• August 29, 2015

Supreme Court Decision on Law School's Anti-Bias Policy May Have Limited Impact

Constitutional Rights Clash in Battle of Law School and Christian Group 1

Photograph by Noah Berger for The Chronicle

The case, a challenge filed by a student group at the U. of California's Hastings College of the Law, pitted colleges' non­discrimination policies against student organizations with belief-based membership criteria.

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close Constitutional Rights Clash in Battle of Law School and Christian Group 1

Photograph by Noah Berger for The Chronicle

The case, a challenge filed by a student group at the U. of California's Hastings College of the Law, pitted colleges' non­discrimination policies against student organizations with belief-based membership criteria.

A bitterly divided U.S. Supreme Court held Monday that a California public law school did not violate the First Amendment in denying official recognition to a Christian student group that effectively excluded homosexual students from membership based on their beliefs and behaviors. But the parties involved in the case, as well as experts on student organizations, disagree over whether many colleges have policies similar enough to the one at issue in the case to be affected by the decision.

In its 5-to-4 ruling, the Supreme Court held that the University of California's Hastings College of the Law acted reasonably, and in a viewpoint-neutral manner, in refusing to officially recognize and give funds to a campus chapter of the Christian Legal Society because the group refused to abide by the school's requirement that student groups open their membership to all.

Justice Anthony M. Kennedy joined the court's liberal wing in rejecting the Christian Legal Society's argument that the policy infringed on the student group's First Amendment freedoms of expression and association. The majority opinion, written by Justice Ruth Bader Ginsburg, declared that it is "hard to imagine a more viewpoint-neutral policy than one requiring all student groups to accept all comers," although it left open the possibility that the lower courts may still determine that the policy has been inconsistently applied.

"Hastings, caught in the crossfire between a group's desire to exclude and students' demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership," the majority opinion says.

In a harshly worded dissent, the four other justices on the court denounced the majority opinion as resting on the principle of "no freedom of expression that offends prevailing standards of political correctness in our country's institutions of higher learning."

The minority opinion, written by Justice Samuel A. Alito Jr., called the court's decision "a serious setback for freedom of expression in this country" and accused the majority of selectively interpreting the factual record to ignore evidence that Hastings had discriminated against the Christian student group based on its views. "The court's treatment of this case is deeply disappointing," and its decision "arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups," the minority opinion says.

Reactions and Reach

The case had been widely watched partly because similar conflicts have popped up at a long list of other colleges where students have tried to set up Christian Legal Society chapters. Although the U.S. Court of Appeals for the Ninth Circuit had ruled in favor of Hastings in the dispute before the Supreme Court, the U.S. Court of Appeals for the Seventh Circuit had held that a similar policy at Southern Illinois University at Carbondale infringed on Christian Legal Society's freedom of expressive association, and some colleges had carved out exceptions to their antidiscrimination policies in response to similar challenges from religious groups.

Leo Martinez, who was named as the defendant in the lawsuit as the Hastings law school's acting chancellor and dean, issued a written statement on Monday welcoming the court's ruling as validating a policy "rooted in equity and fairness." His statement said the law school's intent "has always been to ensure the leadership, educational and social opportunities afforded by officially recognized student organizations are available to all students attending public institutions."

The Supreme Court's decision was similarly welcomed by Edris W.I. Rodriguez, a spokesman for Hastings Outlaw, a registered organization for gay, lesbian, and bisexual Hastings law students that had intervened as a defendant in the case. In an e-mail message, he said, "We are pleased that no student will be forced to have his or her student-activity funds support an organization in which he or she cannot participate."

But Michael W. McConnell, a lawyer who argued the Christian Legal Society's case before the Supreme Court, predicted that the ruling actually would have a limited impact on colleges, because, he argued, few actually have the sort of all-comers policy for student groups that the majority ruled on.

"The policy that the Supreme Court addressed is highly abstract and hypothetical," said Mr. McConnell, director of the Stanford Law School's Constitutional Law Center. He expressed confidence that the Christian Legal Society would be able to demonstrate in the lower court that Hastings has enforced its policies selectively, in a manner that hurts religious groups.

The Alliance Defense Fund, which helped represent the Christian Legal Society members seeking recognition on campus, similarly predicted that Monday's decision would have limited impact because few other institutions have exactly the same policy. In a written statement, Gregory S. Baylor, the group's senior legal counsel, said the Hastings policy requires the Christian Legal Society to allow atheists to lead Bible studies or the College Democrats to allow the election of Republican officers. "We agree with Justice Alito in his dissent that the court should have rejected this as absurd," Mr. Baylor said.

Among the organizations that had submitted friend-of-the court briefs in support of the Christian Legal Society, the Foundation for Individual Rights in Education on Monday issued a statement predicting the court's ruling will lead colleges to withdraw recognition from devoutly religious groups. It called the ruling "a loss for diversity and pluralism on campus, not a win."

By contrast, the American Civil Liberties Union, which submitted a friend-of-the-court brief supporting the law school, issued a statement praising the decision. "Today's ruling sends a message that public universities need not lend their name and support to groups that discriminate," its legal director, Steven R. Shapiro, said.

Justice Ginsburg was joined in the majority opinion by Justices Kennedy, Stephen G. Breyer, John Paul Stevens, and Sonia M. Sotomayor. In the dissenting opinion, Justice Alito was joined by Chief Justice John G. Roberts Jr., and Justices Antonin Scalia and Clarence Thomas.

Fighting over Facts

One of the central disputes in the case had been the question of which policy the Supreme Court should rule on: the "accept all comers" policy that Hastings had testified to having, or the written nondiscrimination policy on its books, which prohibited registered student organizations from having belief- or behavior-based membership criteria in which the beliefs are religious or the behaviors sexual. The Christian Legal Society's lawyers and the court's dissenting minority had argued that the court should focus on the written antidiscrimination policy, which appeared much harder to defend as viewpoint-neutral.

Justice Alito's dissent argued that the courts had been presented "overwhelming evidence" that Hastings denied recognition to the proposed Christian Legal Society chapter pursuant to the written nondiscrimination policy. Although Hastings said its "accept all comers" policy had been in place since 1990, there was no evidence of its having been put in writing or brought to the attention of others at the law school prior to the July 2005 deposition of Mary Kay Kane, then the dean of the law school, in connection with the Christian Legal Society's lawsuit. Moreover, the justices in the minority argued, the courts had been offered evidence that Hastings had routinely registered student groups with viewpoint-based membership and leadership criteria, and had taken steps to ensure that groups accept all comers only after the Christian Legal Society chapter pointed out a double standard in response to Dean Kane's assertion that an all-comers policy was in place.

The majority opinion, Justice Alito wrote, "ignores strong evidence that the accept-all-comers policy is not viewpoint-neutral because it was announced as a pretext to justify viewpoint discrimination."

The majority opinion argued that the Christian Legal Society had itself stipulated, in U.S. District Court, that the all-comers policy was the only one at issue. The majority rejected the society's "unseemly attempt to escape from the stipulation and shift its target to Hastings' policy as written," but the court could not even reach agreement on what the lower-court stipulation had been. The justices in the minority said the Christian Legal Society had conceded the existence of an all-comers policy but had not abandoned the argument that the nondiscrimination policy had been used.

The question of whether many public colleges even have all-comers policies was unsettled Monday after the court handed its decision down. Gregory Roberts, executive director of the American College Personnel Association, a group that represents student-affairs professionals at private and public colleges, said it is common for colleges to require student groups to follow nondiscrimination policies, but he was unfamiliar with all-comers policies such as the one Hastings said it applied. But Ada Meloy, general counsel for the American Council on Education, said, "I think that both are relatively common."

Questioning Motives

The majority opinion praised the all-comers policy for ensuring that the opportunities offered by student groups are available to all students and that no Hastings student is forced to provide financial support to a group that would not have him or her as a member. The opinion said the all-comers policy also helps Hastings police its written nondiscrimination policy without having to take on the "daunting labor" of trying to determine whether a group had excluded someone based on its biases or the person's beliefs.

The Christian Legal Society had proposed that Hastings prohibit discrimination based on a person's sexual orientation but allow exclusions from membership based on beliefs or behavior—in essence allowing religious groups to bar from membership people who endorse or unrepentantly engage in homosexual behavior. In response, the majority opinion cited Supreme Court precedents holding that laws against certain conduct can amount to invitations to discrimination, that a law barring homosexual behavior opens the door to discrimination against gay and lesbian people.

In seeking to exclude people based on beliefs, the Christian Legal Society "seeks not parity with other organizations, but a preferential exemption from Hastings' policy," the majority said.

The minority opinion challenged the idea that Hastings even had a true "accept all comers" policy, arguing that the law school had acknowledged that it lets student groups have certain membership and conduct requirements that are not discriminatory.

In addition to signing on with the majority, Justice Stevens wrote a separate opinion in which he argued that even the written nondiscrimination policy challenged by the Christian Legal Society was "plainly legitimate" and "meant to promote, not to undermine, religious freedom." While a free society must tolerate the existence of groups that exclude or mistreat people based on race, religion, or gender, it "need not subsidize them, give them its official imprimatur, or grant them equal access to law-school facilities," Justice Stevens said.

Justice Kennedy wrote a separate concurring opinion in which he made clear that he had accepted the law school's characterization of the factual record, and that is what swayed him. If the court had evidence before it that the purpose or effect of the policy was to stifle or undermine speech, that "would present a case different from the one before us," he said.

Carrot or Stick?

The justices in the majority and minority also disagreed strongly with each other over the question of whether the law school's requirements had imposed a serious hardship on the students seeking to form a campus chapter of the Christian Legal Society.

The majority said the Hastings policy "is dangling the carrot of subsidy, not wielding the stick of prohibition," because it leaves such groups free to exclude anyone they wish, so long as they are willing to go without the various benefits that come with official recognition, such as institutional financial support and the use of campus chalkboards and bulletin boards to advertise meetings.

"Private groups, from fraternities and sororities to social clubs and secret societies, commonly maintain a presence at universities without official school affiliation," said the majority opinion, which argued that the emergence of electronic media and online social networking sites has removed much of student groups' needs for access to officially sponsored communications channels.

In an article published Monday on the Huffington Post Web site, Adam Goldstein, a lawyer for the Student Press Law Center, challenged such logic as akin to justifying racial discrimination at lunch counters on the grounds that people can eat at some other location. "The existence of places where rights aren't being violated can't be held up to defend the violation of rights occurring somewhere else," he said.

The majority also discounted as "more hypothetical than real" the Christian Legal Society's argument that requiring student groups to accept everyone will leave them vulnerable to being infiltrated and subverted by students who oppose them. "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," the majority said.

The dissenters challenged the law school's assertions that it had made sincere efforts to try to accommodate students who belonged to the Christian Legal Society, citing evidence showing that administrators at the school had responded to requests for access to facilities by dragging their feet until the planned events had passed.

"The 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," the minority opinion said.


1. washingtonwarrior - June 28, 2010 at 04:01 pm

Chalk one up for the good guys...

2. bphil - June 28, 2010 at 04:13 pm

Absolutely. I fail to see how withholding funding from a group that promotes bigotry and exclusion is anything like a blow to freedom. Let the discriminatory groups do what they want, but why compel any institution to fund them? Incidentally, let's remember that Alito's membership in an elitist, anti-affirmative action, anti-coeducational, and far-right group at Princeton--CAP--was raised during his confirmation and abruptly minimized. In fact, he said he couldn't remember ever joining. Perhaps the failure of CAP to make any lasting difference in Alito's perspective should have tempered his views here. What is the enormity of the blow to freedom if later nobody can remember joining these lousy groups?

3. davidgmartin - June 28, 2010 at 04:26 pm

So, we are not free to associate with whom we want - rather government can use money to coerce us. Let us reverse the case and see what your position is. Let us imagine a LGBT student organization having to accept Islamic fundamentalists into membership who believe that any person who is lesbian, gay, etc. . . is inherently evil. Are you all okay with that? Be careful what you wish for.

4. 22221103 - June 28, 2010 at 04:32 pm

I agree with the question davidmartin raises. Should a LGBT group have to accept somone that is against homosexuality and will vehemently oppose those issues at the meetings and anything that group does in public? What if enough anti-homesexual people join the LGBT group and then they vote against using their funds for the types of things the club was originally created to do?

5. _perplexed_ - June 28, 2010 at 04:33 pm

Re #3: The Christian Legal Society can refuse membership to anyone they choose, just as long as they don't seek to also be an officially sponsored student organization entitled to funding from nonmember students. So yes, #3, I'm perfectly OK with that.

6. 22221103 - June 28, 2010 at 04:38 pm

Perplexed: So if the LGBT group seeks to be an officially sponsored student organization entitled to funding from nonmember students, you would be okay with my questions in #4?

7. _perplexed_ - June 28, 2010 at 04:40 pm

Absolutely! If students are compelled to pay, they should be entitled to join.

8. 22221103 - June 28, 2010 at 04:42 pm

And change the nature of the club too?

9. new_theologian - June 28, 2010 at 04:42 pm

How about sticking to issue and avoiding the anti-Christian bias? The question is whether a public institution can discriminate in its distribution of funds based on view-point driven membership limitations. That is obviously a sticky question. The left has argued repeatedly that funding an organization is a form of endorsement, so that public funding of religious groups would violate the establishment clause in the Constitution. Dubious, but generally successful in the courts. So, on that basis, this institution decides that it will fund (thus "endorse") only those organizations that do not discriminate on the basis of viewpoint. This is clearly view-point discrimination, but not of the sort we're used to. It is discrimination against any group that has a point of view which the group exists to promote. So, if the institution is to be consistent, it will have to stop any funding to homosexual rights groups if they refuse membership to those who oppose homosexual rights. This ruling is a Trojan horse. It will render the institution's all-comers policy as nonsensical in the practical arena as it is in the theoretical one. People form group associations because they share points of view and advancement agendas. If those distinctions between persons cannot be used as criteria for the formation of groups, then it is irrational to form groups at all. Even people who form a chess club will expect its members to enjoy playing chess, or at least not to oppose its other members' intention to play chess, or to abide by the established forms of the game in competition. So maybe the institution should just get out of the game of funding student groups altogether.

10. victorl - June 28, 2010 at 04:47 pm

RE #3:
This is exactly what was required of the Gay Pride organizers who held an event in Minneapolis recently. A fundamentalist Christian insisted on handing out bibles and advice to attendees, and the event organizers were forbidden to restrict his access to events or circumscribe his speech. When an event is open to the public and held on public land, it must take all comers. The circumstances are not entirely analogous to the law school example, but a public (state) school should not (cannot?) restrict access to its publicly funded programs and activities on sexual orientation bases. See http://www.startribune.com/opinion/editorials/97195139.html?elr=KArksUUUoDEy3LGDiO7aiU for the Minneapolis article.

I believe, too, that this was a central argument in the situation where the fundamentalist Christian was permitted to harassed all those military funerals because he felt all the deaths were punishment for the armed forces allowing gays and lesbians to serve their country. What a world.

So, #3, the reverse is already required and enforced. It's time for the Christian right to play by the rules.

11. supertatie - June 28, 2010 at 05:13 pm

Here's a simple solution: don't charge student activity fees.

12. ulysses - June 28, 2010 at 05:15 pm

Really? I'm astonished at reading the responses to this by what I assume are intelligent well intentioned readers. This opens the door to the Law School funding only select groups and gets more and more arbitrary as to who gets funding. I know the general bias here is Anti-Chritian, and I'm not attempting to defend Christian religeous beliefs, but it truly is about the right of expression. The secular religeous beliefs of groups such as the young democrats, or young republicans are as aggressive,and exclusionary in their political beliefs as the Christians are in their anti-homosexual religeous beliefs; they are just a differnt set of beliefs. Can you imagine a left leaning political student group welcoming a conservative member...really? or a conservative group welcoming a liberal member? By the nature of a group, they have a set of common beliefs that others may not like or feel "comfortable" being a member of. Further, by being forced to have such members it clearly is no longer free assembly. Where does this nonsense stop. Why would a Jew need to be able to join a moslem student group before the later gets funding? why would either moslem or christian have to be able to join Hillel before any of these groups could be "funded"? Most "groups" have opposing views, and people who radically oppose those things that the group feels strongly about...why can't they simply declare that they don't want those folks in their group? those opposed can fund their own group like: the Chritian Homosexual Law Student Group. They can also state in their charter that if one has the view that homosexuality is sinful..or whatever, they can't join a group by and for Homosexuals. All should be funded. It is what the market place of the exchange of free ideas is all about. Let the groups all exist, have great debates on campus with each other create a truly learning environment...what is this govenment censorship? A state sponsored religeon is what the framers were attempting to prevent - Not in effect silencing anything that may have to do with religeon.

13. tscharn - June 28, 2010 at 05:29 pm

When we went before student government to get funding to start an animal rights group at my previous college, we were asked what we would do if someone of the opposite view wanted to join. We said that we couldn't see why they would want to, and were then informed that we had to abide by an "all-comers" policy. We agreed to this and never had a problem (though we did on occassion have a few attendees who didn't agree with our views, which was fine).

If you don't want to agree to a funder's rules, you are always free to get funding elsewhere. Many groups go that route and form or become part of off-campus centers because they want the flexibility to control membership for various reasons.

14. nampman - June 28, 2010 at 06:53 pm

13 is correct - "If you don't want to agree to a funder's rules, you are always free to get funding elsewhere. Many groups go that route and form or become part of off-campus centers because they want the flexibility to control membership for various reasons."

Anyone can get together with like minded individuals and fund it themselves but student activity fees cannot be used to support a group that would exclude one who pays them. Any group of students is free to include or exclude who they like but they may not have money that comes from each student.

This ruling does not infringe free speech, only free funding (to which we do not have a constitutional right).

15. wmartin46 - June 28, 2010 at 07:11 pm

> "If you don't want to agree to a funder's rules, you are
> always free to get funding elsewhere.

That's true .. but in the case of public schools, the public is paying the bill .. not the Uni's Admins. The issue of funding may not be the only issue. In some cases, groups that were not considered as "official" have not been able to get space in student meeting places, and I vaguely remember a case where there was a disciplinary action brought against an "unofficial" group for posting fliers in a student union (although this is hazy in my memory).

> "hard to imagine a more viewpoint-neutral policy than one
> requiring all student groups to accept all comers,"

Several posters have already pressed this point, but it seems to me that SCOTUS has failed to appreciate the ability of one group to destroy another by demanding entry, and then overwhelming the original group.

From another article on this ruling:
The US Supreme Court on Monday ruled that a San Francisco law school did not violate the First Amendment when it refused official recognition of a Christian student group that restricted its membership to those who shared a belief that homosexualty is immoral.

So .. what about a group that believes that pedophilia is "immoral", and wants to be "activist" stamping out this behavior. Presumably Ms. Ginsberg, et al, have now claimed that Universities/Colleges are not obligated to "acknowledge"/fund such groups, unless they open their membership to members of NAMBLA? Has SCOTUS considered these sorts of cases? Presumably Ms. Ginsberg would see nothing wrong with funding NAMBLA, but not the anti-NAMBLA group?

16. aifos - June 28, 2010 at 07:42 pm

This whole "group thing" is ridiculous. Some here suggest "what if one group destorys another" OH MY GOD!!!! HOW DEVASTATING! Get real! I have never understood this: Black groups, Hispanic Groups, Gay, Lesbian, Christian, Republican, Democratic. ITS COLLEGE! It's time to be daring! to learn! to experience! Let the groups destroy each other - I'll be happy to fund that. (Maybe that was the subversive goal of today's ruling.) From my perspective, these groups just seem to propagate exclusion, arrogance and self-righteousness (all of them: left, right, center, liberal, conservative). Today I heard a new one: Asian and Pacific Islander Engineering Students. Really now... people should get over this High School mentality and grow up.

17. aifos - June 28, 2010 at 07:49 pm

I think I will form the Anti-Group, seek funding from student fees, and not exclude everyone.

18. new_theologian - June 28, 2010 at 07:52 pm

It seems to me that the whole question of public funding of student groups has to come under examination here. One commenter notes that in public institutions, the public is paying the bill, not the administration--or, more precisely, private contributors. That fact actually makes me more comfortable with the ruling, if, what it means, is that NO student groups will receive public funding. That's the upshot here, as I see it. Let all comers seek private funding. Maybe there are donors who so value open debate that they are willing to fund, privately, even those voices with which they do not agree.

That said, the space issue I think has already been dealt with by the Supreme Court in other cases. The issue came up several years ago, as I recall, with respect to the public school in a particular area opening space at night for organizations that wanted a place to meet. They attempted to discriminate against a Christian group (of course, who else?) on the basis of Church/State, but they lost on the grounds of view-point discrimination. Once they open their doors to the public, they cannot close their doors because they prefer certain members of the public over others. If the institution wants to allow privately-funded groups, they cannot stipulate what groups they will be. They are a public institution, not a private one, and have to allow all comers. That's that.

19. rrtyfd - June 29, 2010 at 04:11 am

And change the nature of the club too?

20. jkwilso2 - June 29, 2010 at 08:02 am

#18 is wrong; the CLS decision does not ban funding for RSOs. It means let all comers join student groups. It's important to recall that these are not private organizations. Student groups are legally sub-units of a public college, and that's why the college is obligated to stop discrimination. As I note on my blog, collegefreedom.blogspot.com, this was a wise decision that requires colleges to prohibit hostile takeovers that try to destroy a group, but refuses to let that excuse justify the CLS use of loyalty oaths and codes of conduct against its students.

21. lee77 - June 29, 2010 at 08:05 am

I'm with aifos - if a group lacks sufficient cohesion and commitment to their group that they could be 'destroyed' by infiltrators, especially in a college environment where membership probably changes every year, so what? Now if the infiltrator disrupts meetings, vandalizes materials (including website) etc, there should be a way to address the disruptions, the same as if a 'right believing' member did such things.

22. jdub2b - June 29, 2010 at 09:04 am

As an aside, the Christian group is opposing itself. Christians are supposed to accept everyone.

23. cnakashi - June 29, 2010 at 09:57 am

Amen #16, amen...

24. victorl - June 29, 2010 at 10:28 am

What I also see brought to light by this article and the discussion that follows, is a question of what sort of groups a public university should be using tax dollars to fund. Student organizations that are exclusionary in their basic outlook and formulation (religious-based, politically-based, etc.), perhaps should find some other outlet than student fee supported activity.

If universities themselves took a more parochial (if you'll pardon the phrase) approach to extra-curricular activities they funded, then they could easily find themselves not needing all the protections, supreme court decisions, etc., to govern how these groups behave and interrelate. Instead of an "Asian and Pacific Islander Engineering Students Association," have student groups be more relevant to the academic mission of the university. There's nothing wrong with simply an "engineering students" organization. And if this student group makes Asian and Pacific Islander students feel unwelcome, that is a separate issue for the university to resolve. And not by further bifurcating the student body along the lines of our often woefully divided society at large.

25. dld18 - June 29, 2010 at 11:03 am

It may not be the case at all institutions, but in my 20+ years of experience in student affairs I have found that most simply collect and hold student activity fee funds. It is usually the student government that decides how funds are allocated.

26. goxewu - June 29, 2010 at 05:27 pm

Let's see...

The law says if you're taking public funds, no discrimination on the basis of sex, race, creed, color, national origin or (now) sexual orientation is allowed. So a club what accepts public funds (i.e., funds from a university that accepts public funds) has to abide by the law.

What's the problem here?

* That a club whose beliefs/mission-statement, etc. mandates discrimination on account of sex, race, creed, color, national origin, or sexual orientation is vulnerable to having its "nature changed" if it can't discriminate. Answers: a) Too bad; b) the possibilities of enough otherwise-discriminated-against people joining the club to change its nature is remote; c) if you have to choose between non-discrimination (i.e., civil rights) and protecting the "nature" of a club, non-discrimination is the priority.

* That the Government (that is, the law) is "telling you" with whom you can and cannot associate. Answer: No it's not. The law simply tells you that if you accept public funds, you can't discriminate on the basis of sex, race, creed, color, national origin or sexual orientation.

Note: If the decision had gone the other way, you might have partly publically funded "Christian Identity" clubs composed of people who think non-whites are the Devil's spawn discriminating against anybody who's not white. And no, it shouldn't be legal for publically funded "black power" clubs to prohibit whites from joining, publically funded feminist clubs to prevent men from joining, publically funded "men's rights" clubs from preventing women from joining, etc.

The point is, if the "nature" of your club depends on the ability to exclude anybody on the basis of sex, race, creed, color, national origin or sexual orientation, then it cannot accept public funding.

27. new_theologian - June 29, 2010 at 06:38 pm

In response to #20, I have to confess that I do not know what an RSO is, so I can't even say whether or not my interlocutor has interpreted my remarks correctly. I THINK it means "religious student organizations." If that's so, I would have to say that, at a practical level, the ruling would ban public funding of such organizations, since, again, at a practical level, these groups necessarily discriminate according to creed and practice. If they don't, their existence is utterly meaningless.

That said, the remark at #22 is overly simple. Of course Christianity is about restoring unity to a fragmented humanity, and thus, about overcoming boundaries. But this is done through the concrete conformity of one's life to the New Adam, in whom alone all are made one and heaven and earth are united. If this thesis is rejected, or we refuse the demands implicit in it, then the whole idea of Christianity is undermined.

We find a similar issue with Judaism. Note the story of Naaman in 2 Kings 5:1-19. Naaman is never permitted direct contact with the Prophet because he is not a man of the Torah by outward observance, and thus, ritually unclean. But the story exists in part to communicate to the people Israel that discrimination on the grounds of practice is not necessarily a judgment about the person's inner heart. Naaman is healed of his disease, indicating that he is inwardly cleansed of his faults. We see this because he begs for a measure of earth that he might serve the God of Israel in his own land, and never again bow down to another. So Naaman, who is not a Jew by observance, is a man of the Torah in his heart. But this fact--the fact that he is righteous before God--is not enough to make him concretely a Jew. The importance of being a Jew--a keeper of the Law outwardly--is the role of Israel in the history of Salvation. Their distinction according to practice remains essential to their unique historico-salvific (i.e. "soteriological") vocation. Thus, to admit to their company those who do not keep the Law outwardly is to undermine their very identity, even if that fact does not amount to a form of triumphalism or judgmentalism. There are numerous other passages in the Scriptures addressing this issue. It is an issue that lies at the heart of the dispute over circumcision and dietary laws in the early Church, and the expulsion of Christians from the synagogue at the Council of Jamnia (but not there immediate excommunication by the Sanhedrin).

Would it really make sense to have a Hassidic group admit Barbeque Bob to their ranks? Just how would that work, exactly?

28. 22174061 - June 29, 2010 at 08:44 pm

new_theologian, you've written a great deal on this forum without having actually read the Supreme Court decision, where "RSO" is clearly defined as Registered Student Organization - i.e., it applies to all groups, not just those that are faith-based. You ask if it would "make sense" to admit miscast individuals to a religious group, but what sense this all makes to people like you is not the issue. The issue is taking money (generated from student activity fees) from people you would then turn around and directly discriminate against, simply because of who they are (e.g., someone whose sexual orientation is gay or lesbian). If following the all-comers inclusiveness policy that Hastings requires would threaten CLS's viability as a faith-based group, then as many others have suggested CLS can remain true to its by-laws and simply forego the public subsidy.

29. new_theologian - June 30, 2010 at 12:46 am

22174061, something tells me I'm not the only one commenting here who has not yet found the time to read the decision. It's not my AOS, so if I get to it, I get to it. I do read these things from time to time.

In any event, I fail to see where I've said anything incorrect here. If you read my first post (#9), you'll see that I concede the perspective of the public institution operating with public funds. My point is that, religious or no, groups are formed because people associate with one another in promotion of a common interest or agenda. The "Chocolate Ice Cream Club" promotes eating chocolate ice cream. People who oppose the consumption of chocolate are not really what the CICC is all about. If the members can't discriminate on this basis, then the purpose of their existence is called into question. So if that is a problem for public funding, then the CICC should seek private funding. But, practically speaking, what organizations would remain? If the answer is "none," then isn't the reasonable thing just to say that no funding will take place at all?

30. new_theologian - June 30, 2010 at 01:09 am

Oh, and let's consider this one. It is in principle impossible for a blind student to enjoy a silent film festival. Would it be a violation to fund such an event because, in principle, some students would be excluded de facto, even if they were technically permitted entry? Would it be a violation to support an art collection featuring work solely to be seen and not touched, smelled, or heard? It's not clear to me what we're left with once we go down the "all comers" road. If we want to pave that road, fine. But we need to see where it will lead and agree that we want to go there. We won't be able to fund much of anything really interesting. Are we really ready to accept that?

An irony, of course, is that those who want the "all comers" policy are likely also those who would promote public funding initiatives, whereas those who would reject the "all comers" policy as silly are not really likely to support public funding initiatives in the first place. Much ado about nothing?

31. goxewu - June 30, 2010 at 10:04 am

Re #s 9, 18, 27, 29 & 30:

* The Hasting decision does not restrict public funding for "viewpoint-driven" clubs per se. It says only that if a viewpoint-driven club discriminates, because of its viewpoint, on the basis of sex, race, sexual orientation, etc., it cannot get public funding. Which is to say, there's a difference between a club's viewpoint and a club's putting that viewpoint into practice if it involves discrimination in its membership on the basis of sex, race, sexual orientation, etc.

* new_theologian approves of a court decision saying that if public schools open their doors to certain private groups to meet in them at night, then the schools must open their doors (presumably with a reasonable application process) to all comers. "Once they open their doors to the public," new_theologian says, "they cannot close their doors because they prefer certain members of the public over others." In terms of discrimination on the basis of sex, race or sexual orientation, etc., that same "open their doors" applies to the groups themselves in terms of sex, race and sexual orientation.

* The reason why it seems that Christian groups are disproportionately the objects of these non-discrimination suits and counter-suits is because the place of churchgoing Christianity as the unspoken default ground on which every citizen stands has become less and less the case over the years. The America of Thorton Wilder's "Our Town" is not the America of 2010. When a Christian group says to someone, "No, you can't join our group because you're gay--which we believe is a sin," and is told that it then has to forego public funding because discrimination on the basis of sexual orientation is illegal, it's a loss of formerly taken-for-granted power which causes--understandably but not justifiably--distress among many Christians.

* Bible stories, e.g. Naaman, are fascinating (even to unbelievers such as I, as parables or examples of de jure vs. de facto) but irrelevant to the Hasting decision. As is the hypothetical application of "Barbeque Bob" (a typical Christian? new_theologian implies it, not me) to join an Hasidic group (which, if it stuck to a racial definition of who could join, wouldn't get public funding).

* If it accepts public funding, "The Chocolate Ice Cream Club" cannot discriminate against lovers of chocolate ice cream who are women, members of certain races, come from certain countries, are gay, etc.

* Practically speaking, any organization that doesn't find it necessary to discriminate on the basis of sex, race, sexual orientation, etc., will "remain." There are lots of schools already enforcing non-discrimination policies vis-a-vis student organizations, and at them student organizations have not ceased to exist. Watch the same thing happen at Hastings.

* That certain students are unable to appreciate or participate in the main activity of a club or event (e.g., the blind student vis-a-vis a silent film festival) is no argument against the Hastings decision. Those students are still not discriminated against a priori; they simply choose not to join those clubs. That nearly every club is unsuitable for certain students (e.g., a hiking club for the wheelchair-bound) is not the equivalent of its a priori discriminating against students because of sex, race, sexual orientation, etc.

* That if "we go down the 'all comers' road" "we won't be able to fund much of anything really interesting" is preposterous. I've a hunch that if new_theologian (who, to paraphrase The Who, seems a lot like the old theologians) took a look at the roster of student organizations at schools already enforcing a non-discrimination policy, even he/she would find many (to say the least) organizations whose purpose and subjects are "really interesting." And reason tells us that a student club devoted to, say the history of espionage, that did not discriminate against prospective members who are women, black or Hispanic, gay, etc., would still be "really interesting."

* If "those who want the 'all comers' policy" (read: liberals) are likely to promote public funding initiatives and those who want to discriminate on the basis of sex, race, sexual orientation, etc. (read: conservatives? I hope not) are likely not to promote those initiatives together consistute "much ado about nothing," why is new_theologian (five posted comments) making much ado about supposed nothing?

What rankles most opponents of the Hasting decision is simply the fact that being gay is now no longer legally considered a "lifestyle choice," let alone a sinful one, but instead is legally considered as bedrock part of one's identity as one's sex and race. Just as you can no longer say, "No Irish [or women or blacks or Hispanics or ] need apply," you can no longer say, "No homosexuals need apply." If that flies in the face of some religious beliefs (just as no longer being apply to say "No blacks need apply" used to--and still does, in places--fly in the face of some religious beliefs), too bad. The Constitution, as embodied in case law pertaining to it, trumps particular religious beliefs.

32. new_theologian - June 30, 2010 at 12:07 pm

So the assertion is that not all students need be treated equally, as long as they are denied access to a club supported by public funding (including their own student activity fee) for reasons other than race, creed, sex, or sexual orientation or disability. We CAN discriminate against people because they hold political agendas, for example, contrary to our own? I'm not sure I understand what forms of discrimination are O.K. Is goxewu acknowledging that the CICC can restrict membership on the basis of opposition to the consumption of chocolate?

Now, I have to say that when Christians have argued that homosexuality is not a cause for discrimination, but homosexual practice is, homosexual rights groups argued that this treatment would not do, because it is not enough to be accepted, one's right to act upon one's inclinations must also be accepted. Now, when we come face-to-face with the fact of competing interests, it's suddenly O.K. for Christians and other groups to be accepted so long as they don't act on their beliefs. That seems to me very odd, since the nature of a religious belief is that it moves us to some sort of action--some sort of life change, while everyone has sexual inclinations that we accept, in society, will be controlled rigorously. It is particularly odd and disturbing to me that someone would suggest that somehow sexual orientation is constitutionally protected in a way that trumps religious belief. Religious belief--and, indeed, exercise--is garaunteed protection, explicitly, in the First Amendment; sexual orientation is nowhere mentioned in the Constitution at all. Of course I am aware of the accepted limitations to things like human sacrifice, but really, the limitations require pretty extreme practices.

That said, I don't particularly care about the public funding issue--although it is hard to argue that this would be an originalist interpretation of the Constitution, since, in the early years, churches actually were funded by the federal government because a religious consciousness was considered essential to the sort of moral foundation necessary for self-governance. But if we want to say that's not really consistent behavior, O.K. I just want consistency all around.

33. goxewu - June 30, 2010 at 02:17 pm

Re #32:

* Yes, clubs that accept public funding CAN discriminate on lots of bases, but NOT on sex, race, or sexual orientation. So this endless prattling about the Hasting case being parallel to someone who hates chocolate joining a chocolate-fanciers club, etc., is beside the point.

* If a Christian club that wants to discriminate against homosexuals because it believes that homosexuality goes against...let's call it "God's law" (and not all Christian groups believe this) can get public funds, then a Christian Identity club, which believes that non-white have no souls and should therefore be ineligible to join it should also be able to get public funds.

* This sanctimonious, self-congratulatory distinction between "homosexuality" and "homosexual practice" (in some Christian parlance, the slippery "hating the sin but not the sinner") may fly in theological circles, but not in the law.

* Most of us accept that "sexual inclinations" will be "controlled rigorously" only in very limited aspects: age of consent, conduct in public, etc. Most of us do not accept that our sexual inclinations should be "controlled rigorously" in terms of exactly what we do in the privacy of our bedrooms and with whom we do it. The "controlled rigorously" that some Christians and other religious folk want to apply to homosexuals is that they have no sexual activity at all.

* Sexual orientation has joined--via the Constitution and the aggregate case law that constitutes, de facto, what the Constitution is in practice--sex, race, and national origin as aspects of a person protected from discrimination in the use of public funds. Some Christians and other religious folk may not like this, but unless there's a turnaround in the legal tide, they'll just have to get used to it.

* In "the early years," lots of things--slavery, no votes for women, no popular election of U.S. Senators, etc.--were in practice. Federal funding of churches is one of those things most of us are glad no longer is.

* "It is particularly odd and disturbing to me that someone would suggest that somehow sexual orientation is constitutionally protected in a way that trumps religious belief." Well, the courts have increasingly ruled that, in effect, it is--in the sense that organizations that discriminate against homosexuals can't get public funds. On the other hand, no one says you can't have your own little privately funded club, church, bogus psychological counseling center, etc. that refuses to let homosexuals join.

* "Sexual orientation is nowhere mentioned in the Constitution." Neither is "God" or "Christian[ity]."

* "I just want consistency all around." No, what new_theologian wants is the civil law to enforce a particular religious definition and consequence of homosexuality, i.e., that it's inherently "wrong" and should be subject to civil as well as ecclesiastical penalties. Not many things in this world have gotten better over the past several decades, but the fading of this particular injustice is one of them.

34. navydad - June 30, 2010 at 07:30 pm

Thank goodness there are no theologians on the Supreme Court. New theologian's argument seems to be that prohibiting discrimination is a form of discrimination. And thank goodness for the first clause of the First Amendment.

35. new_theologian - June 30, 2010 at 10:56 pm

It seems that my arguments are misrepresented by my interlocutors. First, I am not arguing in favor of public funding of any organization, much less specifically religious organizations. Can anyone show where I've done so? Second, I am not advocating particular civil penalties for homosexuals. Again, can anyone show where I've done so?

I will stand by, however, the fact that free exercise of religion is specifically named in the Constitution, and thus, should warrant inclusion in any list of protected classes for the purpose of discrimination. I can't help noticing that goxywu does not include it in her list of protected categories when she writes, "sex, race, and national origin as aspects of a person protected from discrimination in the use of public funds." Not religion? That's not what the Constitution says.

Now, as for navydad's comment that I think prohibiting discrimination is a form of discrimination, I have to say that it is sophistical. First, there can be no denying that prefering one group over another, where the two groups contest one another's rights claims, is a form of discrimination. Whether or not it is a "just" or "unjust" form of discrimination depends upon an over-arching value judgment. Now, it has to be admitted that, Constitutionally, religion is explicitly protected from discrimination. Therefore, where a religious belief or practice comes in contest with other interests, it would seem problematic to suppress the interests of the religious group in favor of those of the competing group where the competing group is not also explicitly protected from discrimination in the Constitution. There is an obvious bias here against religion's claim to Constitutional protection, and that bias is driven by a particular value judgment concerning sexual orientation and sexual urges. The reasons for this value judgment are far from obvious and subject to substantive criticism.

36. new_theologian - July 01, 2010 at 01:57 am

Oh, in reading the Hastings case, it is clear that the "all comers" policy applies to every case, just as I had said earlier. That was the reason it was upheld--the question of motivation is not asked. The standard is that no student should have to fund any group that would not admit him or her as a member. The CICC analogy is, therefore, valid. I can accept the ruling, but the policy itself is nonsense. It doesn't matter what the groups are; fill in the blanks as you like and just watch the policy implode.

37. goxewu - July 01, 2010 at 09:25 am

new_theologian keeps dancing around the issue*, complaining that other commenters ignore the nuances of what he/she says, and, essentially, changing the number of angels who can dance on the head of a pin.

* The issue: How far "freedom of religion" can intrude on the civil rights of citizens who don't belong to that religion. In the Hastings case, the particulars are whether a club that accepts public funds discriminate against a gay student because the religion says that the practice of homosexuality contravenes its beliefs. The court ruled that it can't because sexual orientation is an aspect of a person that's protected against discrimination. So the club has two choices: Cease discriminating against gay students, or cease accepting public funds. Reasonable. Fair.

"The standard is that no student should have to fund any group that would not admit him or her as a member." Not really. A chess or chocolate-lovers club can, of course, refuse membership to a particular student who thinks chess is a stupid game or that chocolate is the worst-tasting substance in the world. It just can't discriminate against haters of chess and chocolate because they also happen to be women, minorities, gay, born in a certain country or...members of one religion or another.

The conflict between of "freedom of religion" and civil law is ongoing. Some present and potential issues include: Muslim women wearing costumes that are the equivalent of ski masks and hoodies when they walk into a bank, orthodox Jews holding religious services in homes in areas not zoned for such purposes, anti-abortion Christians who work in pharmacies refusing to dispense morning-after pills, severe corporal punishment for children, polygamy, tax empemptions for religion-run but obvious commercial enterprises, the Catholic Church's desire to "punish" with transfers and slaps on the wrist child molesters in its clergy without involving civil authorities in spite of the fact that child molestation is an especially serious felony, the withholding of conventional medical treatment for seriously ill children by Christian Scientists who believe that only their "practitioners" can cure the disease, etc., etc., etc. Cases involving these particulars do, and will, come to court.

Meanwhile, just as a club for believers in the Christian Identity movement can't discriminate against non-whites because the Christian Identity movement believes that non-whites have no souls, and still get public funds, a Christian club can't discriminate against gays because it believes that gays are violating some sort of "God's law," and still get public funds. Reasonable. Fair.

38. nordicexpat - July 01, 2010 at 10:21 am

I'm getting in late in the game, but . . .

I think people are reading Hastings much more broadly (or perhaps more narrowly) than it is. As far as I know, the argument the law school advanced was that the a group receiving money had to accept all comers. They did not say that the Christian group violated a discrimination clause against gays and lesbians, probably because the law school didn't know whether they could get 5 votes out of the SC with that argument (and they are probably right). So I think new_theologian is right and goxewu is wrong on this issue: the court did not say "sexual orientation is an aspect of a person that's protected against discrimination." It said that a university could have a policy that says groups receiving money needs to allow anyone who wants to join into the club.

I imagine this case will go back to the lower courts and the argument will be made that the law school did not apply this "accept all comers" to all student organizations, but singled out the Christian group and selectively enforced it. I imagine that might even be true: I suspect the law school really does want to have a policy prohibiting discrimination based upon sexual orientation. The problem for them will be that they didn't make this argument before the Court (and, again, I might be wrong on that point).

While I don't agree with it, I do understand new_theologians argument. One could argue that if freedom of association to have any meaning, one should have the freedom not to associate with certain people. People seem to accept that argument in the abstract: even Goxewu makes a version of it in #33. The argument is where to draw the line and under what conditions.

39. navydad - July 01, 2010 at 11:08 am

A theologian accusing someone of sophistry. Now that is truly funny.

40. prje8199 - July 01, 2010 at 11:20 am

Post #10 has put up the best argument and makes it clear that the ruling was just (and I agree) but post #16 has his/her sights set of the reality of the issue. As I see it, this ruling equals the end of "social" organizations on most American campuses. I imagine it will be less than a year before both Muslim and Christian campus missionaries "join" groups like LBGT in order to "cure" or "save" those associated with that orgainzation. How soon before some under-cover clown joins the Student PETA group, volunteers for the snack committee and starts bringing hot dogs, burgers, and lamb kabobs to meetings?

I see it happening and I think it is a bit funny. Democracy, pure democracy is noisy, messy, and disruptive. If you believe in the marketplace of free ideas then you don't belong on a college campus - you belong alone on your own mountain. I love and embrace the power of the individual I just don't see the need to have a club to highlight all of our near meaningless differences. Moreover, I long to see the day when the university returns to the root cause of bettering people through education vice confusing them with some noisy, trend-based "discourse" over issues that have almost no place in the greater society of humankind.

41. new_theologian - July 01, 2010 at 12:15 pm

Goxewu just isn't reading the decision correctly, and is imposing upon the circumstances of the case his or her own desire as to the deciding factors in the case. It turns out the case involved the exclusion of practicing homosexuals from a student organization, but the case simply does not turn on that point. It turns on the fact that the school has a policy requiring that any student organization receiving university funds cannot exclude from its membership any student at the school--a policy that because you pay you get to play. That's all. The university avoids Constitutional sanction precisely because it avoids any examination concerning the ideological/political/religious motives for the exclusion. The policy concerns only the FACT of the exclusion. We can't make this case about any other issue.

Now, if anyone can point to where I've mentioned angels on the head of a pin, I'd like to see it. I'm making actual arguments about actual issues. Can you show either that one or more of my premises is faulty, or that the form of my argument is invalid? If you can't do that, then you've got nothing, whether I'm a theologian or not. And before we start attacking Christianity, note that my argument doesn't rest on Christianity. Correctly identify the premises and the structure of the argument, and go from there. Here's a hint: I'm NOT arguing that the CLS should receive university funds. I'm arguing that if we consistently implement a genuine "all comers" policy AS ARTICULUATED IN THIS CASE for student funding, the policy will undermine the reason-for-being of student organizations, period--in practice.

And, navydad, nice ad hominem circumstantial in #39. That's not an argument, though. It's sophistry.

42. navydad - July 01, 2010 at 01:31 pm

"And, navydad, nice ad hominem circumstantial in #39. That's not an argument, though. It's sophistry."

I would say thank you, except that my comment was not meant as an argument. It was an observation.

43. jc1968 - July 01, 2010 at 01:32 pm

Analogy, conjecture, and personal bias aside....this is fairly simple if looked at with a very wide lense.

National Fraternities (TKE, Pikes, Sigma Pi, etc.) and Sororities (Phi Sigma Sigma, Delta Zeta, Sigma Kappa, etc.) are not allowed access to university funds (as supplied through student fees) because those organizations are invite only (not open to 'all comers'). As a member of a fraternity and now sit on the alumni board of the fraternity, that is perfectly acceptable and on point.

The other side of the coin are groups that do receive funds from the university/college that derive from the students attending the institution. Those groups should be obligated to accept 'all comers' because they derive their funds not only from those who agree with their specific point of view, but from all students in attendance at the institution.

The Hastings case upheld the institutional argument that a group requesting funds should be open to 'all comers' and based on the above paragraph is a decision for which I support.

If the CLS group wished to have a membership that was limited based upon their chosen philosophy, then they should not be allowed access to institutioanl funding. However, they should (like fraternities and sororities) be officially recognized as a group with the ability to make use of campus facilities (like fraternities and sororities).

Fairly simple, but as is typical in a great number of comment sections, personal bias and point of view makes a simple case something that it is not.

Unfortunately, the decision will result in more trouble than what it may be worth. I do think this will open the door for even greater issues of student groups with the 'all comers' label attached. Yes, this will allow opposing groups to make attempts at skewing other groups. We see this in states where individuals will register as a voter for the party they oppose in attempts to influence primary elections (I know, it isn't like that in all states).

While you may think I am crying wolf, it will come to occur and it will again go to court wasting too much institutional money on something so trivial that it boggles the mind.

44. goxewu - July 01, 2010 at 08:41 pm

Re #41:

new_theologian is nominally correct. Any student at Hastings can join any club at Hastings--any club, that is, which is officially recognized as being officially affiliated with the law school.

But, as the Supreme Court doesn't rule on hypotheticals or in a vacuum, the Hastings decision came from a suit brought by the Christian Law Society as plaintiffs, against the law school as defendants because it thought it was being discriminated against because it couldn't discriminate a gay student who wanted to join because the CLS said that full-fledged members (its meetings were open to everybody) had to subscribed to a statement that, essentially, homosexual sex was wrong and would not be practiced by them. Homosexuality had a lot to do with the CLS's suit, and has a lot to do with comments on this thread inveighing against the Court's decision.

The Court said in its decision that the "advisability" of the Hastings "all-comers" policy did not affect its permissibility, i.e., that the right of those who pay to play trumps the (remote, really) possibility that agent-provocateurs will bring down a group by, oh, flooding the CLS with gay or non-Christian members. The decision noted that there's no history at all of such hijackings of student organizations at Hastings. Also, the CLS, while being denied official recognition, is reported to have held functions and used Hastings facilities without any trouble. #43 seems to me to have it about right.

As to calculating the number of angels who can dance on the head of a pin--I've always thought that wild card is what distinguishes theologians from anthropologists, historians and philosophers, i.e., it's part of the job description.

45. goxewu - July 01, 2010 at 08:44 pm


#43 has it about right save for the predicted avalanche of lawsuits. I figure--OK, a little of it is hope--that people have better sense than to keep suing in the hope that they can get/keep public funding to practice discrimination.

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