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Supreme Court to Consider Whether Christian Law School Group Should be Forced to Admit Gays

In a case that will pit protections against beliefs, the Supreme Court on Monday will hear arguments from lawyers representing University of California's Hastings College of the Law and lawyers from the school's Christian Legal Society, which says allowing gays and lesbians to join goes against its core values.

Hastings The Washington Post reports:

"The college, which requires officially recognized student groups to admit any Hastings student who wants to join, may be well-meaning, says the student outpost of the Christian Legal Society. But the group contends that requiring it to allow gay students and nonbelievers into its leadership would be a renunciation of its core beliefs, and that the policy violates the Constitution's guarantee of free speech, association with like-minded individuals and exercise of religion. 'Hastings' policy is a threat to every group that seeks to form and define its own voice,' the group told the court in a brief. The case, Christian Legal Society v. Martinez, will be argued in the Supreme Court Monday morning. Hastings counters that the CLS, a national organization that seeks to 'proclaim, love and serve Jesus Christ through the study and practice of law,' is demanding special treatment. It wants the college's official stamp of approval and the access to benefits and student activity fees that come with it, but it will not commit to following the nondiscrimination policy that every other student group follows."

Some background in the case: "A Christian group was part of the landscape for years. But when it decided to affiliate with the national CLS, it was told the group's ban of gays and nonbelievers in leadership positions violated the college's policy and its insistence that all Hastings students be allowed to join any club. The CLS sued. A federal judge sided with the school, saying its blanket policy did not single out the religious group because of its views. The U.S. Court of Appeals for the 9th Circuit affirmed."

(image flickr user frankfarm)

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  1. Interesting case. My thought is this is different from the Boy Scouts case where the court ruled they could kick out gay scout leaders. In this instance it appears that the CLS is saying they don't have to abide by the schools anti-discriminatory policy - which is true; however they don't have a constitutional right to be affiliated with the school. If the court ruled in the CLS, that would also mean that a white supremacist group could be afforded the same rights. I don't see the court going down that path. The reason the court is taking the case is because there is an appellate split. The 7th Circuit a few years ago ruled in favor of CLS; now the 9th Circuit is ruling against them. The 7th Circuit is Illinois, Indiana and Wisconsin.

    Posted by: Mike | Apr 18, 2010 11:28:17 AM


  2. I'm willing to admit I don't know all that much about the finer points of the law, but it seems to me that if the group wants to keep out LGBT students, they simply have to turn down funding from the school (meaning no free rooms for meetings on campus, free advertising, etc.). If they want to receive school funding, they have to follow school rules. To my mind it appears fairly simple. Nobody is preventing them from meeting or spouting their views. But the school is under no obligation to fund their speech.

    Posted by: JT | Apr 18, 2010 11:45:29 AM


  3. If the Christian group wants to discriminate, it's their right to do so, no one is stopping them. They just have no right to school resources, benefits and funds to advance their bigotry. The school has its own rights, and they include establishing rules for the protection of students from invidious discrimination. If they want to have a discriminatory group, let them start it at a like-minded church.

    Posted by: RWG | Apr 18, 2010 11:50:41 AM


  4. Let me make one thing clear from the outset: I am an atheist and view the big 3 religions as big, stinking piles of silliness and ignorance. But I did want to comment that the CLS policy of excluding gays seems to assume that all the other students who are members of the group are free from sin by virtue of their heterosexuality. In other words, every member of the CLS has surely committed some sin according to the Bible, yet they are excluding gay students because they have somehow elevated homosexuality to a sin of a special status despite the fact that it isn't mentioned anywhere in the Ten Commandments.

    While I usually side with the interests of private groups and support their right to discriminate against anyone, this case is totally different due to one important difference: the University of California Hastings College of the Law is supported in part by my tax dollars. If the CLS wants to be an officially recognized group and receive benefits from the U.C. system along with student activity fees, then they need to follow the University of California's non-discrimination policy. And if they can't do that, then they should not be allowed to be officially recognized by the University of California school system.

    Posted by: peterparker | Apr 18, 2010 11:53:46 AM


  5. I think SCOTUS will follow the 9th Circuit on this and rule for the law school.

    But if they rule for the Christian Legal Society, it will be a crystal-clear sign that the current Court will decide against the plaintiffs in Perry v. Schwarzenegger. The question then will be whether Olson and Boies are humble enough to admit they don't have a chance and decide not to take their case to the Supreme Court. Of course, it may not be their choice to make. If Judge Walker rules for the plaintiffs and the 9th Circuit affirms that ruling—both of which are very likely—it will be the haters' choice whether to appeal to SCOTUS. And you can be damned sure they will.

    Posted by: 24play | Apr 18, 2010 11:58:53 AM


  6. 5-4, Scalia, Thomas, Roberts, Alito and Kennedy against the school and for the CLS.

    Posted by: jamal49 | Apr 18, 2010 12:05:12 PM


  7. This is a very similar situation to what we had with our Christian Fellowship on campus -- they associated with the national Intervarsity Christian Fellowship, then got in trouble when they rejected a gay candidate for leadership, because that goes against the college nondiscrimination policy. You really have to choose: either go with the national antigay group and disassociate from the college funding or take college funding along with college policies of nondiscrimination.

    Both religion and sexual orientation are covered by our college policies and state law, so it's always interesting when they come into conflict.

    It's also interesting that I have never heard of a case where a gay group wanted to discriminate on the basis of religion, it's always the other way around.

    Posted by: KevinVT | Apr 18, 2010 12:50:57 PM


  8. It's pretty ironic that a Christian group wants to exclude people, which goes counter to Christ's fundamental teaching of love one another. That's why these so called Christian groups are truly clueless on so many levels.

    Posted by: BobC562 | Apr 18, 2010 12:53:21 PM


  9. I must add a common disclaimer – I do not support bigoted student groups but there is a larger Constitutional question that deserves some consideration.

    There are many Hasting College of Law student organizations and they all have the same membership blurb in their bylaw documents which affirms the school policy to admit ANY Hastings law student into the organization. Does that make any sense? Does anyone here really think the Iranian group has Jewish members even though the college prohibits such discrimination? (Yes, those student organizations do exist at this college).

    Should ethnic, religious, and politically affiliated student groups who claim to provide a support system for specific ethnic, religious, and political thought be forced to admit students who do not share the ethnicity, or religious and political thought of the organization? No student organization at this college is allowed a Constitutional right to free association. Does school policy trump the Constitution? Why should taxpayer money override the Constitution?

    This policy can work both ways: Should the Gay Hastings student organization accept anti-Gay students who then vote the organization out of existence? What is the point of organizing a group for a purpose if you have to accept members who do not believe in the purpose?

    Posted by: Mike11 | Apr 18, 2010 1:00:32 PM


  10. I read an excerpt from the 7th Circuit decision which supported the CLS. Basically, the 7th Circuit bought into the love the sinner hate the sin argument. CLS is claiming that gay people can join, they must pledge to abstain from homosexual conduct; the 7th circuit bought into this since straight people have to pledge not to have sex outside of marriage, etc. Therefore, CLS isn't "excluding" gay people, they are just saying you can't engage in homosexual acts. This rationale however is flawed in that they are treating homosexuality as a lifestyle and not as an immutable characteristic. I would think that the decision made in Lawrence v. Texas would hold sway here.

    Posted by: Mike | Apr 18, 2010 1:10:32 PM


  11. I'm sure the Christian group is also rejecting any one who is Jewish, takes the lord's name in vain and masturbates. Christian groups are very even handed in their discriminatory policies.

    Posted by: Johnny U. S. Marine | Apr 18, 2010 1:11:04 PM


  12. Mike11,

    Your analogy fails. There are Iranian Jews.

    Posted by: 24play | Apr 18, 2010 1:20:43 PM


  13. Er, Mike11, Ever been to LA? The majority of the Iranian-Americans there are Jewish.

    Posted by: Jane Roe | Apr 18, 2010 1:33:59 PM


  14. @24Play

    I relied on the well known hatred of the Iranian government towards Jews and generalized it to the Hastings Iranian student group – I know nothing about the Hastings Iranian student group and I admit the analogy is not valid.

    My point is simply that every student group at Hastings must accept ANY law student into their group but does a group have a Constitutional right to determine who is a member of that group?

    Posted by: Mike11 | Apr 18, 2010 1:54:09 PM


  15. The Roberts court will absolutely side with the CLS on this one ... and in the process they will open a door to a future case in which they will allow any discrimination, any time, by anyone who says that's what his religious freedom requires.


    Posted by: K in VA | Apr 18, 2010 2:18:07 PM


  16. Mike11,

    Yes, any private group has a right to set its own membership requirements. That's not at issue here. What is at issue is whether an officially recognized student organization at Hastings has to abide by the school's nondiscrimination policy. They do.

    The Christian Legal Society is welcome to discriminate against whomever they choose—so long as they remain private and unaffiliated. But if they want to be an officially recognized student organization at the law school—and accept funding from general student fees and no doubt have other benefits of being officially recognized—then they have to abide by the school's rules, including their nondiscrimination policy.

    It's really quite simple.

    Posted by: 24play | Apr 18, 2010 2:28:46 PM


  17. Why would any self-respecting gay person want to belong to The Christian Legal Society? They would be the true masochists in the S&M bar. I'm all for freedom of religion, but I'm even more for freedom "from" religion. Keep it away from me. Anyway, Winnie the Pooh is a much better fairy tale book than the Bible.

    Posted by: JimSur212Jim | Apr 18, 2010 4:43:01 PM


  18. @24Play

    I hate being the Devil’s advocate for these screw heads but damn…

    I think that membership is THE issue and the reality is that student groups are organized around race, ethnicity, sexual-orientation, and ideas (religious and political).

    The only difference between the CLS and certified Hastings student groups is that certified groups publicly accept the policy – I suspect that private decisions are made all the time about who gets to be a member of a student group.

    I believe the simple fact is that the school doesn’t want a right-wing religious group but I do not know how a taxpayer funded institution can deny funding to a group that represents so many people.

    I can’t stand the wing-nuts but this issue cuts both ways and I hope a legal precedence develops that protects us when we are not in power at a publicly funded school such as Hastings and forces our enemies to accept our existence.

    Posted by: Mike11 | Apr 18, 2010 5:43:33 PM


  19. No Mike11. You're mistaken. The issue at hand is whether CLS has to abide by the school's nondiscrimination policy if it is an officially recognized student organization. It's right there in Andy's original post.

    CLS is welcome to proceed as an unofficial student organization and discriminate against whomever they like—but they won't be able to partake of student activity fees doled out by the school (or other benefits). Or they can become an officially recognized student organization and follow the school's policies.

    They have a choice to make. If they want the benefits of being officially affiliated with the school, they must also accept the responsibilities.

    The case is not about freedom of association.

    Posted by: 24play | Apr 18, 2010 6:41:52 PM


  20. While I agree that the CLS is free to implement a discriminatory policy if they wish, they should do so at the risk of forfeiting their status as an school-recognized organization.

    Nevertheless, the point Mike11 raises is a good one though. This situation raises the question whether any group of people could "attack" a student organization by joining it en masse and then voting it out of existence or substantially changing its mandate.

    Posted by: LightningBoalt | Apr 18, 2010 7:33:48 PM


  21. @24Play

    If you skim through the CLS vs. Martinez petitioner and respondent briefs you will see that this case is being argued on the First Amendment. (from WAPO links to the briefs)

    The CLS argues that ‘Private expressive associations have a right to exclude those who do not share the group’s beliefs’. In other words, they want the freedom to associate.

    The University argues that ‘the 1st Amendment does not require states to subsidize discriminatory practices’. In other words, Hastings wants to tell CLS they must accept Gay students even if CLS does not want to associate with those students.

    CLS sucks. I get it. I just can conceive of a world where Gay student groups get boarded by anti-Gay students and the group is destroyed because student groups cannot discriminate against anyone who wants to join. Can I believe religious nuts would be so mean - Yes.

    Posted by: Mike11 | Apr 18, 2010 8:11:25 PM


  22. 24PLAY has described the case the way my (admittedly non-lawyer) mind sees it: they either need to be an unofficial group who is free to discriminate or an official group that must abide by school discrimination policies. I don't see ambiguity here.

    The minimal risk of a group being "attacked" by anti-forces and voted out of existence, while a question to consider, doesn't alter the fundamentals of the case as far as I'm concerned. That's really a separate issue, and in the unlikely event such a thing happened, it seems like there should be ways to address it.

    Though Mike11 wasn't suggesting this, I've heard people falsely compare a gay person attempting to join a Christian group to an anti-gay person attempting to join a gay group. It's a bogus equivalency since a Christian gay person could sincerely want to be part of the Christian group whereas there would be no sincere reason for a homophobe to want to be part of a gay group.

    Posted by: Ernie | Apr 18, 2010 8:14:31 PM


  23. Should a LGBT student group have the right to ban open homophobes from their organization?

    Posted by: JimSur212Jim | Apr 18, 2010 10:48:20 PM


  24. http://www.ourexam.com/HP0-J36.html

    Posted by: lambrownll | Apr 18, 2010 11:34:38 PM


  25. @MIKE11: It's quite clear: follow the nondiscrimination policy or you don't get a school endorsement. If you want school support, you agree to school rules. Otherwise, you can exercise your right to *not* associate to your heart's content.

    (Then again, is disassociation even a Constitutional right? It seems like that would make virtually every nondiscrimination law Unconstitutional; those laws mandate that you deal with a group whether you like it or not. After all, why, then, can't a pro-Confederacy group disassociate itself with blacks? Why can't any "pro-family" corporation distance itself from gays?)

    (The hijacking issue is really incidental; presumably, that's already possible now. It's really just a means to distract from the issue at hand.)

    @JimSur212Jim: LGBT groups should be able to ban someone for orientation-based discrimination; that rejection would not be in opposition to the school's policy and, in fact, would reinforce their commitment to it.

    (Unfortunately, you're being disingenuous by using "homophobe" as the criterion rather than what that criterion manifests itself as. Doing the latter makes it quite clear what the correct choice is.)

    Posted by: Patrick Garies | Apr 19, 2010 5:55:28 AM


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