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At the high court, balancing religious freedom and nondiscrimination

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Charles C. Haynes
April 24, 2010

On April 19, the U.S. Supreme Court heard oral arguments in Christian Legal Society v. Martinez—setting the stage for what could be a landmark decision further defining the extent to which religious groups have a right to be exempt from government nondiscrimination policies.


The case arose in 2004 when a chapter of the Christian Legal Society tried to become a registered student organization at the University of California’s Hastings College of the Law. Although CLS was allowed to meet on campus, officially recognized groups receive a variety of benefits, including use of the school name, access to school media and eligibility for student activity-fee funding.


Hastings denied CLS recognition on the grounds that the group violates the school’s policy prohibiting discrimination on the basis of religion and sexual orientation by barring non-Christians and noncelibate gays and lesbians from becoming voting members or leaders. CLS opens its meetings and activities to all students, but only those who agree to its statement of faith can vote and serve as officers.


CLS sued, charging that Hastings had violated its rights of free speech, religious liberty and freedom of association. After lower courts ruled in favor of the law school, the Supreme Court agreed to hear the CLS appeal.


At issue in the case is whether a public institution can withhold official recognition and funding from a religiously based student group that requires its officers and voting members to adhere to a code of conduct and core religious beliefs.


During oral argument, several justices focused on sorting out the dispute between Hastings and CLS over what the school’s policy actually means in practice. Must all recognized student groups allow any student to join, vote and serve as an officer (the so-called “all-comers” policy), as Hastings claims? Or have some student groups been allowed to reject students who don’t share the group’s values, as CLS contends?


If the latter is true, then the Court could well decide that Hastings has practiced viewpoint discrimination by imposing on CLS a requirement of accepting all students as voting members and officers while permitting other recognized student groups to limit voting membership and officers to students who agree with the group’s beliefs.


But even if every recognized student organization is truly open to all (raising the specter of Democrats taking over the Republican club or global-warming skeptics running the environmental club), CLS argues that it is still a violation of the First Amendment to deny religious groups freedom of association as a condition for participating in a free-speech forum.


Hastings replies that a public educational institution has a strong interest in promoting nondiscrimination and, in furtherance of that goal, it is reasonable to recognize only those student groups that agree to admit all comers as voting members and leaders.


When two worthy claims collide—a public university’s commitment to nondiscrimination vs. a religious group’s need to control its own message and membership—the case is close and difficult. That’s why the justices appeared to be sharply divided during oral argument and will no doubt remain divided when they decide the issue this summer.


Although preventing discrimination is laudable, I’m troubled when any government entity creates a public forum for speech that is closed to some expressions of religious speech. There’s a contradiction between the law school’s stated aim to encourage diverse viewpoints and a policy that has the effect of excluding groups with deeply held religious convictions.


True, CLS can still meet on campus—but only at the sufferance of the administration and with limited access to students. Ironically, by denying recognition to religious groups with a faith requirement for voting membership, the university discriminates against such groups in the name of advancing nondiscrimination.


In the marketplace of ideas—something every public university should encourage—all student groups should have a right to form around shared beliefs. When this right is abridged, the marketplace becomes an echo chamber for officially acceptable ideas.


Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: firstamendmentcenter.org. E-mail: chaynes@freedomforum.org.

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