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Treatment of Christian campus group doesn’t pass smell test

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Charles C. Haynes
July 3, 2010

When the U.S. Supreme Court decided Christian Legal Society v. Martinez on June 28, was it a victory for nondiscrimination, as one side claims—or an example of religious discrimination, as the other side argues?


“Discrimination,” it seems, is in the eyes of the beholder.


In this case, the eyes that count belong to the five justices who sided with the University of California Hastings College of the Law ruling that requiring recognized student groups to accept any student as a member or leader—dubbed the “all-comers” policy—is “a reasonable, viewpoint neutral condition.”


Writing for the majority, Justice Ruth Bader Ginsburg rejected the Christian Legal Society’s argument that denial of recognition violated its rights to freedom of association, free speech and religious liberty. Because any student group seeking recognition must allow anyone to join, she argues, CLS was not targeted because of its religious convictions—but was simply treated like everyone else.


In a strongly worded dissent, Justice Samuel Alito charged that the Hastings “all-comers” policy was nothing more than a ruse designed to exclude a religious group with politically incorrect views. The original reason CLS was denied recognition, Alito contended, was that the group violated the law school’s policy prohibiting discrimination on the basis of religion and sexual orientation by barring non-Christians and gays and lesbians from membership.


Alito is convinced the law school changed tactics out of concern that the Court might strike down a nondiscrimination policy that bars religious groups from selecting members on the basis of religious convictions but allows other groups to select members according to their beliefs or ideals. Thus the “all-comers” policy—which Alito argues was invented after CLS was denied recognition—was put forward to avoid the constitutional issues raised by the nondiscrimination policy.


Alito may be right. Something about the way CLS was treated doesn’t pass the smell test. When CLS applied for recognition, there were some 60 recognized student groups at Hastings with a wide range of political, social and religious viewpoints. CLS was the only student group denied recognition (which means no access to student activity-fee funding, school media or other benefits).


Justice Alito cited evidence that before this conflict, other groups were allowed to select officers and members dedicated to a particular set of ideals or beliefs. In order to address this concern, the Court is sending the case back to the lower court to determine whether Hastings selectively enforced its “all-comers” policy.


Though it’s commendable for Hastings to promote nondiscrimination, a public university must also uphold the First Amendment. Surely the school’s commitment to nondiscrimination can be preserved without excluding from recognition student groups with faith requirements for membership and conservative religious views about sexuality.


The Court majority noted that CLS can still exist on campus and doesn’t really need the benefits of recognition to survive. In his concurring opinion, Justice John Paul Stevens said society should “tolerate” such groups, but the school “need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.”


The First Amendment, however, requires government, including public universities, to protect free exercise of religion, not marginalize religious groups by offering mere toleration. As for giving an “imprimatur,” Hastings has been content for years to recognize an extraordinary variety of student groups—pro-life, pro-choice, animal rights, feminist, etc.—without raising any alarm that the message of such groups would be confused with the official position of the law school.


By closing the forum to CLS because it requires members to affirm core religious beliefs, Hastings discriminates against religious groups in the name of promoting nondiscrimination. As the dissent pointed out (quoting the Becket Fund for Religious Liberty’s brief), “it is fundamentally confused to apply a rule against religious discrimination to a religious association.”


Beyond the setback for religious freedom, the Court’s decision is a body-blow to freedom of association. Public universities around the nation will likely rush to draft their own version of the “all-comers” policy, leaving student groups organized around shared beliefs little choice but to accept members and leaders who reject those beliefs—or lose access to benefits.


As Alito put it, the decision “arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups—groups to which, as Hastings candidly puts it, these institutions ‘do not wish to … lend their name(s).’”


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

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