Today the Supreme Court ruled against the Christian Legal Society (CLS), which sought official recognition as a student group at Hastings College of Law in San Francisco. The school, which is part of the state university system, refused to recognize CLS because the group demands that voting members adhere to a traditional moral code that rejects "unrepentant participation in or advocacy of a sexually immoral lifestyle." Hastings said that rule, which excluded nonabstinent homosexuals as well as heterosexuals who engage in extramarital sex, violated the school's nondiscrimination policy. CLS said the school's position violated the freedom of association, freedom of speech, and freedom of religion guaranteed by the First Amendment. All nine justices seem to agree that CLS, as a private religious group, has a right to discriminate against people who do not share its beliefs. But they disagree about the significance of recognizing CLS as a student organization, a status that allows access to campus facilities and university funding.
For the majority, such recognition would make the law school complicit in the group's discrimination. "The First Amendment shields CLS against state prohibition of the organization's expressive activity, however exclusionary that activity may be," Justice Ruth Bader Ginsburg writes in a majority opinion joined by Justices Anthony Kennedy, John Paul Stevens, Stephen Breyer, and Sonia Sotomayor. "But CLS enjoys no constitutional right to state subvention of its selectivity." She characterizes the law school's nondiscrimination polcy as "both reasonable and viewpoint neutral." While the Constitution "may protect CLS's discriminatory practices off campus," Stevens writes in his concurring opinion, "it does not require a public university to validate or support them."
For the minority, by contrast, recognizing CLS would be a matter of treating student groups evenhandedly, without regard to the ideas they advocate. There is substantial support for that view in the Court's precedents, which include decisions saying that government-run schools violate the First Amendment if they refuse to let religious groups use their facilities or exclude them from subsidies available to nonreligious groups. In a dissenting opinion joined by Justices John Roberts, Antonin Scalia, and Clarence Thomas, Justice Samuel Alito sums up the view that refusing to recognize CLS is an impermissible form of discrimination:
Our 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.