Religious freedom to exclude

JUST LAW AND RELIGION Michael Kessler The Supreme Court handed down its long-awaited opinion in Christian Legal Society Chapter of … Continued


Michael Kessler

The Supreme Court handed down its long-awaited opinion in Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez (CLS). The decision may go largely unnoticed since it arrived on the first day of future Justice Kagan’s confirmation hearings and, McDonald v. Chicago, another decision released the same day, is gaining much more attention after it extended the Second Amendment to limit state gun control laws. Yet the CLS decision hits all the fault lines of the clash between non-discrimination requirements and claims about religious freedom. Welcome to the future of the so-called “culture wars.”

The decision is complicated and I’ll confess to a lingering unease about each of the four opinions.

Likewise, while the case involves religious freedom and non-discrimination issues, the majority opinion sidesteps most of these major issues. Instead, Justice Ginsburg crafted a constrained examination of whether or not Hastings could legitimately limit the Christian Legal Society’s access to the limited public forum it had created (that is, to be recognized with status as a registered student organization), since CLS had refused to open its membership to all students.

At a simple level, the case is straightforward: a small group of students at a state-funded university wanted to form a religiously-based association (associated and chartered by a national organization) and have it recognized as a student organization, thereby opening access to funds (very minimal), use of space, access to channels for official communications, and the right to use the Hastings “branding” and logo.

As a religious group formed for Christians of an evangelical persuasion, they shockingly wanted to associate around a common set of beliefs (the CLS national organization has a statement of faith). As a morally conservative organization, the requirements included restrictions on sexual activity. As the majority described:

CLS chapters must adopt bylaws that…require members and officers to sign a “Statement of Faith” and to conduct their lives in accord with prescribed principles…Among those tenets is the belief that sexual activity should not occur outside of marriage between a man and a woman; CLS thus interprets its bylaws to exclude from affiliation anyone who engages in “unrepentant homosexual conduct.”

[Hastings] is committed to a policy against legally impermissible, arbitrary or unreasonable discriminatory practices. All groups, including administration, faculty, student governments, [Hastings]-owned student residence facilities and programs sponsored by [Hastings], are governed by this policy of nondiscrimination. [Hasting’s] policy on nondiscriminationis to comply fully with applicable law. “[Hastings] shall not discriminate unlawfully on thebasis of race, color, religion, national origin, ancestry,disability, age, sex or sexual orientation.”

The right of educational institutions to create non-discrimination policies, while contested, has generally been upheld as long as they meet certain criteria. Under Justice Ginsburg’s pen, the doctrine is clear and she quickly judged that what Hastings did is without doubt constitutional. As she stated, the Court has consistently prohibited public universities from excluding a student organization’s access to a school-sponsored forum (like being a registered student organization) on the basis of their viewpoint. Reiterating this point a number of times, Justice Ginsburg summarized established doctrine: “the State may not exclude speech where its distinction is not reasonable in light of the purpose served by the [limited public] forum…nor may it discriminate against speech on the basis of . . . viewpoint.”

The problem was, CLS was a student group wanting recognition as an official organization while associating around a set of beliefs and mores. Some of those principles inherently discriminated on the basis of an issue that was specifically forbidden by the nondiscrimination policy.

The Court refused to consider the legitimacy of the non-discrimination policy itself, thereby preserving the right of educational institutions to define neutral and objective nondiscrimination policies that ensure equal access.

Instead, Ginsburg narrowed in to specifically address whether it was permissible for the school to require RSOs to “accept all comers” and not limit membership on the basis of belief. As Justice Ginsburg stated, “Hastings interprets the Nondiscrimination Policy, as it relates to the RSO program, to mandate acceptance of all comers: School-approved groups must ‘allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs.'” This, according to the majority, is deemed a “reasonable” limitation that does not amount to viewpoint discrimination. At an abstract level, this result seems reasonable.

Yet, in this particular instance, problems persist. Apparently, it was only after the lawsuit was filed that the so-called “all comers” requirement was imposed, formulated (for the trial deposition) as part of the law school Dean’s interpretation of the non-discrimination policy and not previously explicitly stated as binding on any RSO.

And, as Justice Alito pointed out, up through 2005, a wide range of student organizations had requirements in their bylaws limiting participation to those who adopt specific beliefs:

the record is replete with evidence that, at least until Dean Kane unveiled the accept-all-comers policy in July 2005, Hastings routinely registered student groups with bylaws limiting membership and leadership positions to those who agreed with the groups’ viewpoints. For example, the bylaws of the Hastings Democratic Caucus provided that “any full-time student at Hastings may become a member of HDC so long as they do not exhibit a consistent disregard and lack of respect for the objective of the organization as stated in Article 3, Section 1.” …The constitution of the Association of Trial Lawyers of America at Hastings provided that every member must “adhere to the objectives of the Student Chapter as well as the mission of ATLA.” A student could become a member of the Vietnamese American Law Society so long as the student did not “exhibit a consistent disregard and lack of respect for the objective of the organization,” which centers on a “celebrat[ion] [of] Vietnamese culture.” Silenced Right limited voting membership to students who “are committed” to the group’s “mission” of “spread[ing] the pro-life message.” La Raza limited voting membership to “students of Raza background.”

These facts will fuel the fires of concern that Hastings had it out for the conservative Christians. The possibility of “pretextual hostility” against a religious group is here not improbable–indeed, the case is remanded back to the lower court to deal with this claim. The evidence is significant, at least as Justice Alito depicts it.

Worse still, was that after CLS was denied status as an RSO, and thus shut out of formal affiliation, they were in principle still allowed to associate, act as a group, and use facilities (if space was available). All would have been technically well, except, as Justice Alito strenuously pointed out, every time the group requested space, the Director of Hastings’ Office of Student Services, who had previously denied their request for affiliation, apparently sat on the email request until after the date they requested had passed. I’ve been in universities most of my life, so it is not at all shocking that a university administrator didn’t promptly answer an email, especially to a student, but the combined effect of the denial and the shut-out certainly exacerbated the situation and understandably exacerbated a tense situation.

But the deeper problems this case confronted will continue to fuel fires of discontent and conflict. Any statement of a shared sets of beliefs will necessarily divide student bodies. Is the University constrained to only recognize those groups that espouse those collective opinions that are banal enough to not run afoul of policies meant to promote equal access and toleration? What kind of an robust and plural academic community is that? What society will flourish–even survive–if our associational ties are so weak and dispirited?

More troubling still, for me, is the implication that religious groups (or any group founded around common principles) who take seriously their commitments–(and let me plead the caveat: I don’t share these mores and beliefs)–may be locked out of association in their student environments if those beliefs are unpalatable to others. Surely the educational mission of any law school is only fully robust when persons of similar persuasions are given the formal opportunity to come together to support each other under the banner of their particular commitments, even while they participate in a larger, diverse community. That’s true accommodation of plural opinions, beliefs, and conscience-based practices. I disagree with some of their positions, but my freedom and safety are much more threatened by stifling the group’s existence than by their forming a recognized group and participating in the community.

I wouldn’t particularly want to pay for what I consider others’ discriminatory practices, but in this case it’s not a funding issue (since the funding available to student groups is de minimis). Far more important is whether the student group can gain the formal recognition that they are a legitimate part of the community.

And I’m not convinced by Justice Ginsburg’s “Facebook changes everything” argument. One way she tries to soften the blow for the group’s denial as an RSO is to point out that with the advent of “substantial alternative channels that remain open for CLS-student communication,” the need for “official” channels that comes with RSO status is mitigated. The CLS group can exist apart from formal RSO status, and the students can informally host a Facebook site and yahoo message board for broadcasting CLS activities and communicate with the Hastings community just as effectively. This may be true to an extent. The reality is, many students don’t read official emails. But that’s hardly a constitutionally-viable support for denying access. Facebook has not relegated the demands of the First Amendment to history, at least not in this regard.

At the very same time, this particular CLS group wanted to form an association that had as part of its inherent identity a set of restrictions on membership that necessarily excluded other members of the community. This was in direct conflict with the school’s nondiscrimination policy. It would be hard to be sympathetic to a group of students wanting formal recognition for a Hastings College of Law KKK chapter. Some want to draw parallels between ethnic/racial discrimination and discrimination regarding sexual identity. I tend to think these arguments are strong and not yet adequately met with counterarguments. And the underlying fact remains: if the non-discrimination policy is constitutional, then any RSO seemingly would have to abide, as the majority has concluded.

This result is required given current case law, even if the Court had taken seriously CLS’s claim that their religiously-motivated beliefs and restrictions were especially (uniquely?) restricted by the Hasting’s “all-comers” policy. As Justice Ginsburg said:

Hastings’ requirement that student groups accept all comers, we are satisfied, “is justified without reference to the content [or viewpoint] of the regulated speech.” The Law School’s policy aims at the act of rejecting would-be group members without reference to the reasons motivating that behavior: Hastings’ “desire to redress th[e] perceived harms” of exclusionary membership policies “provides an adequate explanation for its [all comers condition] over and above mere disagreement with [any student group’s] beliefs or biases.”

Did you catch that? What’s at issue is not the special status of the motivations and beliefs–religious or otherwise–and how the nondiscrimination requirements may pose harmful burdens on CLS. Instead, it’s whether or not the neutral and generally applicable requirement that any RSO not act in an exclusory fashion is permissible. Take a moment to ponder this irony: Justice Ginsburg, the liberal, is citing back to the conservative minority the nefarious principle that Justice Scalia himself penned in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)! Religiously-motivated acts, regardless of the free exercise clause of the 1st Amendment, do not exempt one from neutral and generally-applicable laws. The burden imposed on the CLS students–to act in spite of their religious beliefs so as to not discriminate–is merely incidental and therefore an acceptable burden. That is the Scalia-Smith principle, with the act-belief distinction, applied in a slightly different context. Ginsburg might have simply said: As Justice Scalia told us in 1990, religion isn’t a trump card, so get over it.

And therein lies the deeply distressing result of this case, whichever way it came out. In the messiness of diverse communities, real commitments to tolerance, equality, and openness are going to collide headlong with real commitments to specific beliefs and practices that exclude other members of the larger community. So long as associations and religious communities are formed through actual commitments, then some of us will be excluded from these groups. Unless we all commit to preserving and respecting each others’ freedoms, regardless of whether we agree (or despise) their opinions, beliefs, and practices, there are no winners.

Such freedom would require those who personally condemn looser sexual mores to tolerate the persons in their midst who believe and act differently, even while arguing for alternative practices and principles. And such freedom would require those with more progressive views to tolerate and be open to those who disagree on the basis of different starting principles and beliefs.

Freedom is uncomfortable, especially when it requires openness to those views, beliefs, and practices we find foreign or wrong. However, the alternative is stifled liberty and stunted lives. May the human tendency to tyranny in its many forms be stamped out by the spirit of freedom. Even freedom that wants to express itself through associations bonded by belief.

Happy Fourth of July.

By Michael Kessler | 
June 28, 2010; 5:42 PM ET

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Just Law and Religion

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  • WmarkW

    The principles that: 1) a student group may require members to act according that group’s stated purpose and beliefs (e.g. a bunch of right-wing Christians can’t take over the Muslim Association); 2) a university may require non-discrimination; are both laudable.What happened here is that a behavior (gay sex) is being treated as a demographic. You can’t discriminate against someone for being a Muslim; you can for not coming to work on Friday. The university is saying that people who have gay sex are protected from discrimination by a group that disapproves of it.

  • Eric12345

    WMARKW – Does the CLS’s membership guidelines merely prohibited gay sex, or do they prohibit membership of those who believe that sex outside of traditional marriage is acceptable? I ask because the majority opinion quoted above leads me to believe the guidelines prohibit the belief that sex outside of marriage between a man and a woman is acceptable. From the opinion, it sounds like it’s not just the act they’re concerned with, but the belief. I guess we’d have to actually look at the CLS’s guidelines to be sure.

  • Chris64

    “Freedom is uncomfortable, especially when it requires openness to those views, beliefs, and practices we find foreign or wrong.”I couldn’t agree more, which is why I am very happy the Supreme Court decided CLS must be open to all students, including those it finds “foreign and wrong” — at least if it wants the official recognition and support of a public university. Tolerance is a 2-way street.

  • Chris64

    WMARKW et al — There is no difference between discriminating between a “gay person” and “a person who has gay sex.” Either one violates anti-discrimination laws that protect gay people from being fired, etc.

  • WmarkW

    An employer can’t discriminate against Orthodox Jews. But the Muslim Student Association doesn’t have to admit them to membership if they reject the association’s goals.

  • farnaz_mansouri2

    ONce in a class, I had two recent immigrants who became friends. One was from Israel, the other from Bangladesh. Both were suffering from culture stress, so I suggested to them that they join student clubs–the Jewish Students’ Association (for the Israeli student)and the Muslim Students’ Association (for the Bangladeshi student).They both attended meetings at both clubs, and both decided to join the JSA. Why? They liked it.

  • WmarkW

    They both attended meetings at both clubs, and both decided to join the JSA. Why? They liked it.

  • areyousaying

    Why do religious organizations think they can use public funds and facilities to exclude others?Their churches are rich enough to rent space off campus and fund themselves. Why should taxpayers fund the perpetuation of their intolerant fairy tales?

  • WmarkW

    Why should taxpayers fund the perpetuation of their intolerant fairy tales?

  • Eric12345

    AREYOUSAYING – Why do non-religious organizations think they can use public funds and facilities to exclude others?

  • schnauzer2

    Posted by: Eric12345 “AREYOUSAYING – Why do non-religious organizations think they can use public funds and facilities to exclude others?”Now for groups outside of that campus, since the churches don’t contribute to those public funds, they have no right to claim them.

  • BenInOakland

    This analysis misses one fundamental point: if this were not about gay people, but about ANY other identifiable group, this whole question would be moot. IJustice Stevens defined the problem nicely: “In the dissent’s view, by refusing to grant CLS an exemption from the Nondiscrimination Policy, Hastings violated CLS’s rights, for by proscribing unlawful discrimination on the basis of religion, the policy discriminates unlawfully on the basis of religion.”If a person, gay or not, who is a Christian and gay supportive wants to join this group, the y can’t. “You’re not Christian if you’re not OUR KIND OF CHRISTIAN.” In other words, it’s not really open even to Christians,ONLY to a rigidly defined kind of Christianity that excludes gays. So now the question is: Is a public university required to disburse funds to what is essentially a private club that deliberately excludes pre-determined outsiders and does so on the basis of religious belief?? The CLS, as is often the case with Christianistas like this, want special rights– not surprisingly, what they always accuse gay people of when we demand to be treated equally. Hyposcrisy is such a conservative Christian virtue. They are trying to control by exclusion the private environment they are in, AND demanding access to funds that seek to provide for an entirely public student body. We’re not here to fund your own Special Private Friendship Circle. Do that on your own dime. Whatever happened to “render under Caesar that which is Caesar’s”?

  • moemongo

    I just love to see how the religious fanatics make a mess of their own lives. Must be a real hell living with those people. Peace is not in their world.

  • Daniel84

    I agree with the author. “Neutral and generally applicable” policies could discriminate not only against religious groups, put pretty much anyone with minority opinion. This is because the definition of “neutral” evidently doesn’t mean that it won’t negatively affect groups of people associating. I bet CLS didn’t feel the policy was “neutral.” Another example. To limit marriage as between a man and a woman could be termed “neutral and generally applicable” but many believe the practice isn’t neutral at all.

  • Eric12345

    SCHNAUZER2 – Kessler points out various instances in which non-religious groups restricted who could join their membership yet still gained access to public facilities and funding.

  • farnaz_mansouri2

    Michael Kessler,You write, “The decision is complicated and I’ll confess to a lingering unease about each of the four opinions.”Ditto. Confess I’ve only skimmed through the case and the opinions. My guess is the decision is important, and it will be interesting to see where it’s cited in future.I suspect you can do much more by way of an analysis–given your credentials. I would be interested in reading it, should you decide to pursue it.I would imagine that we are on opposite sides of the spectrum with regard to the rights of gays. I do not believe that religious institutions that discriminate against gays, women, or anyone else should benefit from nonprofit status. I do believe that gay American citizens must enjoy the same rights as all other Americans, including the right to wed. Farnaz

  • mjk62

    Farnaz–I want:A) maximal individual liberty (including for individuals of various sexual identities to not be constrained by majorities imposing regulations on behaviors that do not harm (notwithstanding 1) some peoples’ “ick” response–that doesn’t count as real harm in my book; nor 2) some peoples’ offense that traditional morality is subverted. Neither of these two are sufficient bases to impose legal regulations on people like consenting adult homosexuals)B) maximal associational and religious liberty (including for individuals to group together, even if we find their beliefs and opinions difficult, hateful, unfathomable)

  • Digoweli

    What you fail to mention is that the ban against homosexuality is a ban against a person as a sinner. It demonizes them. None of the groups that you mention demonize the people they don’t accept. for example, if the La Raza group did that, then it would also be up for the same judgment. It is the statement that homosexuals are BAD people for BEING homosexual. It isn’t a ban against the act of sex. It’s a ban against sin as they define it and that makes the person a BAD person and OK to be condemned, discriminated against, beaten up, killed. It’s the Rudolf Streicher principle against the Jews. They are BAD people therefore its OK for the GOD people to protect themselves against them. As for Scalia, the case to be made against the Smith judgment has to do with crossing the bar on an illegal activity. I happen to disagree with that judgment but as far as I can see, the Ginsburg judgment is consistent with the view of the court in Oregon vs. Smith. It was a much greater problem in the case against the Yarok where the government allowed private loggers permission to build a road through the Yarok’s thousand year old “church”. Only an international outcry and a boycott stopped that atrocity from happening. But the Yarok weren’t saying that the loggers were bad for logging. Only for building a road through the place that had constituted and was the basis of their spirituality from the time they had become Yarok people.

  • Sajanas

    As an atheist, I have gone with friends to campus Jewish and Catholic events, and been warmly welcomed in each. This Christian organization’s stance is stupid for two reasons, namely that when you get public money, public non-discrimination laws apply, and that if you are interested in showing your religion to outsiders, the last thing you want is a door check for card carrying Christians.By all means be bigoted, but this coddling of religious discrimination that got started by Bush’s backing of religious charities (which can and do discriminate on employment… look at the Catholic school that fired an atheist teacher for something she wrote in a personal blog) has to stop. Otherwise we could end up funding the KKK and the Nation of Islam.

  • areyousaying

    Exclude on your on dime with your own kind on Sunday. Primp, pray, posture, pretend and pimp poor old Jesus but never ask yourselves if your Christ is OK with your exclusion. It’s your religious freedom to do so, but do it on your own dime.

  • farnaz_mansouri2

    Michael Kessler,Thank you for your reply. You write:Farnaz–I want:A) maximal individual liberty (including for individuals of various sexual identities to not be constrained by majorities imposing regulations on behaviors that do not harm (notwithstanding 1) some peoples’ “ick” response–that doesn’t count as real harm in my book; nor 2) some peoples’ offense that traditional morality is subverted. Neither of these two are sufficient bases to impose legal regulations on people like consenting adult homosexuals)B) maximal associational and religious liberty (including for individuals to group together, even if we find their beliefs and opinions difficult, hateful, unfathomable)Would you describe your position as “libertarian”?I wonder if the distinctions you maintain hold up in the event. The problem concerns state funding and nonprofit status. Ultimarely, legal disabilities visited upon gay Americans will end. Once that occurs, I cannot understand how, in good conscience, we can grant state funds or allow nonprofit status to any group, religious or other, that discriminates against gays. I believe the same to be true of women, however, and yet we continue to allow religious institutions the right to discriminate against women and gays on our money. It is one thing to allow “freedom of association,” another to fund it.But the problem goes beyond freedom of association, does it not. If a religious institution wishes to bar women from the clergy, no problem. The problem, for me, is that taxpayer dollars should play no part in that, and they do, when such institutions are granted nonprofit status.I should add that I do not believe religious institutions should be tax exempt–do believe that “church” and state must separate. It is about time.If a religious club wants to discriminate against gays, it has the right to do so, despicable though that may be in my view. That state funds should be granted such an entity is another matter.This does, not, however, solve the problem of the opinions in the current case, which, as you say, are troubling–all of them. They are aporetic, “symptomatic,” are they not.

  • farnaz_mansouri2

    Digoweli,”What you fail to mention is that the ban against homosexuality is a ban against a person as a sinner.”Yes, agree. Well put.

  • WmarkW

    Could an Orthodox Jewish club require its members to keep Kosher laws? Obviously, there’s some variety of interpretation there, but if their group’s charter said they exist to promote the practice of Orthodox Judaism and required all members to make a sincere effort (i.e. feel repentant when failed) to keep the laws as practiced in modern times, could they expel someone who considered it a personal lifestyle choice to eat a cheeseburger every day and ignore Saturday sabbath?Those are behavioral choices along the lines of practicing unrepentent gay sex.

  • farnaz_mansouri2

    Mark,Catholics and fish on Friday? The Almighty or Non gave to thee ein brain. Please to use.Thanks.Farnaz

  • mbc7

    It is clearly the dumbest Supreme Court decision in a decade. As noted in the record, under the Law schools rules, Jews could join a moslem group, outvote the moslem members and destroy their organization. Likewise, Christians can take over and destroy an Agnostic student group. Groups must be able to have membership requirements in line with their goals. None of the rules at issue would cost a non-profit its tax exempt status (501.c3 or c7). The only rule the University should even consider imposing is the group’s policies not violate the IRS rules for tax exempt status.

  • good-bad-n-ugly

    ………. .

  • kwires

    What is missed here is that you are, even at Hastings still free to have a Christians only or straights only or Repub only legal group. To be recognized as an official student organization with all of the rights and privileges that this entails, then you have to have open enrollment because it is a State funded University. That is a pretty small hurdle. If you don’t want the rules and restrictions, then don’t take the money, access and association with the University.

  • good-bad-n-ugly


  • WmarkW

    Mark,Also, is there a point to your post?If so, then singling out a prohibition against unrepentant gays amounts to telling them their doctrines are wrong.