Washington
The U.S. Supreme Court announced today that it had agreed to decide whether a California law school can legally deny recognition to a Christian students' group because it bars gay and lesbian members for religious reasons.
In agreeing to weigh in on a lawsuit pitting the Christian Legal Society against the University of California's Hastings College of Law, the Supreme Court appears poised to offer the nation's colleges eagerly awaited guidance on legal questions that they have found increasingly difficult to answer as a result of conflicting lower court rulings.
Although the U.S. Court of Appeals for the Ninth Circuit upheld the Hastings law school's decision to deny recognition to the group under its nondiscrimination policy, the U.S. Court of Appeals for the Seventh Circuit blocked Southern Illinois University at Carbondale from applying a similar policy to a Christian Legal Society chapter in 2006, saying the university's policy probably infringed on the group's "freedom of expressive association."
Southern Illinois settled the lawsuit by agreeing to recognize the student group before the Seventh Circuit could issue a final ruling in the dispute, and other colleges, including Arizona State University and the University of Toledo, have similarly agreed to accommodate Christian Legal Society chapters to extract themselves from litigation. A U.S. District Court judge, relying heavily on the Ninth Circuit's decision, held in May that the University of Montana had not violated the rights of a Christian Legal Society chapter there by refusing to give it funds from the university's Student Bar Association.
Conflicting Rulings in the Lower Courts
In its brief asking the Supreme Court to take up the case, the Christian Legal Society said the decision by the Ninth Circuit, which covers California, Montana, and seven other Western states, "squarely conflicts" with the ruling by the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin.
The brief argued that the Ninth Circuit's ruling conflicts with two other lines of Supreme Court precedents: those allowing organizations such as the Boy Scouts to deny membership and leadership roles to people who could adversely affect their ability to promote their message; and those, such as a 1995 ruling involving the University of Virginia, requiring colleges to recognize religious groups and other student organizations under the First Amendment's protection of free speech and free association.
"The Ninth Circuit has given public university officials the green light to derecognize religious student groups simply because they require their officers and voting members to agree with their core religious beliefs," the brief said. Because of its ruling, national organizations such as the Christian Legal Society, which has chapters at more than 70 law schools, "cannot maintain uniform national membership criteria for all their chapters."
Lawyers for the Hastings College of Law had argued in a brief urging the Supreme Court not to take up the case that the Southern Illinois case had not progressed far enough for the Seventh and Ninth Circuits to be considered in disagreement. It also argued that the Supreme Court precedents requiring colleges to recognize religious organizations and other student groups had held that the colleges needed to treat all groups equally, but had not required colleges to give some organizations the exemptions from campus policies of the sort apparently sought by the Christian Legal Society at Hastings.
In a statement heralding the Supreme Court's decision to take up the case, Kim Colby, senior counsel for the Christian Legal Society's advocacy division, said, "Public universities shouldn't single out Christian student groups for discrimination."
Gregory S. Baylor, a laywer for the Alliance Defense Fund, a Christian legal-advocacy group assisting the legal society in the case, said, "It's completely unreasonable—and unconstitutional—for a public university to disrupt the purposes of private student groups by forcing them to accept as members and officers those who oppose the very ideas they advocate."
On the other side of the dispute, Ethan P. Schulman, a lawyer representing the law school, said the bottom-line question posed by the case "is whether public universities and law schools have a constitutional obligation to subsidize discriminatory organizations on campus." He added: "The Christian Legal Society is seeking a ruling that would treat religious groups differently than all other student groups by exempting them from nondiscrimination and open-membership policies."
Comments
1. _perplexed_ - December 07, 2009 at 03:58 pm
From the website of Christian Legal Society
(http://www.clsnet.org/society/about-cls/statement-faith), it is clear that it is not only gays and lesbians who are barred from membership, but anyone unwilling to endorse a particular Christian perspective is also ineligible. Why would such a student group need or want recognition from a University-- unless they want University resources?
2. jesor - December 07, 2009 at 03:58 pm
The briefs on this one will be interesting. My guess is that the main precedent will be the one under Southworth v. Wisconsin that mandated that schools had to be viewpoint neutral in the distribution of student fees, however that case was based on the premise that a school is a "marketplace of ideas" which is very different than being in the full public square. One could argue that student organizations that keep certain people out based on viewpoint are undermining that very marketplace by not allowing students to be exposed to certain ideas. It is entirely possible that we could end up with a "split the baby in two" sort of situation where campus recognized chapters of national organizations would have to comply with campus policies, but the national organizations themselves would not.
3. 22228715 - December 07, 2009 at 05:11 pm
Commenter 1: You got it! They want student fee money, university meeting space for free, university advertising channels for free, etc. The student fee process is an agreement between the student body and student groups that the former will pitch in money if the latter will keep membership open to all who pay so that everyone can learn and grow.
4. wwsword - December 07, 2009 at 05:16 pm
If the First Amendment of our Bill of Rights matters at all, then this is an open and shut case. Congress shall make no law respecting the establishment of religion or abridging the free exercise thereof (or something to this effect). A public institution denying recognition to a university club that discriminates on the basis of religion does not amount to the abridgement of the free exercise of religion; it would be absurd to suppose that the free exercise of religion involves discrimination against others who do not subscribe to that particular religious doctrine. If a religious doctrine advocates the position that every person they find acceptable must be converted to their religion, then does the free exercise of that religion mean that I have to tolerate their conversion efforts assuming they find me an acceptable target? If a religious group holds that it is proper to inconvenience me in any way, against my will, me, a citizen in a free democratic republic, as part of its religious practice, I am supposed to tolerate this? And so on. The answer is obvious. Of course not. You are free to practice your religion as long as your actions do not interfere with my right not to participate in your religious practices. Put another way, any public institution recognizing a university club that discriminates on the basis of religion would be respecting the establishment of religion and this would be outrageously unconstitutional.
5. jffoster - December 07, 2009 at 06:55 pm
Wwsword,
Greater legal writings than your amateurish foray into the tensions between the establishment clause and the free exercise clause have pondered this topic. And now the only opinions that will matter are those of the nine justices. At least theirs will probably be coherent.
6. vyellen - December 08, 2009 at 08:18 am
It would be interesting as to how much Hastings and others are spending of hard to find fund in this day and age v. the amount the organization is requesting from student funds. In any other legal process this would have been settled on a cost benefit analysis. Are there no Gay or Black legal student groups at Hastings that receive funding???
7. warrenpiece - December 08, 2009 at 11:25 am
In my time at graduate school, there were interest groups based on politics. We had Republican, Democrat, communist and socialist groups funded with university meeting space and offices. One could argue that each were open to all comers; but we all know the reality.
In the same way, Christian organizations can merely take belief requirements “off the books” while determining membership and the election of officers by speech and conduct. Those who do not give assent to "orthodox" Christian doctrine are easily discovered in a short period of time just by casual conversation. (There is a sharp difference in how Christians talk and how non-Christians think they talk.) Any attempt by the university to monitor the behavior of those in the organization will expose the university to discrimination suits it can ill afford and endure.
The facts on the ground are that, unless a group is allowed to come together into a formal structure, their voice is seriously diluted if not eliminated in the "marketplace of ideas". The effort to "disestablish" Christian organizations among other campus organizations is aimed at precisely that result.
8. stannadel - December 08, 2009 at 11:31 am
This story plays down the issue of religious discrimination, but it was well within living memory that many US fraternities refused membership to Jews and Blacks--and it wasn't a small matter as they had university subsidized better living conditions and membership was often important for later professional advancement. The practice was ruled illegal, but could well make a comeback if the US Supreme Court rules for the "Christians" here. This is a threat to longstanding gains by all sorts of minorities.
9. odulibrary - December 08, 2009 at 04:32 pm
Question - does a sorority have the right to exclude a male because he's male? Does a fraternity have the right to exclude a female because she's female? There are no campus groups that I know of that allow anyone and everyone to join. They all have criteria of one sort or another. That, by literal definition, is descriminatory. I find it greatly ironic that a ruling to "...deny recognition to the group under its nondiscrimination policy..." was upheld. Particularly from a law school. In essence the argument is "we choose to discriminate against this group using our nondiscrimination policy." Hmmm, am I the only one who finds that problematic?
Situations such as this also raise a significant question of intent. Why would someone wish to join a group, any group, that clearly does not desire their presence?
10. _perplexed_ - December 08, 2009 at 06:19 pm
Re odulibrary's comment on fraternities and sororities: On the campuses where I have knowledge, these groups do not receive campus funding from student activity fees...they charge their members. I would guess that the Christian Legal Society would not be running into problems if they charged their members. Instead they are apparently seeking to have other students pay for the Society, including those who are specificlly excluded from membership.
11. chicagotim - December 09, 2009 at 12:07 pm
My bet is on the S.C. supporting schools' rights to decide who gets student funding, based on institutional values and community standards -- including requiring non-discrimination compliance if they see fit to do so. The S.C. will balance this by saying to student groups and the free association/religion contingent, "You want to be an organization, made up however you see fit, go for it. You can exist, meet, recruit, whatever, using publicly available resources; however, know that you won't qualify for funding from some schools. If you want funding/resources/etc., get on board with the funding requirements as determined by the institution." I doubt the S.C. will set themselves up to be dictating what universities must/must not hold as standards for how they allocate their own (and their students') resources. They have refused to so meddle with higher education institutions in the past and I would hope that they won't start now.
12. jesor - December 09, 2009 at 12:39 pm
Chicago,
You've hit the crux of the issue. Any group is allowed to go to the "public square" and organize, no matter how offensive anyone finds it. The college campus is a special type of forum in that students are forced to pay fees that then go to promote a dialogue on campus which is conducted by the registered student organizations. While any group can come to most college campuses and protest or demonstrate in public spaces, only certain groups can receive campus resources from manditory fees. Those groups in my opinion should be held do a different standard in that the rights of individual students to be fully exposed to their ideas takes precedence over the group's right to free association. If every campus group decided that it could exclude large portions of the campus, then the marketplace completely falls apart since there is no marketplace, just a bunch of boarded up stores with shopkeepers keeping everyone out. As for the religion argument, that's a red herring. The school is not saying that the group is religious, therefore it can't be on campus. The school is saying "if you want to be recognized on campus, regardless of what your viewpoint is, you have to let everyone in the door". LGBT student organizations run into this problem too since they wish to create a confidential environment, but they must allow heterosexual individuals into their meetings as well. In my experience, most of the feared issues of organization takeover and disruption are generally resolved through rules of civil conduct that are viewpoint neutral (i.e. you wouldn't be allowed to shout down the student org president when he or she is leading a prayer or conducting a meeting).
13. zkester - December 23, 2009 at 01:22 pm
Dear stannadel,
The Supreme Court is protective of "expressive association." This means that a group that wants to discriminate on some basis must have some reason to do so that is in addition to and seperate from the identifiers of the group. For example, all-white student groups cannot exclude non-whites. But a Jewish student group can exclude those that do not hold the same vision for advancing Jewish causes. If all people who hold the "acceptable" beliefs happen to be Jewish, that is just an acceptable coincidence.
Thus, the argument here is not that the CLS can exclude non-Christians, but that the CLS can exclude those who do not hold the same views as related to ideological or political items.
14. zkester - December 23, 2009 at 01:24 pm
Dear Chicago and jessor,
There is a VERY good article about whether the Supreme Court will decide this issue on an all-or-nothing basis. That is, whether SCOTUS will split the baby and say that you can be a student group but not get funding. Given the state of current case law and principles of adjudication, it is probably unlikely. See http://writ.lp.findlaw.com/dorf/20091214.html.
15. zkester - December 23, 2009 at 01:39 pm
Dear warrenpiece,
During the course of the litigation UC - Hastings changed their position from selective enforcement of an anti-discrimination policy against a prospective religious group to one of broad openness required by all gruops to encourage the free exchange of ideas. The problem with this position is that it is directly counter to Supreme Court precedent that groups can choose their members based on the member's agreement with ideology. For example, in DEMOCRATIC PARTY v. WISCONSIN (1981) the Supreme Court held that Wisconsin cannot compell the party to violate the Party's rules in performing political functions. UC Hastings admitted during this case that the College Democrats would be forced to allow College Republicans into membership and leadership under this "openness" policy, even though UC Hastings cannot violate the College Dem's rules when it performs internal political functions, such as seating its leadership.
Also, you state that these cases are a huge waste of time and money on a cost-basis calculation. The reality is that it is not about the money (indeed, a Supreme Court appeal costs between $500,000 and $1.5M, on average). Instead, this is about the ability of a group of students to access the same pot of money, derived from student fees, on the same conditions as everyone else. The Jewish groups can discriminate on the basis of "expressive association," as can the Black Student Associations and the College Republicans. They all get funding too. But not the Christians? Really?
16. amnirov - December 24, 2009 at 02:12 pm
No religious group should be recognized anywhere by anything for any reason. It's all made up idiocy and we'll all be so much better off once the last religious structure is bulldozed.