The U.S. Supreme Court has been barraged with more than three dozen legal briefs, including several from higher-education associations, in a case that could have a far-reaching impact on colleges that have struggled to reconcile their nondiscrimination policies with religious student groups’ refusals to admit gay and lesbian students.
The case centers on the question of whether the University of California’s Hastings College of the Law acted legally in denying official recognition to a group of students who belonged to the Christian Legal Society, a national organization that excludes gay men, lesbians, and others whose behavior it regards as sexually immoral.
The arguments in the briefs make clear, however, that the case involves much more than a disagreement over college policy. The dispute has brought several constitutional rights into conflict. Academic freedom, religious freedom, freedom of association, and equal protection under the law all are described in one brief or another as threatened.
The court is scheduled to hear oral arguments in the case, Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Leo P. Martinez et al., on April 19.
The justices could avoid the need to issue a ruling by accepting the law school’s argument that they had erred in taking up the case at all, because of a lingering dispute over a key factual matter—the specifics of the nondiscrimination policy at issue.
If, however, the court decides the case, its ruling could drastically change colleges’ nondiscrimination policies and how the institutions determine which student groups merit official recognition and financial support.
Similar conflicts have popped up at a long list of other colleges—including the flagship universities of Idaho, Illinois, Oklahoma, and Wisconsin—where students have tried to set up Christian Legal Society chapters. Other groups with a religious focus, including the national Christian fraternities Beta Upsilon Chi and Kappa Upsilon Chi, the Christian Medical and Dental Associations, and Commission II Love Outreach Ministries, said in friend-of-the-court briefs that they had similarly bumped up against nondiscrimination policies.
Dire Predictions
Both the Christian Legal Society and the Foundation for Individual Rights in Education, which has submitted a friend-of-the-court brief on the society’s behalf, warn that a Supreme Court decision in Hastings’ favor would have a devastating impact on unpopular organizations, leaving them vulnerable to being infiltrated and hijacked by students who oppose them. The law school and some of its supporters argue that such warnings have no basis in reality, because there is no record of student groups’ being subverted in such a manner on campuses with nondiscrimination policies.
A friend-of-the-court brief filed by several national and campus groups representing lesbian, gay, bisexual, and transgendered law students argues that a large share of such students still encounter discrimination at law schools, and that efforts to remedy the problem would be hindered if the schools could not enforce policies against discrimination.
Two federal appeals courts have reached sharply different conclusions after taking up similar disputes. The U.S. Court of Appeals for the Ninth Circuit, whose decision is being appealed to the Supreme Court, upheld a U.S. District Court’s ruling that Hastings’ denial of official recognition to the Christian Legal Society had “no significant impact” on students’ ability to express their views. But the U.S. Court of Appeals for the Seventh Circuit blocked Southern Illinois University at Carbondale from applying a similar policy to the Christian Legal Society, declaring that the policy probably infringed on the group’s freedom of expressive association.
Fight Over Facts
Through the 2003-4 academic year, the Hastings student group called itself the Hastings Christian Fellowship, was open to anyone, and was allowed to operate just like any other student group at the San Francisco law school. What caused it to run afoul of the administration was its decision in 2004 to become affiliated with the Christian Legal Society, which denies membership to anyone who unrepentantly advocates or participates in sexual conduct the society regards as immoral.
The law school’s subsequent withdrawal of recognition of the group as a registered student organization left it ineligible to receive grants from student fees, to participate in an annual student-organization fair, to call itself a “chapter” of the Christian Legal Society, or to communicate with the student body through the law school’s newsletter, campus bulletin boards, or other college-sponsored channels. The group responded by suing, with its cause being taken up by lawyers from the Christian Legal Society’s national office and the Arizona-based Alliance Defense Fund.
The briefs submitted to the Supreme Court show that the two sides are in serious disagreement over the specifics of the policy that led to derecognition. The Christian Legal Society’s brief argues that the college initially told the local group that the campus antidiscrimination policy bars registered student organizations from having belief- or behavior-based membership criteria in which the beliefs are religious or the behaviors sexual—a requirement that, the brief says, leaves religious organizations distinctly burdened. Only later, the brief says, did Hastings officials say their policy simply requires registered student organizations to be open to anyone.
The law school’s brief argues that the only policy it has had—and the only policy considered by the lower courts as a result of stipulations by both sides—is one requiring registered student organizations to be open to all. It argues that the other side, in asking the court to consider the constitutionality of a narrower prohibition against religious or sexual discrimination, is trying to rewrite the factual record to attack a straw man, and that the Supreme Court should drop the case if the decision to hear it was based on the Christian Legal Society’s characterization of the policy at issue.
Matters of Conscience
The Christian Legal Society’s brief argues that its members’ freedom of religion and association are violated by the law school’s requirement that registered student groups accept gay and lesbian students, and that members’ right to free speech is infringed by their having to either forgo being able to speak as a campus organization or take in students they expect to challenge or water down their message.
The law school’s brief denies that its all-comers requirement for student groups discriminates against religious organizations. The policy is viewpoint-neutral, the brief says; any number of groups, including those for gay students, might have to take in students who disagree with their beliefs. Moreover, it argues, the policy actually protects free speech, by allowing students to express unpopular viewpoints without being expelled from a student group. It says the Christian Legal Society remains free to use campus facilities and to communicate with students through means that are not college-sponsored, such as social-networking sites on the Internet.
Hastings Outlaw, a registered organization for gay, lesbian, and bisexual students, intervened as a defendant in the Christian Legal Society’s lawsuit at the district-court level and remains an intervening party in the case. Its brief echoes many of the arguments made by the law school, emphasizing its belief that the Christian Legal Society has no right to demand financial support from student fees while remaining off-limits to some of the students from whom the money is derived.
In an interview, Michael C. Martin, a first-year law student and member of Hastings Outlaw’s Board of Directors, said his group got involved in the case because it feared that the law school would give in to pressure from the Christian Legal Society and offer it an exemption from the nondiscrimination policy, as most law schools that have been similarly challenged have done. Instead, he said, Hastings Law has earned praise from his group by sticking up for the interests of its members.
“I don’t believe in funding discriminatory organizations,” Mr. Martin said. “For me, personally, that is a matter of conscience and a personal choice.”
Picking Sides
Of the 39 friend-of-the-court briefs filed in the case, 22 back the Christian Legal Society. Most come from religious or conservative groups, including the U.S. Conference of Catholic Bishops, which argues that the court should distinguish between discrimination based on sexual orientation and efforts to criticize immoral conduct.
Hastings Law is backed by 16 briefs. Among them, one filed by the American Council on Education and 13 other higher-education associations, including the Association of Jesuit Colleges and Universities, argues that the Supreme Court must let colleges set their own policies for student groups if it is to preserve the institutions’ First Amendment right to academic freedom. Ten public universities or university systems have joined in defending viewpoint-neutral discrimination policies.
A brief from the Baptist Joint Committee for Religious Liberty and the Interfaith Alliance Foundation does not take a side but urges the court to avoid authorizing public support for religious organizations or allowing public colleges to curtail the speech of private religious groups.
States’ attorneys general are split. Those representing Maryland, Massachusetts, New Jersey, and Vermont have filed a brief warning that states may choose not to provide financing to student groups if required to subsidize discriminatory behavior. Fourteen other states, including Alabama, Colorado, Michigan, and Pennsylvania, have filed a brief arguing that the Hastings policy violates the First Amendment.
