U. S. Supreme Court Photo By Brody Levesque
By Brody Levesque (Washington DC) Apr 19 | In a what appeared to be a highly divided session of the nation's High Court today, Associated Press Supreme Court correspondent Jesse Holland wrote after arguments were heard that the Supreme Court seemed to split sharply on whether a law school can deny recognition to a Christian student group that won't let gays join, a case that could determine whether nondiscrimination policies trump the rights of private organizations to determine who can — and cannot — belong.
In arguments tinged with questions of religious, racial and sexual discrimination, the court heard from the Christian Legal Society, which wants recognition from the University of California's Hastings College of the Law as an official campus organization with school financing and benefits.
The case poses a quandary for a court that has recognized both the ability of public universities and schools to control the use of their facilities and funds and the right of religious groups to select members based on their beliefs. It comes as religious groups have become more active and litigious in demanding a place in the public forum of free speech.
In an article published in Sunday's Washington Post, Post Legal Correspondent Robert Barnes reported:
Christian groups have brought suits against similar policies across the country, from the University of Florida to Boise State University. "In every case . . . either the courts have ruled for the religious student group or the university has settled or mooted the case by revoking its unconstitutional policy," the Christian Legal Society brief asserts.
The controversy also raises questions about who needs protection. CLS lawyer Michael W. McConnell, a former federal judge and director of the Stanford Constitutional Law Center, likens the underdog status of Christian groups at liberal law schools such as Hastings to the way gay rights groups might have felt on a Southern campus years ago.
"One of the things I find kind of pleasantly ironic about the briefing in this case is we find ourselves relying on about a dozen cases that involve gay rights groups in universities," said McConnell, who was appointed as an appellate judge by President George W. Bush. The other side, he said, relies on decisions and legislative acts that helped Bible clubs.
The Christian group requires that voting members sign a statement of faith. The group also regards "unrepentant participation in or advocacy of a sexually immoral lifestyle" as being inconsistent with the statement of faith. Hastings, located in San Francisco, turned them down, saying no recognized campus groups may exclude people due to religious belief or sexual orientation.
Holland reports that in today's court session that Justice Antonin Scalia remarked:
"It is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership. To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy."
Other justices questioned where a ruling for the Christian group would lead.
"Are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?" asked Justice Sonia Sotomayor.
No, McConnell said. "The stipulation is that they may not exclude based on status or beliefs. We have only challenged the beliefs, not status. Race, any other status basis, Hastings is able to enforce."
"What if the belief is that African Americans are inferior?"Justice John Paul Stevens said.
"Again, I think they can discriminate on the basis of belief, but not on the basis of status," McConnell said.
The UC Hastings Law School's attorney Gregory Garre pointed out that it requires the same thing from all groups that want to operate on campus. Garre, who was the solicitor general for the Bush administration, pointed out that the Court ruled earlier that the Bob Jones University in South Carolina could not ban students who believed in interracial dating and still receive federal funds.
"Here we have a group that wants to exclude members on the basis of sexual orientation," he said.
Chief Justice John Roberts said that was only Garre's interpretation.
"It's a religious-oriented group that wants to exclude people who do not subscribe to their religious beliefs," he said.
Justice Samuel Alito questioned whether Hastings has allowed other groups to exist on campus that did not allow all comers to join. But Garre pointed out that the Christian Legal Society had stipulated in the lower courts that Hastings did have an all-comers policy, and that registered student organizations must accept all law students as voting members regardless of status or belief.
If they didn't believe it was true, "they shouldn't have stipulated" to that fact, Garre said.
Alito asked Garre what the practical effects of Hastings' policy will be for groups.
"Say there is a small Muslim group; it has 10 students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say First Amendment allows that?" Alito said.
Garre said that has never happened to a group.
"CLS obviously thinks this is a real threat," Alito said. "Now, what do you propose that they do?"
Garre said the members who are now outnumbered can leave the group.
"If hostile members take over, former members of CLS can form CLS 2?" Alito asked skeptically.
"The Christian group could require knowledge of the Bible to join, Garre said. "There is a fundamental difference between excluding people on the basis of merit and excluding people on the basis of status or belief that has no connection to merit," he said.
The Christian Legal Society has chapters at universities nationwide and has sued other universities on the same grounds. It won at Southern Illinois University, when the university settled with the group in 2007 and recognized its membership and leadership policies.
A federal judge in Montana said in May 2009 that the University of Montana law school did not discriminate against the Christian Legal Society when it refused to give the group Student Bar Association money because of its policies.
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