December 7, 2009

Does a law school's anti-discrimination policy trump a student organization's freedom of speech and religion?

The Supreme Court granted cert in Christian Legal Society v. Martinez:
The Christian Legal Society at the University of California's Hastings College of the Law requires officers and voting members to share their religious beliefs, including that "Christians should not engage in sexual conduct outside of a marriage between a man and a woman."

The group filed a federal law suit after the San Francisco law school refused to accord it official status. The school said all official campus groups, which are eligible for funding and other benefits, may not exclude people because of religious belief, sexual orientation and other reasons.

39 comments:

Quasimodo said...

What business do universities have approving or disapproving or giving money to groups, clubs, or organizations?

vbspurs said...

Oh, Lord. Not another tempest in a same-sex teapot...

So long as other religious groups must include gays in their groups, I say, sure, make this group accept gays. That includes the Muslim student organisations. It's one thing to be against SSM, which has overarching historical and legal implications, but not wanting to be surrounded by gays if one is an adult, regardless of religion, is just plain wrong. It's prejudice by any name.

OTOH, it's silly to want to join a group that clearly has moral strictures against your behaviour (note, I said BEHAVIOUR). You just want to provoke a reaction. Why not form a group called "Christian Gay Students Organisation" and be done with it.

Cheers,
Victoria

edutcher said...

Funny, I thought there was an amendment or something that protected these people. Apparently, not in San Fiasco.

What was I thinking?

kentuckyliz said...

Free association?

No one is forced to join this organization.

Big duh.

t-man said...

Victoria,

The constitutional issue is whether you can restrict voting membership (i.e., those who control the organization) to people who share the core beliefs of the group. If you can't, then no group would have the ability to control its functioning and message. This is a particular danger to groups whose memberships have a minority viewpoit at a public university.

It's interesting that the appeal is from a one-page, unpublished affirmance of the 9th Circuit, affirming an unpublished decision of the district court. I read that to mean that at least four justices see something very wrong with the rulings below. At the very least, the Ninth Circuit did not even attempt to engage in a significant tension in the law. Ricci redux?

Richard Fagin said...
This comment has been removed by the author.
Richard Fagin said...

Cetain law schools think their anti-discrimination policies trump federal law, so why is this a surprise?

Scott M said...

If I want to form a group of left-handed, underwater basketweavers...for the sole purpose of following our left-handed, underwater basketweaving ways, why should the school be allowed to force us to admit right-handed, pool-side, bread bakers?

For that matter...why is there an Engineering student organization, which all engineering students can belong to, but also a Women's Engineering student organization and a Black Engineers student organization? By campus rules, they cannot restrict membership to what their titles imply, but I've got first-hand experience that trying to cross that line puts you in a very tense, if not hostile, situation.

MadisonMan said...

What Quasimodo said.

David Walser said...

Victoria,

Isn't the proper formulation that the school should provide services in a viewpoint neutral manner rather than forcing organizations to adopt the school's viewpoint? In prior litigation, primary and secondary public schools were forced to allow bible study groups to meet in classrooms on the same basis the school allowed other groups to use classrooms. The courts held the schools could not discriminate against religious clubs by prohibiting religious groups access to its facilities.

Here, a law school is saying a student organization may have access to its facilities ONLY if the organization agrees to abide by the schools non-discrimination policy. The law school's position seems to be the requirement is not discriminatory against any organization because all organizations must meet the same requirement. However, it's clear the requirement has a discriminatory effect. It's also absurd. Requiring a Christian organization to accept individuals as members who are opposed to Christianity is something only a college educated attorney could endorse as sensible.

vbspurs said...

Requiring a Christian organization to accept individuals as members who are opposed to Christianity is something only a college educated attorney could endorse as sensible.

You're right. I've had this very conversation with my parents when they declined joining an exclusive Palm Beach country club (which has an unwritten rule about no Jews). I totally supported their decision, but I made your argument addint that they do not receive government moneys, so they cannot be forced to integrate. People do have the right of free association.

I just think that, like this, stinks and I say this as a Christian woman.

(I'm not suggesting for a minute you agree with them, of course)

vbspurs said...

I have NO idea what word I was aiming for with "addint". Sometimes my fingers move in mysterious ways, as Carrie Prejean said to TMZ.

bearbee said...

What business do universities have approving or disapproving or giving money to groups, clubs, or organizations?

Helps to keep tuitions unaffordable and graduated students mired in debt.

David Walser said...

CLS certainly has the right to restrict its leadership and voting membership however it chooses, but that does not mean that they should have a right to have that state and federal gov't pay for it.

I am not required to pay for any group's exercise of its rights.


There are two issues here: 1)On what basis should schools dole out funds for student activities, and 2) whether schools should be obligated to grant open access to its facilities to student groups. I HOPE we're discussing the second question. (I don't want my tax money going to fund a bible study group anymore than I want it funding gay/lesbian group. I'd prefer students fund such optional activities out of their own pocket.)

Michael Hasenstab said...

The school said all official campus groups, which are eligible for funding and other benefits, may not exclude people because of religious belief, sexual orientation and other reasons.

Sure. The Muslim Student Association has quite a few Jewish members. Everyone knows that. Everyone is welcome.

And the Women's Resource Center - lots of male students are members.

Shanna said...

What business do universities have approving or disapproving or giving money to groups, clubs, or organizations?

My college had some sort of amount you had to pay toward student activities, and then the school distributed the money. Every year we had to apply for it, and it was awared based on what we'd spent the previous year (alot like govt funding, actually...if you didn't spend all your money you were penalized and given less).

AlphaLiberal said...

The Bible also says not to eat shellfish!

Do they have policies against eating shellfish? It's in the Bible so it must be the Word of God!

It also says men who touch themselves in an unclean way should have that hand cut off. Have you EVER seen a fundie male with a stump? Heretics!

ricpic said...

Is it constitutional to force any form of inclusion on an exclusive organization? If a Christian organization must accept homosexuals as governing members hasn't that organization been effectively outlawed? Doesn't freedom of association become a sham when exclusivity is denied by law?

vbspurs said...

Of course, when you hear of Fistgate (it's exactly what you think it is about), sometimes it's a little hard to condone the integration of anyone with such practises, amongst mainstream students.

Brad V said...

I hope this case causes some collateral change or damage to the student government funding and student ogranization racket at UW-Madison.

But given the Court's misunderstanding of student org. and funding matters in the Southworth cases (viewpoint neutrality looks great on paper, but it's a sham in reality), I'm not holding my breath.

The problem is this: in the funding cases, the student government/university is ostensibly trying to create a diverse marketplace of ideas by funding and registering a variety of student groups...but then it totally dilutes the individual value of all the supposedly diverse voices it funds and registers by forcing them to espouse certain ideas about non-discrimination.

peter hoh said...

If Ted Haggard were to enroll at the Hastings College of Law, would the Christian Legal Society see fit to allow him to become a voting member?

lyssalovelyredhead said...

Although I am highly skeptical of climate change theory, in fact, because of this, I joined the Environmental Law Organization at my law school. My friend but ideological nemisis who urged me to join even made me a T-shirt that said "Official Skeptic." The organization itself, of course, continued to adhere to a global warming-based platform.

My point is, the CLS (an organization whose meetings I tag along to with my boss regularly) can hold certain beliefs, but I don't think that they should deny membership to anyone who is willing to go along to get along with the group. If no gays choose to join due to the stance that homosexuality is wrong, so be it. But if someone wants to join, be a part of the group, and disagree with them on that issue, they should be allowed. (Of course, if the person is just trying to be disruptive, the org. is right to exclude.)

traditionalguy said...

This issue is where the rubber meets the road. In Churches today, the Gay members are welcome and valued, but the Church is NOT required to also revoke the scripture that identifies what is sin. Or are they? That is the question, and at this college they are required to revoke such scripture or be thrown out themselves without tolerance for the Christians.

kentuckyliz said...

Don't pretend that Christians and gays are mutually exclusive groups. There are gay Christians. Are they welcome in this Christian group?

EvilDave said...

My law school had a non-discrimination policy, but ... they had plenty of gay/women-only job recruiting events and clubs.
Apparently that non-discrimination only worked one way.

peter hoh said...

Liz, it's about holding a shared belief.

Actual practice of that belief? Well, that's where it gets fuzzy.

Traditional Guy, the Catholic Church is still free to take a stand against divorce. Several protestant denominations retain their rules against divorced clergy. I'm not aware of any successful lawsuits challenging such policies.

EvilDane, I think it's important that those groups get the same treatment. School money (especially when it's a state school) goes to events and groups that don't discriminate.

chickenlittle said...

Of course, when you hear of Fistgate (it's exactly what you think it is about), sometimes it's a little hard to condone the integration of anyone with such practises, amongst mainstream students.

Wow-just the idea of someone at the top pushing the notion of fisting on mainstream kids makes me wish for the days when brachial stumps were meted out punitively.

lyssalovelyredhead said...

"Of course, when you hear of Fistgate (it's exactly what you think it is about), sometimes it's a little hard to condone the integration of anyone with such practises, amongst mainstream students."

I realize that this is way off-topic, but can anyone explain to me why these sorts of things keep coming up where gay issues/advocates are involved? Am I overlooking this (stuff involving kids, inappropriate age differences, graphic explanations of things that it seems like teens should be able to figure out on their own if they really want to, etc.) being a just as common thing from straights?

I mean, I'm all for gay rights, but sometimes it seems like gay advocates are deliberately making it harder.

gaywrites said...

I mean, I'm all for gay rights, but sometimes it seems like gay advocates are deliberately making it harder.

Actually, this litigation (and this isn't the first case where this has come up) only involves "gay rights advocates" in the form of amicus briefs. The parties in these cases are the Christian Legal Society (a national organization with local chapters in law schools) against the law schools which have denied funding to the groups because the group's charter or constitution violates the school non-discrimination policy.

This is a classic expressive association case, from what I can tell. The first case that came to mind was when the Court held that the Boy Scouts could not be forced to accept an openly gay scoutmaster. However, on second thought, this situation appears slightly different. This appears to be a case not where the rule would compel conduct from the group but rather simply withholds benefits to the group. In the boy scout group, there was an actual boy scout leader that was gay that was trying to be in the group. This case is much earlier on, we're simply talking about conferring status on a group, there's no member that's been excluded that wants inclusion.

And from what I can tell, this appears to be a pretty neutral play on the part of the university. It doesn't appear to be a real exclusion from campus. Sure, they don't have formal recognition, but it doesn't mean they aren't allowed to meet in the law school common areas, or hold meetings at local churches. They're just not recognized as an official student group. Even if there is some infringement on expressive association rights, should universities be forced to abandon their non-discrimination policies and have their freedom to make judgments as to how they organize educational opportunities restricted because a group wants to EXCLUDE other law students?

I'm in many law student groups and I wouldn't dream of us systematically writing exclusions into our charters. A major goal of our organizations is to create communities AND to positively contribute to a broader law school community and we'd never achieve those goals by fencing people out.

vbspurs said...

I realize that this is way off-topic, but can anyone explain to me why these sorts of things keep coming up where gay issues/advocates are involved? Am I overlooking this (stuff involving kids, inappropriate age differences, graphic explanations of things that it seems like teens should be able to figure out on their own if they really want to, etc.) being a just as common thing from straights?

I have a quick opinion that unlike the mainstream sexualisation process in heterosexuals, with its attendant and in many respects strict dos and don'ts, overt homosexuality is new to these rules in society, and thus has no established boundaries within their community.

Cheers,
Victoria

Joe Giles said...

From the article:

According to a society news release, it invites all students to its meetings.

"However, CLS voting members and officers must affirm its Statement of Faith," the statement said. "CLS interprets the Statement of Faith to include the belief that Christians should not engage in sexual conduct outside of a marriage between a man and a woman."

reader_iam said...

Feel free to call me crazy (I won't care), but:

Thank God Jesus Christ didn't spend his time seeking official imprimatur and funding, much less arguing that the lack of such hampered his (or his followers') freedom of either speech OR religion, is all I can say.

Largo said...

I wonder whether unrecognized groups are permitted to post flyers for their events on campus bulletin boards (corkboards), etc.

If they are, I wonder whether they would have be provided recourse if their flyers should happen to be systematically removed or vandalized.

I hope 'yes' and 'yes'.

(I would also like to see this really tested in other clubs. In addition to a Christian seeking office in a Muslim club, imagine a registered Democrat seeking office in a Republican club.)

lyssalovelyredhead said...

gaywrites,
Hi, thanks for addressing my question, but I was (unclearly, I see now) referring to Victoria's link to "fistgate," (you really have to read the link; I can't summarize it and still keep my G rating) not the original topic.

As for the original post, I support the university's position (at least assuming that the same rules would apply to other groups, such as a Muslim law students group, and that the Christian organization is still able to exclude people who are deliberately trying to disrupt).

My question was more about why gay advocacy keeps finding itself associated with weird kid stuff, overly graphic details, in your face hyper-sexualism, etc. "Fistgate" was just another example that brought that question up in my mind.

grapp said...

Look at it like this: when the Muslims take over CA universities, as they are in the process of doing, all these bigots who like to talk about inclusiveness ... you won't hear Jack or Squat from them.

No gay person is going to insist on being part of a Muslim student organization. Gays know that Muslims would put a world of hurt on them. Gays do what they do to Christians because they know that Christians won't stone them or drop them from a tall building or do anything but watch them sorrowfully.

THe next time gays go into St. Patrick's and toss condoms, or simulate (or have) anal sex with candles with images representing the Virgin Mary or the Crucifix, let them remember that Christians will pray for them. If gays go into a mosque with a candle with a figure representing Mohammed, there'll be no coming out alive.

What's going on in this SF university is plain and simply anti-Christian bigotry which SF is well-known for.

TMink said...

This is quite silly, as most of these things are. Affirming the Biblical prohibition against sex outside of traditional marriage is more damning of straight people than gays.

There are so many more of us and most of us engaged in sex before marriage.

I think that gay folks are just pissed that they are included as sexual sinners too. OK, now I am being silly, so many homosexual people have been singled out as especially sinful by the so called Christian community that they long for a little payback. Honestly, that is understandable.

But it is still silly.

Trey

Lisa said...

I don't like that the organization is being asked to change its core beliefs. But no one has talked about what this group actually does or what the benefits of belonging are.

Does it open doors for you after school? Or do they just eat pizza and sit around talking about how great abstinence is?

I know that when I was in college there were a lot of organizations (fraternities, some of the minority engineering groups) that provided answers to tests and assignments, opened doors for jobs. I think that's unacceptable. If this group has access to jobs and they are so exclusionary with regards to voting rights and leadership positions, then it effectively shuts out Jews, Muslims, homosexuals, etc. Not acceptable.

From Inwood said...

vbspurs on another thread, which I think related here.

If not, Prof A, I'll remove it.

Inwood

**************

Vbspurs

OT: NYT's Ethicist receives a question from a tortured liberal at a law firm -- 'Is it okay to discriminate against conservatives in the hiring process?'.

"You can't make this stuff up."

***************

Back to me, Inwood:

UPDATE in NYT: Actually, the guy went ahead & did discriminate.

The NYT, er, ethicist, after establishing his PC bona fides by ritualistically bashing what he describes as "radio blowhards fulminate and Tea Party crackpots [who]threaten violence against their political foes..."

tells this (to me, typical) uncompassionate, biased Liberal

"You must abandon your mini-McCarthyism and cease denying employment to those you deem politically misguided."

Bruce Hayden said...

Keep in mind here that the law school is a state (i.e. California) and thus subject to the 1st Amdt. made applicable to the states through the 14th. That means that this regulation of the college would presumably need to me to meet Strict Scrutiny, and that is a fairly stiff test, which I do not think the regulations, as applied, meet.