Today the Supreme Court is hearing arguments in Christian Legal Society (CLS) v. Martinez, in which the University of California's Hastings College of Law in San Francisco barred the Christian Legal Society from discriminating in its membership. The organization requires voting members and leaders to sign a statement of faith, though it allows others to attend meetings. A student who “advocates or unrepentantly engages in sexual conduct outside of marriage between a man and a woman” can't vote or become a leader in the group.
The New York Times editorialized about it here:
To qualify for official recognition, and receive money from a publicly financed university, groups at Hastings are required to adhere to the school’s nondiscrimination policy, which says that official student groups cannot refuse membership on the basis of race, religion, national origin, sexual orientation or other prohibited factors.
For years, the Christian Legal Society chapter at Hastings adhered to this policy. In 2004, it changed course and required members to sign a “statement of faith” that denied membership to students who did not share all of the society’s religious beliefs, as well as gay students. Hastings told the society that it could not remain a recognized group and receive money from the school unless it stopped discriminating.
The society refused, and when the funding stopped, it sued, claiming that its First Amendment rights of free speech, free association and free exercise of religion were being denied.
Unfortunately for the Times, schools create all kinds of policies that violate the Constitution and are frequently challenged. Speech codes — limits of free speech just to make sure the campus only maintains a peaceful atmosphere — are rebutted all the time in the courts because state institutions cannot abrogate a citizens' right to free speech.
Same goes for freedom of association – would you permit neo-nazi membership in the Lesbian Gay Bisexual and Transgender Alliance chapter on your campus? I would hope not.
Does this change because there are federal dollars at play? Actually, it's precisely because federal dollars are at play that you can't just tell Christians to do something you want them to do — this is why conscience protection exists for funding of abortion, because you force someone to violate their faith when money they've earned goes to pay for something to which they object.
Other lawsuits on campuses have addressed this topic on a leadership level. Courts have consistently ruled for the groups when they require the elected president to be a Muslim, or a Christian. But if a group cannot define itself along certain lines, I don't see the point of having such a group.
Thankfully, Harvey Silverglate of the Foundation for Individual Rights in Education argues in his op-ed today:
This requirement is not invidious discrimination; rather, it's a form of expressive association and it's protected by the First Amendment. As the Supreme Court held in Roberts v. U.S. Jaycees(1984), “freedom of association plainly presupposes a freedom not to associate.” The government and its agents—including public universities—cannot interfere with the right of people to organize around shared beliefs.
The expansive interpretation of “non-discrimination” insisted upon by many public colleges has little in common with the real world. Many religions—not least Christianity, Islam and Orthodox Judaism—include proscriptions on homosexuality and much else about sexual morality. Student religious groups cannot be required to abandon or lie about these tenets of faith as a condition of obtaining equal access to campus life.
Would gay and lesbian student groups really want to be forced to accept as voting members the parishioners of the Westboro Baptist Church, who have for years picketed the funerals of gay murder victims and American soldiers (whose deaths they claim are God's punishment for the nation's sin of toleration)? Following the logic of the Ninth Circuit, the most virulently anti-gay student (or any number of such students) could not be refused a vote.