Supreme Court

Supreme Court Upholds Christian Legal Society's Exclusion

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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.

The decision in Christian Legal Society v. Martinez is here. Previous coverage of the controversy here.

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  1. One of my law school exams was based around this case. I think my conclusion was right there in the middle. Nothing stops this group from continuing without official recognition.

    1. The problem with being unrecognized is that unrecognized groups are not eligible for funding or subsidy (such as meeting space) that is paid for by mandatory student fees; if the students are still required to pay the fees, then they are being forced to fund groups which do not share their beliefs, but are unable to obtain equal funding for their own viewpoint, despite having contributed the funding in the first place.

      1. The fun part is that it works the other way too: if these guys are eligible for that stuff then the other students are being forced to fund their—uh…less accepting….yeah that’s the ticket—viewpoint.

        The only strictly libertarian solutions is to say that the government (or it’s proxy in the form of a government funded college) shouldn’t get to dispense student funds to anyone.

        None of which prevents private colleges from handling student fees in any way consistent with the contract they make with the students.

        If you made me dictator for just this issue alone, I’d go for money to no one and access to facilities to either no one or everyone on a viewpoint neutral basis.

        1. While I fully agree with you, allowing any group to have access to the funds at least gives everybody the chance to have a group. “Don’t like what CLS says? Go start your own group!”

          This ruling says to CLS “don’t like what everyone else says? Tough–you have to pay for it, and no, you can’t start your own group,” at least not on the same terms.

          But we can’t give them viewpoint-neutral access, now can we–after all, if we let them choose, some of them might choose the wrong viewpoint!

          1. Stanford has (had?) a system that let students request a line item refund for every student organization you didn’t like.

            It was super awesome.

            1. Is “all of the above” a choice?

              1. yes, but you had to click on each box separately.

          2. But CLS doesn’t want to have recognition and funding on the same terms as all other groups… they want to set their own terms. Hardly as “viewpoint-neutral” as you seem to believe.

  2. This would seem cause though, to re-visit some of those cases where the Boy Scouts (which I think have prevailed so far) were sued over using public school and other community facilities.

  3. For the minority, by contrast, recognizing CLS would be a matter of treating student groups evenhandedly, without regard to the ideas they advocate.

    Isn’t this case less about what they advocate and more about who they give full membership to? CLS can still exist and have members and meet without official recognition and funds. However, if the university doesn’t want to use taxpayer funds to support discriminatory membership rules. If the school suspended members of the non-official club for membership, then we would have issues of the state violating freedom of association.

    1. Every “membership” is inherently discriminatory.

      1. YOU LIE!!!

        1. No, JEP has a point. I could never be a member of the Human Race.

      2. If the only membership requirement is being a student and showing up, it’s not discriminatory.

    2. if the university doesn’t want to use taxpayer funds to support discriminatory membership rules.

      The point of the minority, if I understand it, is the university doesnt get to have any “wants”. It has to act equally regardless of its wants.

      To me, there is an obvious solution, use taxpayer funds equally – give all groups exactly $0.

      1. I am curious about how even-handed Hastings has been about “discriminatory” student groups. Is there a Muslim group not welcoming to Jews or gays? Is there a gay group that requires belief in same-sex marriage? Knowing San Francisco, I suspect that Hastings is far more likely to see discrimination when it involves Christians or conservatives, but elsewhere, not so much.

        1. Outlaw, the gay student group at Hastings, has a rule that restricts membership to those who accept its mission and (pro-gay-rights) message. This rule violates Hastings’ “take-all-comers” policy but Outlaw has not been disciplined.

      2. It’s not a want. There’s a law school policy preventing discrimination. If there is another campus group that discriminates based on religion, gender, etc. then their funding can be appealed and forced to be removed under this ruling.

  4. Well then there’s a lot of other clubs that need to be changed or lose funding, I guess.

    1. The ruling did not say discriminatory organizations could not receive public funding (although I wish it did, thus invalidating much government funding) – only that they don’t have a “right” to it.

      1. Basically, the ruling said PC speech codes are OK — you can get government-funded support if your organization engages in the “right” form of left-wing discrimination.

  5. While I agree that the gov. should not endorse any particular religion, the public university is denying access to facilities that any individual who is a member of the institution has access to.

    As a group, they are denied access because the adhere to certain moral code. As a private group, they are allowed to control who joins their ranks.

    How is a religious group excluding those who do not obey a similar moral code any different than say The Society of Women Engineers or any of the many African American, Asian, or Indian student groups?

    The difference is that while women or African Americans don’t chose to be female or have dark skin, those who practice a different moral code have made conscious choice to do so.

    Indeed, you can argue that because CLS is excluded certain people based on a conscious decision instead of a genetic, uncontrollable characteristic that they have more a right to use the facility than any of the “cultural” student groups do.

    For the record, as a Christian, I think this is one of those “I refuse to belong to the type of club that would have me as a member” situations.

    1. The Society of Women Engineers or any of the many African American, Asian, or Indian student groups

      Most of those groups don’t require you to be a member of the gender or race they purportedly represent. It’s just that most people choose not to join those groups. There were white guys in my b-school’s African American and Hispanic clubs, for example.

      1. Yep.

        The SO spent a couple of years at a small tech school out west known for it’s low coed ratio. Almost half the membership of SWE was male because where else are you going to go to meet girls…

  6. For those who know: Can I legally start a Blacks-only, private (members only) nightclub (commercial venture, not college club)? I thought that I couldn’t, but this ruling seems to suggest that I can.

    Thanks

    1. “Can I legally start a Blacks-only, private (members only) nightclub”

      Yes. But you’ll need some of these:

      http://image.made-in-china.com…..tector.jpg

    2. “Can I legally start a Blacks-only, private (members only) nightclub?”

      Sure. As long as you install metal detectors at the door.

    3. Didn’t Rand Paul answer this question for you?

  7. “The difference is that while women or African Americans don’t chose to be female or have dark skin, those who practice a different moral code have made conscious choice to do so.”

    Not so. I have a friend who is transgendered. He was born a female, with all the female parts, and is now legally a male (ID, passport, everything). Obama calls himself Black, even though he is half White. I have an ancestor from about 10 million years ago who came from Africa (don’t we all?), so even though I’m blond-haired and blue-eyed, I’m Black (when I want to be).

    Looks like more stuff is by “choice” then ever before.

    1. Geez, I drew everything in a nice black/white, and then you come along and smear everything together.

    2. The best current scientific thinking is that homosexuals do not have a conscious choice as to whether to be homosexual.

      However, since the CLS excludes “nonabstinent homosexuals as well as heterosexuals who engage in extramarital sex,” looks like they’ve covered themselves.

  8. I think a distinction has to be drawn here between access to facilities and funding.

    Can a state say that Christian groups are banned from public parks, or are not allowed to use public roads? If they can’t, then I don’t see how it has the power to say they can’t use the facilities of a public university.

    “But that’s different!” So close the public university.

    1. Doesn’t “official recognition” also come with direct cash subsidization?

      1. It didnt for any of the college groups I was a member of.

        1. When I was in law school (albeit a private one) all recognized clubs got a slice of the student fee pie. Assuming it’s the same at Hastings I suppose it would be no different than supporting an organization with tax dollars–you take from everybody and then redistribute it as you like.

    2. The college never said the group could not access facilities. In fact, they welcomed them to use the facilities for meetings, etc. They just did not want to give the official club recognition and funding.

  9. 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.

    Uh huh. Let me know when Alito et al. uphold the right of white supremacists, or radical Islamics to avail themselves of the quad and lecture halls.

    This case, like others involving State Universities, illustrates the immorality and inescapable unconstitutionality of government funded education.

    1. Exactly. The same freedom does not apply to non-profits who express “material support” for terrorist groups, according to these same people.

      1. That’s just nitpicking.

        1. No. Freedom of speech and association is meaningless if someone gets to pick which speech or association deserves it.

          1. Ok – you aren’t following the facts of the case. The college never said they could not meet, speak out, hold events, etc. Just that they would not be formally recognized by the school or receive club funds. That’s not a violation of their rights to speech or association – funding and recognition are invented positive rights. They were welcome to continue to meet on college property and use college resources as they are students.

  10. What a ridiculous ruling. If you subscirbe to a certain moral code, it only makes sense that you associate with those of the same beliefs. I find it beyond stupid that people feel threatened by homosexuals as stupid as I find that people feel threatend by those who feel threatend. I doubt you see many gays or many college students at all in line to join this group anyway.

    1. If that’s the case, then why should the group need to have discriminatory membership pledges? The group could have advocated against gay rights, and it’s unlikely any gays would join anyway. But explicitly excluding gays from membership eligibility into a club that gays are forced to pay for via their tax dollars is a violation of equal protections for individuals.

      1. Seems they could require members to promise to live a certain way, and to write a 100 page essay if they misbehaved, but not *ban* them.

        Hate the sin, love the sinner and all that.

  11. To me, there is an obvious solution, use taxpayer funds equally – give all groups exactly $0.

    Beat me to it!

    1. Yes, but the free use of university meeting facilities, with the attendant electricity, HVAC, AV equipment, is also a subsidy.

      Either we make all clubs pay their own way and eliminate “activities fees” (fine with me) or we subsidize groups.

  12. The solution is for CLS to bum rush a G&L organization and flood them with membership applications.

    1. Most of these organizations are open to non-narrow straights. Most straights aren’t interested in joining.

    2. Actually, that’s a great idea. They should see about inviting them to a “Love Won Out” Conference or similar sexual orientation and Christianity dialogue of perspectives.

  13. The group membership is based on an odd premise, that they would somehow monitor everyone’s private behavior, and exclude unmarried sexually active heterosexuals, as well as sexually active homosexuals.

    In a traditional Christian church, these behaviors are considered immoral, and disapproved of, but those engaging in them are not usually excluded from attending Church.

    Without taking sides on the Court decision, I think it was stupid of the group to state that they have these draconian membership requirements.

    To paraphrase the words of Jesus, “He among you who has not sinned, let him exclude the sinner from our group membership.”

    1. And the CLS is going to get a nasty comeuppance if the plaintiffs prevail in Perry v Schwarzenegger. Heh.

      1. Oops, thought that Supremes had found for CLS. My bad.

    2. Same as I said below: if I want to establish a vegetarian or vegan group, is it discriminatory to demand a pledge not to eat meat?

    3. “In a traditional Christian church, these behaviors are considered immoral, and disapproved of, but those engaging in them are not usually excluded from attending Church.”

      Depends on what you mean by “traditional Christian”, but things like unrepentant sexual sin is one of the specific things the Bible describes as sufficient to merit excommunication. So, no, such a person would not be allowed to continue as a “member” of the church or occupy a leadership role.

      At the same time if someone were simply attending services at a church and were not a member, and it was discovered that person were gay, he or she would probably not be prevented from continuing to attend services. It would likely be the exact opposite, in fact.

    4. I think two millenia speaks more to their importance and effectiveness instead of their irrelevancy. But more to the point, requiring voting members to actually practice what they speak to believe? You’re right, that’s outrageous–to a hypocrite. What is important in any organization is to have people in leadership who actually walk the walk, but you are right about open doors. Anyone is welcome in a Christian church, but only those who uphold Christian beliefs should lead.

  14. Somehow this decision will allow universities to ban libertarian groups.

    1. Why would a libertarian group desire public funding or government entity recognition anyway?

  15. Fantastic ruling in a day of fantastic rulings. First of all, it asserted that publicly funded institutions do not have the right to discriminate against homosexuals, who are forced to contribute to the public coffers that fund it. It also follows the Constitution – equal protections for individuals are protected by the 14th Amendment, but Reason, Cato and others were erroneously arguing that groups too have equal protections too, when they don’t. There is no right to government recognition, legitimization or funding and from a Constitutional standpoint, inventing new positive rights is not a good precedent for libertarians.

    Also, there was no interference with the organization’s free speech and assembly. The group can speak out and meet on campus (were welcomed to by the admin in fact). Freedom of assembly and speech require no government recognition.

    If they were a purely private organization funded with private money and were prevented from organizing or speaking out on campus, then I would agree their rights were being violated. But that was absolutely not the case here, and Reason didn’t seem to do due diligence in researching the back story behind it.

    1. So when they defund the LGBT clubs, that will be okay, too? Right?

      1. Most* university LGBT clubs allow people of all orientations to join.

        * I hesitate to say all because someone may point to a counter-example, but I do not know of any that do.

      2. Sure, if they are discriminatory to non-homosexuals.

        1. According to the SC it doesn’t matter if they discriminate or not.

        2. But what happens if they discriminate solely based on someones religeous beliefs?

          1. Then they have no right to forced funding by those not of that religion. It’s very simple, folks. Groups have no rights other than the combined rights of the individuals in that group. That does not give them the right to acquire money removed by force of law from all taxpayers and exclude some of that same pool from access to that money’s use. Publicly funded discrimination is never acceptable and is not libertarian. I don’t believe Christians should be forced to fund an exclusive Satanist society, atheists should be forced to fund a religious society, blacks should be forced to fund the KKK, whites should be forced to fund the Black Panthers, straights should be forced to fund a gay-exclusive organization, gays to fund a straight-exclusive organization, etc. Otherwise, the 14th Amendment is meaningless.

    2. OK, then if I start a vegetarian / vegan club, and request a pledge not to eat meat, then I am being discriminatory?

      1. If you kick people out for eating meat, yeah.

        But otherwise, not at all. You could ask, but someone else would have the option of bring bacon to the club meetings to snack on.

  16. Headline: Supreme Court Upholds Christian Legal Society’s Exclusion

    Lead sentence: Today the Supreme Court ruled against the Christian Legal Society (CLS)…

    Something isn’t right, here.

    1. Their exclusion from the University’s list of officially recognized groups.

    2. I agree that it’s confusing, but it is factually accurate.

  17. Virtually all of the supposed more complex supreme court cases are easily solved by abolishing whatever public institution is involved. Eliminate government education, eliminate government’s involvement in marriage. Strip it of these things on which it must walk a careful line, and the problem is solved.

  18. You just know those CLS chicks are biggest freaks around.

  19. I’m not a lawyer, but having skimmed the decision it seems that the court did not go so far as to positively forbid public schools from recognizing student groups that are exclusive; it simply affirmed the legality of a public school implementing a non-exclusivity policy that is applied evenly to all student groups, be they religious or not.

    In other words, if you’re a public school you now have the option to institute a policy like Hastings did, but you are not compelled to do so.

    Would someone with more domain knowledge (i.e. an attorney) care to comment on whether my assessment is accurate?

    1. Exactly. I do wish that it was law that discriminatory organizations can not receive taxpayer funding regardless (thus removing government funding from many, many things), but this ruling merely allows schools to maintain non-discrimination policies as long as they are applied consistently. It doesn’t force them to.

  20. “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.”

    Except for the small problem that what CLS was discriminatory was in the realm of moral behavior, which is the realm of ideas and philosophy. It’s analogous to a group founded to promote libertarian ideas being unable to prevent a Marxist from joining and representing himself as a good libertarian, because the school administration think libertarianism is questionable philosphy but find Marxism acceptable to them. It puts the school, as an extension of the state, in the position of deciding what philsophies and ideas are acceptable.

    1. To clarify, from what I can see, a state run school can officially recognize a club with an exclusionary membership policy if the school approves of the basis of exclusion. CLS was rejected because becaus ethe the school did not approve of the basis for exclusion. This is fine if the school is private, it is questionable when the school is an extension of the state.

      1. I don’t think the issue was excluding based on the moral behavior, but based on sexual orientation. If your religion believes that dark skin is the mark of Cain and that your club should exclude those of color, the school is well within their rights to not subsidize your discriminatory behavior.

  21. No, hetero sex outside of marriage is also not allowed.

  22. One thing in the ruling is consistent, all left wing groups get full funding while religious groups get little or none.

    I find it amazing how frequently the “rules for funding” first require Christians to repudiate their views in favor of newer, politically correct views. (typically gay or feminist leaning)

    It is also the standard fare to call all left-wing moral positions as “value neutral”. Rubbish!

    Why can’t you leftist Americans just admit it, you are anti-Christian bigots who cannot stand to hear views that are not yours. You are willing to use the brute force of law and money to make sure that YOURS is the only “acceptable” public view.

    Free speech? Freedom of Religion? A pluralistic society? What a joke!

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