This commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle Bulletin.
June 28th, 2010
From the Chronicle
An ideologically split Supreme Court ruled Monday that a law school can legally deny recognition to a Christian student group that won’t let gays join, with one justice saying that the First Amendment does not require a public university to validate or support the group’s “discriminatory practices.”
The court turned away an appeal from the Christian Legal Society, which sued to get funding and recognition from the University of California’s Hastings College of the Law. The CLS requires that voting members sign a statement of faith and regards “unrepentant participation in or advocacy of a sexually immoral lifestyle” as being inconsistent with that faith.
I have mixed feelings about this decision, partly because the SCOTUS agreed with the Ninth Circuit that
The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.
In reading the decision, we must keep in mind that this is not a ruling on CLS’ policies, but on whether Hastings’ policies are constitutional.
On the one hand, I strongly object to the gay students at Hastings having to pay student fees which are in turn funneled to an organization that excludes them from membership. I am troubled by the growing sense of entitlement which many anti-gay religious groups seem to be adopting from which they demand that society not only follow the rules of their sect but be required to fund them as well.
And this decision confirms the right of a school – even a public school – to establish and uphold non-discrimination policies. An opposite ruling might lead to assumptions that schools cannot make any restrictions on anti-gay discrimination.
But, on the other hand, I fear that broad interpretation may lead to an inability for any organization to control its own identity.
Would, for example, the Clara Foltz Feminist Association be subject to a take-over by religious conservatives who can then vote that the club take positions which oppose reproductive rights and assert that a woman is to be subject to her husband? Could the Hastings Jewish Law Students Association become the missionary arm of Jews for Jesus – or of the Scientologists, for that matter? Can the new motto of the Environmental Law Society become “Drill, baby, drill”.
While this may seem unlikely, it is not unheard-of for a student organization to be hijacked for petty school politics, or even as a lark. The court, however, did not think that such concerns were reasonable.
CLS also assails the reasonableness of the all-comers policy in light of the RSO forum’s function by forecasting that the policy will facilitate hostile takeovers; if organizations must open their arms to all, CLS contends, saboteurs will infiltrate groups to subvert their mission and message. This supposition strikes us as more hypothetical than real.
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. And if a rogue
student intent on sabotaging an organization’s objectives nevertheless attempted a takeover, the members of that group would not likely elect her as an officer.
I have personal experience which contradicts the court’s assumption. And Justice Alito’s dissent does not find the idea to be nonsensical.
But from a practical perspective, the greatest impact of this decision will be limited to those religious campus organizations who eject, reject, or limit gay students. The national Christian Legal Society will have to choose to go off-campus at many law schools (those with non-discrimination policies) or to revise its policies.
But other organizations may be immediately impacted as well, if to a lesser extent. As I recall, my fraternity required that its members believe in God, though that was interpreted broadly, could be “acknowledged symbolically”, and seemed to have no measurable influence on daily life. But it would seem that this “religious belief” requirement could also be a reason for exclusion of this group from meeting on campus or having recognition of any form.
Although in minority, Alito argued that a policy demanding that all organizations ‘accept all comers’ (whether or not selectively enforced) places a great burden on those who meet based on commonly shared religious beliefs, regardless of where they exist on the religious spectrum.
There are religious groups that cannot in good conscience agree in their bylaws that they will admit persons who do not share their faith, and for these groups, the consequence of an accept-all-comers policy is marginalization.
But, other than its immediate impact on this one Christian group and other similar groups, the court’s decision may also tell us a few more things than simply what is allowable school policy. And while I have some concerns about the court’s interpretation of freedom of speech and association, they are countered by concerns about compulsory fees being withheld and distributed to organizations that some students cannot join. So, for me, the most interesting aspects of this case can be found in the way in which justices view gay people.
1. This decision may give us clues as to whether the court is sympathetic to religious exclusion of gay people from society. In this match up of non-discrimination policies v. the religious liberty to exclude gay people, the court chose not to let religious belief trump orientation.
2. The case was closely decided, 5-4. Justice Ginsberg wrote the decision and was joined by Justices Stevens, Kennedy, Breyer, and Sotomayor. The dissent was written by Alito and joined by Scalia, Roberts, and Thomas.
Much of Alito’s objection focused on the distinction between whether Hastings’ refusal to offer Registered Student Organization status was based in an “accept all comers” principle or a Non-Discrimination Policy. He asserted that (irrespective of stipulation) at the time of rejection the school did indeed “permi[t] political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs” and only decided that this was an “accept all comers” policy after the fact.
Alito noted that many organizations limited members to those who agree with their positions (e.g. the pro-life group, the Democratic Caucus) and at least one had race-based restrictions (La Raza). They were required to change these provisions only after CLS was rejected for membership, illustrating that “that Hastings had no accept-all-comers policy until this litigation was well under way.”
3. The court contrasted this decision from that which allowed the Boy Scouts to exclude members.
CLS may exclude any person for any reason if it forgoes the benefits of official recognition. The expressive-association precedents on which CLS relies [as opposed to limited public forum], in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out. See, e.g., Dale, 530 U. S., at 648 (regulation “forc[ed] [the Boy Scouts] to accept members it [did] not desire”
Application of the less-restrictive limited-public-forum analysis better accounts for the fact that Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition.
This would suggest that cities who wish to limit their public subsidies to only those organizations that do not discriminate are free to do so. Indeed, this seems to directly contradict the decision of the jury in Philadelphia.
In his rebuttal, Alito found this case to be exactly similar to Dale in that the policy forces organizations to accept members with whom it does not wish to associate. He dismissed the funding possibilities as inconsequential and only a small part of the case.
4. The court confirmed its position that attempts to differentiate between behavior and identity (in religious terms, “love the sinner, hate the sin”) as distinctions without difference:
To bring the RSO program within CLS’s view of the Constitution’s limits, CLS proposes that Hastings permit exclusion because of belief but forbid discrimination due to status. See Tr. of Oral Arg. 18. But that proposal would impose on Hastings a daunting labor. 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 case itself is instructive in this regard. CLS contends that it does not exclude individuals because of sexual orientation, but rather “on the basis of a conjunction of conduct and the belief that the conduct is not wrong.” Brief for Petitioner 35–36 (emphasis deleted). Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U. S. 558, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” (emphasis added)); id., at 583 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class.”); cf. Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 270 (1993) (“A tax on wearing yarmulkes is a tax on Jews.”).
Here, interestingly, Alito dismisses the majority’s logic as “because it is easier to enforce.” He does seem to accept distinction between identity and behavior, but not in a way which argues that gay people are only “folks who engage in certain behavior.” Rather, he seems to agree that gay people, as such, exist but that they, like Muslims, Atheists, and those Christians who believe significantly different doctrines than those of CLS, should be able to be excluded by a club which is based on certain shared religious beliefs.
In fact, while Alito questioned (in a footnote) what might possibly be meant by religious status (as opposed to religious belief) in terms of immutable characteristics, he seems to have no question about what sexual orientation status may mean. Nor does the dissent suggest that orientation is mutable or inconsequential.
While it may be premature and reaching to draw such a conclusion, it appears that the court seems to be in agreement that sexual orientation is a matter of people and not a matter of behavior.
5. The dissent was not homophobic. Indeed, Alito seemed far less interested in why CLS was excluding members than he was in their right to do so without being marginalized based on their viewpoint. His was a freedom of expression argument rather than an upholding of morals and standards argument.
As Roberts, Thomas, and Scalia did not write separate dissents, we cannot know their motivations. However, this is in tone far from that of Scalia in Lawrence v. Texas, and to me hints as a certain mellowing that may be occurring on the conservative end of the bench. Or, at least, I hope that is what it suggests.
6. And finally, the justices illustrate that legal findings need not be boring or dry. Stevens, in his concurring opinion, gets points for the best quote:
“In the dissent’s view, by refusing to grant CLS an exemption from the Nondiscrimination Policy, Hastings violated CLS’s rights, for by proscribing unlawful discrimination on the basis of religion, the policy discriminates unlawfully on the basis of religion.”
In this original BTB Investigation, we unveil the tragic story of Kirk Murphy, a four-year-old boy who was treated for “cross-gender disturbance” in 1970 by a young grad student by the name of George Rekers. This story is a stark reminder that there are severe and damaging consequences when therapists try to ensure that boys will be boys.
When we first reported on three American anti-gay activists traveling to Kampala for a three-day conference, we had no idea that it would be the first report of a long string of events leading to a proposal to institute the death penalty for LGBT people. But that is exactly what happened. In this report, we review our collection of more than 500 posts to tell the story of one nation’s embrace of hatred toward gay people. This report will be updated continuously as events continue to unfold. Check here for the latest updates.
In 2005, the Southern Poverty Law Center wrote that “[Paul] Cameron’s ‘science’ echoes Nazi Germany.” What the SPLC didn”t know was Cameron doesn’t just “echo” Nazi Germany. He quoted extensively from one of the Final Solution’s architects. This puts his fascination with quarantines, mandatory tattoos, and extermination being a “plausible idea” in a whole new and deeply disturbing light.
On February 10, I attended an all-day “Love Won Out” ex-gay conference in Phoenix, put on by Focus on the Family and Exodus International. In this series of reports, I talk about what I learned there: the people who go to these conferences, the things that they hear, and what this all means for them, their families and for the rest of us.
Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"
Using the same research methods employed by most anti-gay political pressure groups, we examine the statistics and the case studies that dispel many of the myths about heterosexuality. Download your copy today!
And don‘t miss our companion report, How To Write An Anti-Gay Tract In Fifteen Easy Steps.
Anti-gay activists often charge that gay men and women pose a threat to children. In this report, we explore the supposed connection between homosexuality and child sexual abuse, the conclusions reached by the most knowledgeable professionals in the field, and how anti-gay activists continue to ignore their findings. This has tremendous consequences, not just for gay men and women, but more importantly for the safety of all our children.
Anti-gay activists often cite the “Dutch Study” to claim that gay unions last only about 1½ years and that the these men have an average of eight additional partners per year outside of their steady relationship. In this report, we will take you step by step into the study to see whether the claims are true.
Tony Perkins’ Family Research Council submitted an Amicus Brief to the Maryland Court of Appeals as that court prepared to consider the issue of gay marriage. We examine just one small section of that brief to reveal the junk science and fraudulent claims of the Family “Research” Council.
The FBI’s annual Hate Crime Statistics aren’t as complete as they ought to be, and their report for 2004 was no exception. In fact, their most recent report has quite a few glaring holes. Holes big enough for Daniel Fetty to fall through.