavior it regards as sexually immoral.

"I'm pretty optimistic," Michael W. McConnell, a Stanford University law professor who argued the Christian Legal Society's case, said after the proceedings.

Clashing Realities

In its brief to the court, the law school has argued that the only policy it has had—and the only policy considered by the lower courts as a result of stipulations by both sides—is one requiring registered student organizations to be open to all.

"There should not be any debate about what policy is at issue here," Gregory G. Garre, a former U.S. solicitor general, told the court in arguing the case on the law school's behalf.

The Christian Legal Society is arguing that the law school's "all comers" policy is actually the second justification it gave for denying society members on its campus recognition as a registered student organization. Initially, the Christian organization says, the law school cited a policy that the society sees as more blatantly discriminating against religious groups—an antidiscrimination measure that, it says, bars registered student organizations from having belief- or behavior-based membership criteria in which the beliefs are religious or the behaviors sexual.

"Every time the policy is mentioned, it seems to morph into something else," Mr. McConnell complained to the Supreme Court on Monday.

In an exchange with Mr. McConnell, Justice Kennedy said the case being argued "is a much different case if Hastings treats CLS differently than it treats the Democratic or Republican clubs."

Mr. Garre argued, however, that even if the court decides the law school's policy has changed, it should focus solely on the policy as currently stated, because the Christian Legal Society is seeking a court injunction against the policy now on the books, and not damages related to any policy applied in the past.

Justice Sonia Sotomayor asked Mr. McConnell how the Christian Legal Society can even characterize itself as "banned" from the law school, when the law school lets such nonregistered student organizations use its facilities. Mr. McConnell argued that, as a practical matter, every time members of the group have sought permission to use campus facilities, "they have gotten the complete runaround."

Both Justice Kennedy and Justice Stephen G. Breyer noted the absence of anything in the case record suggesting that significant numbers of students have actually been denied membership to student groups. Justice Breyer wondered whether it is even possible for student groups to enforce litmus tests for membership based on adherence to an ideology, or which groups can be seen as ideological in their view of who should join. "I don't know how the chess club feels about players of tiddlywinks," he joked.

Measuring Evenness

On related points, the legal society and the law school also differ in their assessments of whether the all-comers policy has been consistently applied to every student organization, as well as in their predictions of how religious groups on college campuses will fare if the policy is upheld.

Mr. McConnell argued that the law school does not demand that every registered student organization accept all members, but Justice Antonin Scalia broke from his pattern of lobbing friendly questions at the Christian group's lawyer to scold its legal team for failing to offer solid evidence of inconsistent treatment.

Under questioning from Chief Justice John G. Roberts Jr., Mr. Garre, the lawyer for Hastings, said the law school has required the campus chapter of the National Council of La Raza to accept as members students who are not Hispanic. In response to a question from Justice Samuel A. Alito Jr., Mr. Garre offered assurances that the law school would deny recognition to an Orthodox Jewish organization that gave women a different status from men's.

Mr. Garre acknowledged some groups have membership criteria based on competitions or other measures of some form of merit, but argued that there is nothing discriminatory about such an approach. Justice Roberts asked, however, whether it might be possible for an organization to come up with a definition of "merit" based on a student's beliefs.

The Christian Legal Society has argued that, if all campus groups are required to accept anyone who wishes to join, then unpopular student organizations stand the risk of being subject to disruption or outright takeover by people hostile to their missions. Mr. McConnell raised that prospect in court on Monday, saying Hastings's policy requires a campus NAACP chapter to grant membership to avowed racists, or an environmentalist group to let in people who deny global warming.

Justice Alito seemed receptive to that argument, later asking Mr. Garre about a hypothetical 10-member organization of Muslim students. "If the group is required to accept anybody who applies for membership," Justice Alito asked, "and 50 students who hate Muslims show up and they want to take over that group, you say the First Amendment allows that?"

When Mr. Garre argued that there is no evidence of student groups being subverted in such a manner under its policy, Justice Alito pressed him, asking what recourse a Christian Legal Society chapter would have against such interference if the law school's all-comers policy is upheld. He questioned Mr. Garre's assertion that the original members of the subverted organization can always chose to leave it, asking in a skeptical tone, "If hostile members take over, former members of CLS can form CLS 2?"

Justice Ruth Bader Ginsburg suggested that existing law-school policies against incivility or disruptive behavior prevent such takeovers from occurring.

Mr. Garre argued that the law school's all-comers policy promotes diversity of opinion within organizations, but Mr. McConnell said its impact is actually a watering down of differences between student groups. "If student organizations are not allowed to have a coherent set of beliefs, there can be no diversity," he said.

Defining Discrimination

The four justices with liberal reputations focused much of their questioning on the law school's interest in prohibiting discrimination.

In exchanges with Mr. McConnell, Justice Ginsburg and Justice John Paul Stevens raised the question of how the professor thinks the law school should deal with student groups that hold or advocate discriminatory beliefs. Justice Ginsburg took her questioning a step further, asking how the law school should deal with a group that holds the belief that women should not occupy leadership positions.

When Mr. McConnell said the group should be granted recognition so long as it does not act on such a discriminatory belief, Justice Ginsburg said, "So they would have to negate their belief in practice?"

Mr. McConnell replied, "People can believe in all kinds of things that are illegal, but that does not mean they can do them."

In keeping with past court rulings showing deference to colleges' own decisions on the basis of academic freedom, Justice Ginsburg suggested that the best option for the court might be to leave Hastings alone to govern student groups as it sees fit. "It may be an ill-advised policy," she said, "but if the school says it is our policy, it is working fine."

Justice Scalia, however, was not nearly as accepting. "It is so weird to require the campus Republican club to admit Democrats, not just to membership, but to officership," he said. "To require this Christian society to allow atheists not just to join, but to conduct Bible classes. ... That's crazy."


1. supertatie - April 20, 2010 at 08:04 am

More social engineering. What this is REALLY about, is Hastings' insistence upon one set of beliefs which is deemed "proper" - in this case, requiring that all students accept homosexuality as acceptable behavior, when the tenets of some students' faith state that it is not.

And comparisons with Islamic jihad are unavailing here. Nothing in the Christian faith advocates violence or death to non-believers. Christian members of this group are asking that they be permitted to believe what they do, and that they be permitted to restrict their membership to those who share the same beliefs.

This is freedom of association. Hastings should be neutral on the matter, unless students or student groups are actually advocating violence.

But of course, Hastings defines "violence" as "anything you think which offends us."

They should be wary of such a standard. But they never are. And they will not see the error of their ways until Hastings is infiltrated and overtaken by a group which makes the prevailing groupthink there impermissible, because it is offensive.

Live by the thought police, die by the thought police.

2. pappaslaw - April 20, 2010 at 09:10 am

Hastings has no business defining which viewpoints are allowed in leadership in a student group. I thought I'd never say this, but Scalia's right on this.

3. joe_in_decatur_ga - April 20, 2010 at 09:31 am

I respectfully disagree with both supertatie and pappaslaw.

Supertatie, have you ever read any of Leviticus? The Bible does advocate violence against all manner of people, and its followers have a remarkable tendency to pick and choose which parts of it they wish to advocate.

The student groups are first of all members of the campus community and agree to live by its rules and regulations when they become students there. If the campus has a policy that student groups cannot restrict their membership, then all student groups have to abide by that policy.

Lastly, both of you are also ignoring the fact that the student members in the group do not have to elect any officer with whose views they disagree. Why not let the membership control its leadership, rather than creating rules that attempt to control the action of subsequent students who are members?

4. tridaddy - April 20, 2010 at 09:50 am

joe_in_decatur_ga: You can't simply stop with the reading of the Old Testament or only pick a particular book, chapter or verse if you are a Christian. What was proposed in the Old Testament, i.e., the Old Covenant, was transformed in the New Testament or the New Covenant. Any act of "violence" condoned or commanded in the Old Testament was not arbitrary under the Old Covenant. The New Covenant speaks of forgiving 70 x 7 (or without concern for the number of times to forgive) and the second most pressing command, to love others as we love ourselves. It would seem these later progressive revelations negate the call to violence (but not to pacifism). So, consider the entire Bible or don't consider any of it, but don't do what you've accused others of doing, picking and choosing portions to make their point.

5. dodgerfan - April 20, 2010 at 10:19 am

Any argument invoking "religion" is spurious. The issue is not whether a religious organizaztion has the right to include or exclude anyone. The issue is the proper use of public funds. Simlply stated, should tax dollars or student fees be used to fund a group that denies me membership? The nature of that denial is irrelevant.

The example of La Raza, which limits membership to people of Hispanic origin, is instructive here. For one thing, why would, say, a Swede want to join a Hispanic organization? But in the event said Swede did wish to join, that does not auatomatically mean he or she would become an officer of that organization. Officers are voted into office by members, whether La Raza or the CLS. Thus I do not see how a Swede would become a La Raza officer any more than an atheist would become a CLS officer; the stated fear of such an "overthrow" is merely a digression offered in hopes of muddling the issue.

Nor is it likely that said atheist would be teaching Bible classes. First of all, why would an atheist want to do that? And even were he or she to offer such a class, it does not necessarily follow that CLS members would attend it. Once again, a digression intended to muddy the waters. The only thing "weird" about any of this, with respect to Scalia, is that these fears are broached in the first place. Unless he is a complete idiot, Scalia should know better. And since he is probably not an idiot, it appears that framing this question as a "religious freedom" issue is a matter of seeking to impose not religion itself but a particular kind of religion upon the poublic, an imposition explicitly prohibited by the Constitution.

6. nyhist - April 20, 2010 at 10:26 am

this is a difficult case as the story suggests. I am of two minds about it. Certainly there is a right of assembly but the courts have long ruled that such a right does not allow blatant discrimination. And of course there is another point: student groups can exist without official recognition. What they get from recognition is, in part, a small subsidy--from public funds. Do student organizations that discriminate against students on the basis of their sexual orientation deserve public funding when such discrimination is against the law? they can discriminate all they want, but on their own dime. I think that's the way I'd come down on this one.

7. erikjensen - April 20, 2010 at 12:22 pm

The Christian Legal Society and its supporters appear to be arguing against a school policy that no longer exists. The policy is that all recognized student groups must be open to all students (whose fees support such groups). Their claim that this is discrimination against them is beyond absurd.

8. bpilgrim - April 20, 2010 at 12:51 pm

This reminds me of those "truth" ads about smoking. They make me want to start smoking.
"Justice Ginsburg took her questioning a step further, asking how the law school should deal with a group that holds the belief that women should not occupy leadership positions."
Stone them to death, obviously.

9. jffoster - April 20, 2010 at 01:58 pm

Under the policy of this public university, suppose enough activist Young Republicans and Tea Partiers join the campus Young Democrats to have a majority and elect officers whose beliefs and policies are inimical to the Young Democrats? What would prevent that from happening under this policy? An argument that it hasn't happened or is unlikely to happen is beside the point? Under Hasting's policy, what would prevent it from happening -- especially to smaller organizations with unchic views?

10. jesor - April 20, 2010 at 02:09 pm

You are correct in your assumption, however the reason it hasn't happened is because those democrats could then turn around and form a new group. This could continue until ultimately the republicans get a bit tired of it, and vice-versa.

I never thought I'd get to this point though, but is the question really a point of law, or is it going to be about how the members of the court feel about a political issue. Would the court lean the same way if it was a GLBT group prohibiting straight students, or a NOW group prohibiting men? I hope they would, but given the implications of this article I'm starting to lose faith that the court is truly an impartial body and instead becoming the "guardian council" for conservative values in the US.

11. jffoster - April 20, 2010 at 02:55 pm

jeasor (10), what if the Young Democrats tire first? A similar proposal actually came up in oral argument and the Court did not seem very receptive to it. My guess is that it'll come down 5/4 with Justice Kennedy providing the 5th vote. But what happens in Conference can be very different from what one might infer from questions during argument.

With luck the Court will be the Guardian Council against goofiness and Colleges' attempts to stifle all nonchic views and organizations which hold them.

12. reececonrad - April 20, 2010 at 06:37 pm

It is not right to use government fund to discriminate. That is the crux of the argument. If you want to keep someone out of a group then don't expect that person to pay taxes so you can do so.

13. mbelvadi - April 20, 2010 at 09:33 pm

I may have a hypothetical answer to why a group might want to take over another group - to control their budget. Remember that there's money at stake. For instance, suppose hypothetically that there were two factions within the student Republican club, one moderate, one far right, and the far right seized control and was making decisions that the moderates didn't like. They probably couldn't get funded to be a second Republican Club, but if they could take over the Democrat Club in sufficient numbers, they could control that pot of money granted to that club. I'm not sure how hard it would be for the remaining Democrats to complain to the administration that "their" money was being used to support Republican issues rather than Democrat ones, or what the administration could even do about that under their own rules.

14. jsch0602 - April 20, 2010 at 10:59 pm

What if a number of white students decided to participate in one of the special graduation ceremonies held for minorities? Or Asian students decided to join the campus La Raza group? Or white students in significant numbers joined a black student organization and used the funding for golf and ski outings?

15. joe_in_decatur_ga - April 21, 2010 at 12:09 am


I'm not picking and choosing in the Bible, nor do I need for you to explain to me what "true" Christianity is. I'm merely stating what "some" Christians do. Do you think that the folks at the Westboro Baptist Church with their "godhatesfags" website subscribe to your description?

16. tridaddy - April 21, 2010 at 09:33 am

joe_in_decatur_ga: My comment was not intended in a demeaning or condescending way. My point was that we either consider the entire Bible or none of it. To think that all those who proclaim to be truly Christian act in accordance with Christian teaching is obviously a misnomer. I would suspect God is greatly grieved by those claiming to be Christian that act as those at Westboro Baptist Church.

17. rhancuff - April 21, 2010 at 10:43 am

jffoster #11, how is opening membership "stifling" anyone? So what if the CRs infiltrates the CDs and elects their own officers? What's your legal point? Arguing that it would be inconvenient to groups if their leadership changed platforms every now and then isn't exactly a strong legal argument.

18. crichter - April 21, 2010 at 02:56 pm

dodgerfan, in the first paragraph, cuts to the essence of the issue. In the 1998 Supreme Court case National Endowment for the Arts v. Finley, Justice Kennedy joined a majority opinion that standards that allowed the agency to deny artists government funded grants on the basis of indecency was not unconstitutional. Justice Scalia authored a concurring opinion, joined by Justice Thomas, in which he argued "Avant-garde artistes . . . remain entirely free to epater les bourgeois; they are merely deprived . . . of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures 'aimed at the suppression of . . . ideas.'" Inother words, denying funding does not amount to censorship! Because Justices Kennedy, Scalia and Thomas are all honorable men, who believe in rule of law and (their own) precedent, I am sure their stand on this case will be entirely consistent with their NEA opinions!

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