Legal News

A Post About Sex, Religion, Law School, and the Supreme Court

By Ashby Jones

The Supreme Court on Monday agreed to hear a fascinating case involving freedom of religion and non-discrimination policies in public schools. From where we sit, what makes the case — Christian Legal Society v. Martinez — so compelling is that both parties to the case elicit our sympathies.

The backdrop, with a little help from this Washington Post story: The Christian Legal Society at the U.C. Hastings College of the Law in San Francisco several years ago began requiring its members to sign a statement of faith. The statement says that anyone who “advocates or unrepentantly engages in sexual conduct outside of a marriage between a man and a woman” cannot become a member of the group.

Shortly thereafter, the school denied the group “official status,” meaning it was ineligible for such perks as meeting space or a cut of the school’s student activities fee. The Christian group sued, arguing that a host of its members’ rights were violated. But the Ninth Circuit backed the university.

The Supreme Court will review whether a public university may refuse to officially recognize a campus Christian group because it bars gays and nonbelievers from its membership.

A coalition of campus religious groups had urged the Supreme Court to take the case, saying “state university officials may not condition a religious group’s access to campus facilities on relinquishment of its religious identity.”

Americans United for Separation of Church and State, which supports the university, said in a statement that the court should make it clear that groups seeking public funding and official recognition on public college campuses must be open to all.

“If the student religious group wins, it will mean some students will be compelled to support clubs that won’t even admit them as members,” said the Rev. Barry W. Lynn, executive director of Americans United.

Click here for the petitioner’s brief in support of the court granting cert; here for the school’s brief in opposition.

In our opinion, the interests at issue in the case are big and compelling, and we don’t envy the job of the justices, having to conclude whether a public university’s right to support nondiscrimination policies trumps a student group’s right to exercise its religious beliefs, or vice versa.

First, consider how the petitioners frame the question before the court:

Whether the Ninth Circuit erred when it held, directly contrary to the Seventh Circuit's decision in Christian Legal Society v. Walker [citation omitted], that the Constitution allows a state law school to deny recognition to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.

Well said, we think.

Now, consider how the respondents’ frame the issue:

Whether a public university law school may require student organizations, as a condition of granting such organizations access to school funding and other benefits, to comply with a viewpoint-neutral nondiscrimination policy.

Yup. Makes sense to us.

So who’s gonna win this one? First Amendment scholar and UCLA prof Eugene Volokh thinks the cards should fall Hastings’ way.

Writes Volokh:

[T]he question is not just whether the groups have a constitutional right to expressive association - it's whether the government has a constitutional obligation to support this right. And there, I think, the answer is no.

A few posts later, however, George Mason’s David Bernstein puts forth a different view.

Given that the right of expressive association is implicated, so there is a First Amendment interest here, then the university is engaging in viewpoint discrimination. And I think in that case, the student group would have a very plausible and hopefully winning argument before the courts that they cannot be denied funding for exercising their expressive association rights when other groups are permitted to decide who their members and officers should be.

Interesting stuff. LBers, any thoughts?

Full post as published by Law Blog - WSJ.com on December 08, 2009 (boomark / email).