Court rules that law school need not recognize anti-gay Christian group

This commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle Bulletin.

Timothy Kincaid

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.”


June 28th, 2010

You know, any group that doesn’t want to abide by the non-discrimination policy of any public building or organization

need simply be independent of such organizations.

If “Christian student group” of law students can meet in a church, without any affiliation with Hastings that would make them accountable to the non-discrimination policy. If they don’t want money with strings (like non-discrimination policies) attached, raise their own on their own.

It is an interesting thing that homophobes insist on being able to attend glbtq events, ala the Minneapolis pride parade, and also insist on being able to keep GLBTQ people from attending their events.

The SCOTUS decision simply applies the same standard that allowed an anti-gay man to annoy people at the Minneapolis pride parade to GLBTQ students at a college financially supporting a student club for Christians.

And since some GLBTQ people are Christians, and it is likely that some of the students who wanted to participate were Christian as well as gay,

Christian Legal Society can either learn to play fair, or take their ball and go home.

Lynn David

June 29th, 2010

The ADF ( has said: “The court confined its opinion to the unique policy and did not address whether nondiscrimination policies in general, which are typical on public university campuses, may require this. The court concluded that public universities may override a religious student group’s right to determine its leadership only if it denies that right to all student groups.”


June 29th, 2010

Hmmm. Is a public university required to dispense funds to what is essentially a private club that deliberately excludes pre-determined outsiders and does so in a discriminatory manner?

(NTS: Maybe Hastings should have simply passed another rule… anyone who demands to be free of the non-discrimination policy shall not — personally — be covered by it. Oh, the hypocritical dilemma.)

But agree, the SCOTUS decision is in interesting one; particularly given the bullying history of the group involved. (I’ve been following them for awhile… sadly.)

Hastings made it clear that the CLS-affiliated group could continue “use of Hastings facilities”. But Hastings was also “precluded from utilizing students fees to fund its activities” unless this group behaved like everyone else.

Just for the hell of it, I’ve gone over to Hastings and reviewed the by-laws for the existing student associations. Regardless of where any of these may have started from, years ago, it seems clear that current by-laws for the recognised student groups all conform to the non-discrimination policy. The problem for this student group may not be the students at Hastings itself per se, but the policies of an outside group (CLS) that they decided to abide by.

And guess what: you don’t have to be Jewish to join the Jewish Law Students Association.

But “HJLSA will promote activities related to Judaism on campus; provide a forum for Jewish students to meet and network; and represent the interests of Jewish students to Hastings’ administration.”

Note how non-prescriptive that is. It doesn’t anticipate a need to be discriminatory in order to meet those goals. (Actually, I dare say much of those goals would be best achieved if the participation of non-Jewish students was actively encouraged.) It doesn’t even dare nominate who is a Correct Jew, and who’s a splitter. The outrage.

The Black Law Student Association is perhaps an even more pointed example, given it has also adopted the Constitution of an outside body (National Black Law Student Association). Neither seem to feel obliged to enact a “No Whiteys Allowed” policy to achieve the goal of advancing the interests of black law students. Wow, how stunning. Are they both insane!

The Hastings OutLaw group itself seeks to “promote a positive atmosphere at Hastings … educate the community at large … alleviate and eradicate homophobia, transphobia, racism, sexism, and other affronts to the dignity of individual human beings.”

Straight people aren’t excluded. Nobody has to sign a pledge to engage in homosexual behaviour. I presume Christian-identifying(c) people are already active full members, and nothing precludes them from being so. The horror. GLBTQ&W members must feel absolutely sick to their stomach at every OutLaw event what with those smelly people included and all.

I suspect that where the CLS-affiliated group has overstepped the mark is in trying to control by exclusion the absolute (private) environment they are in, and demanding access to funds that seek to provide for otherwise for an entire (public) student body. They don’t seem to be advocating on behalf of anyone, against more like it, and exclude even Christians who refuse to be as dogmatic as they are. Egh, no people. We’re not here to fund your own Special Private Friendship Circle. Do that on your own dime. Have you tried Facebook?

Whatever will such people come up with next … faith-based funding?

Ben in Oakland

June 29th, 2010

““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.””

This to me sums up the problem nicely. I am surprised that the minority of the court didn’t get it– or chose not to.

“But, on the other hand, I fear that broad interpretation may lead to an inability for any organization to control its own identity. ” This is what any group faces– inifltration from theo utside. But this is what dmeocracy is for– people get to vote and decide whop will lead them, what direction the group is going, and so forth. Theoretically, fundamentalists could infiltrate the board of Sf Gay Pride, but the membership would have to deicde whether this is the direction they want to go, and whether they will fund it or not. This is just democracy in action.

If this were not about gay people, but about some other group, there wouldn’t even be a question here.

As Molly Ivins would say, ya gots to dance with them that brung ya. If CLS doesn’t want to include gay people– not that any would join, most likely– then they don’t need to accept college money. If gay people do join, they can seek to change the rules of the club in either case.

Priya Lynn

June 29th, 2010

Timothy said “As I recall, my fraternity required that its members believe in God…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.”

As it should be. Private organizations are entitled to discriminate but they’re not entitled to have the government or other organizations support and subsidize their discrmination.

Timothy said “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.”.

Yes, it most certainly suggests that and it most certainly contradicts the decision of the jury in Philadelphia. There have been a number of cases where the boy scouts have claimed a right to subsidization and all have ruled that they have a right to discriminate but not a right to be subsidized while they discriminate. The philadelphia case is the exception to the well established precidents in this area because the jury there didn’t concern itself with the intricasies of the law and voted based on their personal preferences.

Timothy said “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.”.

Nonsense. The CLS isn’t being forced to accept any members it does not want, it is simply being denied subsidization and recognition. They’re entitled to have discriminatory membership rules but they’re not entitled to have any governemnt or other organization support that discrimination.

Timothy said “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:”.

Right on. The “love the sinner, hate the sinner” line is absurd. When someone commits a crime we don’t punish the sin, we punish the sinner. God doesn’t send the sin to hell, he sends the sinner to hell.

Alito said “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.”

That’s just dumb. Its the same as saying tolerance requires tolerating intolerance – that tolerance requires allowing people to murder those they don’t like.

Jason D

June 29th, 2010

Priya, absolutely. That “tolerance means tolerating intolerance” argument is absurd. Tolerance is an all or nothing proposition. If you want tolerance, you have to be tolerant. A group that merely disagrees with homosexuality may be tolerant, but a group that wants to punish us is intolerant.

I agree that Alito is off the mark.

As someone who works for a non-profit, if you solicit funds, you find that there’s usually a trade off. Some donors may want this or that changed, or need this or that type of recognition. Smart folks are prepared to negotiate.

It makes perfect sense that if you want university money, you should be following university policies.


June 29th, 2010

The message I get is that if a gay person who is a Christian want to join the group, the group won’t allow them to even if the gay person IS a Christian. They essential say, “No you’re not a Christian if you’re not OUR KIND OF CHRISTIAN. Our kind of Christian is someone who cannot be Christian and gay at the same time.”

In other words, it’s not really open to Christians. It’s open to a rigidly defined kind of Christian that ONLY excludes gays. They pick the one thing gays cannot shed and exclude them for that one thing.

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