Private Free Speech or Official Discrimination?

Yesterday the Supreme Court heard the Christian Legal Society's challenge to an anti-discrimination policy that prevents the socially conservative student group from being officially recognized by Hastings College of Law in San Francisco. The society says voting members must follow traditional Christian teachings, which include prohibition of homosexual behavior and premarital sex. The school, which is part of the state university system, says recognizing the society, which would give it access to campus facilities and a share of student acivity fees, would make the administration complicit in illegal discrimination based on sexual preference.

Two Supreme Court precedents suggest otherwise: A 1993 ruling said that a New York school district would not run afoul of the Establishment Clause by making school space available after hours to a Christian group on the same terms as other groups and that such equal treatment was in fact required by the First Amedment's free speech guarantee. Likewise, a 1995 decision said the University of Virginia had to give a Christian student newspaper the same printing subsidies that were available to secular student publications. In both cases, the Supreme Court held that the messages communicated by the religious groups constituted private speech.

Last year the U.S. Court of Appeals for the 9th Circuit nevertheless rejected the Christian Legal Society's challenge to the Hastings policy. In 2006, by contrast, the U.S. Court of Appeals for the 7th Circuit sided with CLS in a similar dispute involving Southern Illinois University's law school. In yesterday's oral arguments, Stanford University law professor Michael McConnell, representing the CLS chapter at Hastings, argued that the law school's ban on discrimination by recognized student groups is "a frontal assault on freedom of association," saying, "If Hastings is correct, a student who does not even believe in the Bible is entitled to demand to lead a Christian Bible study." Furthermore, he said, an NAACP chapter would have to accept "a racist skinhead." McConnell was not so keen to defend the right of racist skinheads to exclude blacks, saying (in response to a question from Justice Sonia Sotomayor) that CLS is arguing only that student groups should be allowed to discriminate based on belief, not based on race.

Justice Antonin Scalia made his view pretty clear, saying, "To require this Christian society to allow atheists not just to join but to conduct Bible classes…that's crazy." Justice Samuel Alito raised a hypothetical favorable to CLS: "50 students who hate Muslims show up and they want to take over that [Muslim] group." In that case, said the law school's lawyer, the original members could "rejoin and form another group." So "if hostile members take over," said Alito, "former members of CLS can form CLS 2?"

The law school says such concerns are purely theoretical. But the possibility of subversion by hostile nonbelievers is worrisome enough that CLS has attracted support from a variety of religious groups as well as defenders of civil liberties such as the Cato Institute and the Foundation for Individual Rights in Education. The ACLU is siding with Hastings.

The oral argument transcript is here (PDF). SCOTUS Wiki has briefs here.