Free exercise of religious discrimination

By David Waters The Supreme Court heard arguments in a Christian student group’s discrimination case against a public university law … Continued

By David Waters

The Supreme Court heard arguments in a Christian student group’s discrimination case against a public university law school’s anti-discrimination rules, and the justices seemed sharply divided on the matter. No wonder. There’s no good way to split this baby.

The case: A public law school’s denied legal recognition to a Christian student group because the group discriminates — it bars non-Christians, gays and non-celibate students from serving as officers or voting members. Legal scholars like Jonathan Turley of George Washington University say the case, Christian Legal Society v. Martinez, “has the potential to resolve a long-standing conflict between two of the most cherished American traditions: equality and nondiscrimination on one hand and the free exercise of religion on the other.”

There’s a good reason those conflicts between cherished American traditions are long-standing. Can they ever be resolved?

The free exercise of religion includes the freedom to include or exclude others who believe differently. Southern Baptists, for example, have a right to exclude women or gays or Mormons from the ranks of their clergy. Shouldn’t a group of Christian students have the right to exclude non-Christians, gays and non-celibate students from serving as officers or voting members?

On the other hand, the Supreme Court has said the Constitution supports laws against discrimination based on a person’s personal status or beliefs — gender, race, ethnicity and religion. Shouldn’t a public university (the University of California’s Hastings College of Law) have a right to require its official student groups not to discriminate?

The student group says its members are being discriminated against solely because of their religious beliefs. But what if their religious beliefs required them to exclude women or racial minorities or anyone over age 30 from their group? Does the free exercise of religion cover every conceivable form of discrimination?

Justice Sonia Sotomayor seemed to focus on that point: “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?” she asked.

The law school argues that the government (a la tax-supported public universities) has a right and a duty to forbid discrimination on the basis of race, color, religion, national origin, ancestry, disability, age, sex, or sexual orientation. But don’t most groups of religious believers — by definition — require some form of discrimination by its members against non-believers?

Justice Antonin Scalia seemed to focus on that point: “It is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership,” Justice Antonin Scalia said. “To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That’s crazy.”

Should a tax-supported school be able to exclude a student group that discriminates? Should a religious student group be able to discriminate and exclude?

Personally, I think the First Amendment is first for a reason. I’d rule that free speech, freedom of religion and freedom of assembly trumps all other rights and freedoms. But one reason I went into journalism instead of law is so that I don’t have to make these decisions. I only have to write about them.

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  • thebobbob

    This is actually a step in the right direction. The CLS is arguing that gays should be discriminated against because of the Religious beliefs of the CLS, not on the basis of ‘public indecency’ or some other morality argument.Science is demonstrating more and more clearly that homosexuality is less about choice than biology (genetics, development, endocrine disruption, etc.). If the only argument that they can muster is The Bible, then they’re giving up on the ‘choice/lifestyle’ argument and will eventually lose.If they were true Christians they would know that Hate eventually loses to Love.

  • YEAL9

    Homosexuality – once again some observations that might influence the Supreme Court:The general population to include many of the voters in California, rightly or wrongly, find gay sexual activities, “unioned” or not, to be “yucky” and unusual and typically associate such activity with the spread of AIDS which is of course wrong. Said AIDS epidemic in the gay male community at the start of the AIDS crises will always remain unfortunately a stigma on the gay community.And after all of this rhetoric, gay “marriages” simply simplify and somewhat sanitize what are still “yucky” acts caused by a variant gene(s) and/or hormone imbalance. One wonders if stem cell research will find a cure?? Hmmm, would the embryos formed from the sperm of gay guys and the eggs from gay gals make more ethical embryos for this and other types of research?? “Impressive list of gay people who did not let their yucky defect get in the way of being a contribution to society. Unfortunately, they were not able to contribute to the evolutionary process of DNA improvement via procreation. From below, on top, backwards, forwards, from this side of the Moon and from the other side too, gay sexual activity is still mutual masturbation (“Google it”) caused by one or more complex sexual defects. Some defects are visually obvious in for example the complex maleness of DeGeneres, Billy Jean King and Rosie O’Donnell. Of course not all having these abnormal tendencies, show it outwardly as alluded to in the following synopsis:From Wikipedia:” No simple cause for sexual orientation has been conclusively demonstrated, and there is no scientific consensus as to whether the contributing factors are primarily biological or environmental. Many think both play complex roles.[1][2] The American Academy of Pediatrics and the American Psychological Association have both stated that sexual orientation probably has multiple causes.[3][4] Research has identified several biological factors which may be related to the development of a heterosexual, homosexual or bisexual orientation. These include genes, prenatal hormones, and brain structure. Conclusive proof of a biological cause of sexual orientation would have significant political and cultural implications. [5]”

  • WmarkW

    It’s common for campus clubs to have a bylaw that officers (and sometimes voting members) must subscribe to the core beliefs of the group’s charter, so that a bunch of right-wingers don’t all join the Gay and Lesbian Student Association and turn it into a Convert-the-Gays organization (Scalia’s point).However, I don’t think there’d be a precedent for a pubic university to let a Christian organization let it define “Christian” by behavioral adherence to doctrinal beliefs. Creationists and Episcopalians are Christians if they call themselves that. Letting a club decide “WE say who’s a Christian” is the step they take outside the protection of non-discrimination laws.

  • FarnazMansouri

    It’s common for campus clubs to have a bylaw that officers (and sometimes voting members) must subscribe to the core beliefs of the group’s charter, so that a bunch of right-wingers don’t all join the Gay and Lesbian Student Association and turn it into a Convert-the-Gays organization (Scalia’s point).No lesbians or gays may be deprived membership in any club. The university views homophobia, sexism, racism, religious prejudice, etc., in the same light.

  • Sajanas

    I’ve known plenty of straight people who were in LBGT organizations because they supported the cause, or members of different ethnicity joining say… The East Asian Mixers that would happen from time to time. I personally, an ex-Lutheran Atheist, attended both Catholic Masses and Jewish services on campus (more than once for Hillel, since they had free food). None of these organizations tried to keep people out, and I don’t see why some Christian organization should either. I mean… do they merely seek to minister to themselves? One would think they would like having people of other religious orientations to talk with about their beliefs. Or that atheists will inundate them? Or that they should be forced to elect an atheist officer?

  • Secular

    I have been following Scalia, ever since he got on the bench. I am firmly convinced after 25+ years of his adjudication that he is the biggest bigot to ever get on to the bench. This abhorrent neanderthal rules on the basis of his religion. There isn’t a single instance of discrimination that he did not like. Why this vile excuse for a human being is adulated as some kind of intellectual is beyond me. This SO# claims to be a strict constructionist, but did not have any qualms intervene in Bush V Gore. Then the most he could say in defending his ruling was “get over it”. I guess he was ashamed of his ruling that he didn’t even defend it. Nah the bast@#$ was too egotistical, that’s why he thought he didn’t need to defend it. I sincerely hope the old goat croaks during summer recess so O can put another liberal on the bench.

  • cassie123

    The way I see it, the group, if truly Christian, should encourage ALL students to attend regardless of sexual orientation etc. However, when it involves a voting member/officer…that is a different issue entirely. It makes no sense to me to force a group that stands for a particular belief to elect people that are not of that belief to office. If you were to do that, then there can be no true organizations on campus. Would Kappa Kappa Phi (I totally made this name up as I was never involved in Greek life in college) have to allow Phi Gamma Gamma (I made this one up too if you can’t tell) members on their board? No, but Phi Gamma Gamma people can go to their parties. How can a Phi Gamma Gamma person lead the Kappa Kappa Phi group if they have no vested interest in the organization? It just doesn’t make sense. The same logic applies to this case. Plus…I am not sure why someone who is so against the beliefs of the organization would want to vote or hold office for that group.If there are going to be organizations on campuses then you would have to expect that those organizations are going to align themselves as a group — a separate organization based on their focus, whether that be Christianity, Bhuddism, International groups, etc.Ultimately, this is a tough issue. I understand the school’s position since they want to be seen as completely aniti-discrimination…but who are they discriminating against if they are against the Christian organization? Christian beliefs…those students rights to hold those beliefs. By forceing them to admit officers who are not in line with that organization…the school is in affect saying “you do not have the right to practice your religion”. Ultimately, someone is going to feel discriminated against…I think the freedom of religion trumps the issue.

  • acebojangles

    Oh how terribly Christians are discriminated against in the US! Seriously though, Hastings law isn’t forbidding this group from existing, they just don’t want to officially condone them. Why not just be Christlike instead of screaming and whining your way to official recognition by a government supported university?

  • drbill21

    The solution to this so-called dilemma is simple. In the same way that publicly funded universities cannot discriminate on the basis of speech, neither can they discriminate on the basis of associational preferences.The university’s only obligation is to ensure diversity OF groups, not diversity WITHIN groups.So, to answer Sotamayor’s question: Yes, the school has to accept any group, no matter how offensive it’s associational preferences (i.e. discrimination) might be.Equal protection and freedom of association and religion require that all groups be treated equally .As Turley correctly noted, it is the school’s job to fund diversity of associations, not dictate a uniform associational code that results in all groups looking exactly the same.