When I first wrote about the case of the Christian Legal Society at the University of California’s Hastings College of Law, I offered that here was an issue that related to LGBT rights, religion, and higher education, so it was a quintessential topic for my blog. I followed up in April when the case, Christian Legal Society v. Martinez, went to the Supreme Court. Now that the Supreme Court has made a decision, it is time to revisit this case.
Here’s a brief recap of the situation: The University of California has a nondiscrimination policy. If you want to be recognized as a student group (i.e. use the university’s name, access funding for student groups, reserve campus spaces, etc.), you must abide by the nondiscrimination policy. The Christian Legal Society at Hastings College of Law wanted to be recognized as a student group but still be allowed to discriminate based on sexual orientation (because they’re holier than us gays). The college said no, the group sued, and here we are today.
The Supreme Court ruled 5-4 in favor of the university (read the decision in PDF here, news links below). Writing for the majority, Justice Ginsberg argues that “the Christian group’s First Amendment rights of association, free speech and free exercise were not violated by the college’s nondiscrimination policy.” After all, the group could still exist and meet on campus, just not enjoy the privileges of being a recognized group.
The decision points out that “Hastings’ all-comers policy is viewpoint neutral” (p. 5), meaning that it does not target religious groups. It requires “that all student groups accept all comers.” Keep in mind that this applies to whether a student can “participate, become a member, or seek leadership positions in the organization.” CLS (in all its chapters throughout the country) requires that members and officers sign a “Statement of Faith,” which of course includes that “sexual activity should not occur outside of marriage between a man and a woman,” so that the group can automatically deny membership to anyone who engages in homosexual conduct. They don’t want us gays taking over their group.
As I wrote in my original post, it’s important to remember that the privileges enjoyed by “Registered Student Organizations” (RSOs) are funded by students. On most campuses there is an activity fee, as was the case at Hastings. So CLS was demanding that they be able to use money supplied by all students to conduct an organization not open to all students. It seems to me they are a pretty insecure group if they are really worried they’ll be infiltrated. (Note: “CLS points to no history or prospect of RSO-hijackings at Hastings” (p.32).)
Highlights from the majority opinion
I love this line from the majority opinion (pp. 17-18):
We reject CLS’s unseemly attempt to escape from the stipulation and shift its target to Hastings’ policy as written. This opinion,therefore, considers only whether conditioning access to a student-organization forum on compliance with an all-comers policy violates the Constitution.
That sounds kind of obvious, but not when you see what Justice Alito wrote in the dissent. We’ll get to that in a moment.
As a student affairs professional, I appreciated this line (p. 26):
A college’s commission—and its concomitant license to choose among pedagogical approaches—is not confined to the classroom, for extracurricular programs are, today, essential parts of the educational process.
This hypothetical helps explain the complexity of the university’s dilemma:
How should the Law School go about determining whether a student organization cloaked prohibited status exclusion in belief-based garb? If a hypothetical Male-Superiority Club barred a female student from running for its presidency, for example, how could the Law School tell whether the group rejected her bid because of her sex or because, by seeking to lead the club, she manifested a lack of belief in its fundamental philosophy?
This is important, because the decision here relies upon Lawrence v. Texas, which stated that by criminalizing homosexual conduct, it “is an invitation to subject homosexual persons to discrimination” (p. 29). Using behavior to discriminate using sexual orientation is exactly what CLS was trying to do.
The decision also reminds us that technology is changing the way groups function on our campuses (p. 30):
Although CLS could not take advantage of RSO-specific methods of communication. . .the advent of electronic media and social-networking sites reduces the importance of those channels.
And in conclusion:
For the foregoing reasons, we affirm the Court of Appeals’ ruling that the all-comers policy is constitutional and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Highlights from Justice Stevens’ concurring opinion
Justice Stevens wrote a concurring opinion defending nondiscrimination policies (p. 39). He points out that CLS’s reasoning that the nondiscrimination policy in fact discriminates based on religion is counterintuitive and unsound (p. 40):
Although the First Amendment may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them.
He goes on to point out (pp. 40-41):
Regardless of whether they are the product of secular or spiritual feeling, hateful or benign motives, all acts of religious discrimination are equally covered. The discriminator’s beliefs are simply irrelevant.
As someone committed to the learning environment of universities, I appreciate Justice Stevens’ words about what we should be able to expect from higher education (p. 43):
The campus is, in fact, a world apart from the public square in numerous respects, and religious organizations, as well as all other organizations, must abide by certain norms of conduct when they enter an academic community. Public universities serve a distinctive role in a modern democratic society. Like all specialized government entities, they must make countless decisions about how to allocate resources in pursuit of their role. Some of those decisions will be controversial; many will have differential effects across populations; virtually all will entail value judgments of some kind. As a general matter, courts should respect universities’ judgments and let them manage their own affairs.
Highlights from Justice Kennedy’s concurring opinion
In another concurring opinion, Justice Kennedy condemns the use of loyalty oaths (p. 48):
The school’s objectives thus might not be well served if, as a condition to membership or participation in a group, students were required to avow particular personal beliefs or to disclose private, off-campus behavior. Students whose views are in the minority at the school would likely fare worse in that regime. Indeed, were those sorts of requirements to become prevalent, it might undermine the principle that in a university community—and in a law school community specifically—speech is deemed persuasive based on its substance, not the identity of the speaker. The era of loyalty oaths is behind us.
Highlights from the dissent
In their dissent, Justices Alito, Scalia, Thomas and Chief Justice Roberts seem to contend that free speech includes an assumption of endorsement. The opening paragraph reveals this bizarre assumption (p. 49, annotations omitted):
The proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.
Really? There is no freedom for expression when not endorsed by a university?
In fact, the dissent seems pissed and implies that nondiscrimination policies are “a handy weapon for suppressing the speech of unpopular groups” (p. 50). Did they pay attention? That’s not what the policies do.
I’m a bit confused as I read the dissent, because it attempts to distinguish between “not discriminating” and “accepting all comers.” I don’t understand the difference between these two (at least in regards to this case), but apparently it matters (pp. 53-54) that Hastings did not use the latter interpretation of the policy at first. From p. 55:
Hastings’ effort to portray the accept-all-comers policy as merely an interpretation of the Nondiscrimination Policy runs into obvious difficulties. First, the two policies are simply not the same: The Nondiscrimination Policy proscribes discrimination on a limited number of specified grounds, while the accept-all-comers policy outlaws all selectivity. Second, the Nondiscrimination Policy applies to everything that Hastings does, and the law school does not follow an accept-all-comers policy in activities such as admitting students and hiring faculty.
Does it matter? Regardless of the interpretation, the CLS was in violation of the policy.
The dissent points out other student groups with “requirements” for membership, but none that amount to a signed statement. They refer more to expectation of mindset, not requirement of action.
The Director of Student Services, Judy Hansen Chapman, seems to very much be on target for executing her responsibilities of informing the group their bylaws violated the policy. She also is apparently responsible for tardy responses when CLS, as a group then not recognized as an RSO, tried to reserve spaces for events and speakers. Alito paints a picture of sympathy for CLS (p. 60):
And since one of CLS’s principal claims is that it was subjected to discrimination based on its viewpoint, the majority’s emphasis on CLS’s ability to endure that discrimination—by using private facilities and means of communication—is quite amazing.
That’s right. The dissent argues that CLS was discriminated against.
Ignoring the distinction of the act of signing a statement of faith, Alito condemns Hastings for viewpoint discrimination, because apparently “CLS was required to admit avowed atheists” (p. 68). Really? They were required to admit? There were atheists demanding to join the Christian Legal Society? That seems a bit delusional, Justice Alito, even for you. And furthermore, why shouldn’t atheists be allowed to join the Christian Legal Society if they want to? Surely, an avowed atheist might have much to learn by participating in a group like CLS, even if they disagree with any of the group’s beliefs.
It kind of makes me think of all those Catholics who are okay with gays, okay with birth control, okay with abortions, etc. By continuing to participate in the Catholic Church, would Justice Alito suggest that they are, in fact, infringing on the Catholic Church’s right to exclude?
Dare I say it, the dissent seems to argue for special privileges for religious groups, suggesting that religious groups should be allowed to discriminate based on beliefs while it’s okay if other groups don’t (p. 70, annotations omitted):
It bears emphasis that permitting religious groups to limit membership to those who share the groups’ beliefs would not have the effect of allowing other groups to discriminate on the basis of religion. It would not mean, for example, that fraternities or sororities could exclude students on that basis. As our cases have recognized, the right of expressive association permits a group to exclude an applicant for membership only if the admission of that person would “affec[t] in a significant way the group’s ability to advocate public or private viewpoints.” Groups that do not engage in expressive association have no such right. Similarly, groups that are dedicated to expressing a viewpoint on a secular topic (for example, a political or ideological viewpoint) would have no basis for limiting membership based on religion because the presence of members with diverse religious beliefs would have no effect on the group’s ability to express its views. But for religious groups, the situation is very different. This point was put well by a coalition of Muslim, Christian, Jewish, and Sikh groups: “Of course there is a strong interest in prohibiting religious discrimination where religion is irrelevant. But it is fundamentally confused to apply a rule against religious discrimination to a religious association.”
The dissent does not specify whether the justices would support other forms of discrimination. An example referred to throughout the decisions is a Democratic group admitting Republicans. Surely, Republicans would “affect in a significant way the group’s ability to advocate public or private viewpoints.” This seems to be a blatant attempt at reinforcing religious privilege, and it is not surprising coming from these justices.
Alito also quite casually ignores the precedent of Lawrence v. Texas by suggesting that CLS’s discrimination against homosexual students just reflects a viewpoint on sexual morality.
I really struggle to read the dissent, as it ignores the unique environment (and constituency) of a college campus, as well as any notion of student rights within such an environment. It goes on to suggest that the standard set forth by this decision would allow public universities to “impose” religious requirements “on students who wish to participate in a forum that is designed to foster the expression of diverse viewpoints” (p. 75), again ignoring the original issue that it was CLS that imposed a religious test, not Hastings.
Regretfully, the dissent ends with this platitude for subversiveness (p. 85, annotations omitted):
I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country. Our First Amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Even if the United States is the only Nation that shares this commitment to the same extent, I would not change our law to conform to the international norm. I fear that the Court’s decision marks a turn in that direction. Even those who find CLS’s views objectionable should be concerned about the way the group has been treated—by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration.
Awww, poor Christian Legal Society. They weren’t allowed to use public funds to discriminate. How sad for our country.
If you’ve read my whole post thus far but still want other perspectives on the case, check out AP, Inside Higher Ed, The Advocate, or Americans United for Separation of Church and State.
Despite the disappointing language in the dissent, I’m quite proud of our Supreme Court for today’s decision. It ensures that higher education continues to be an open place for all people to exchange their ideas.