The other day we were treated to the poorly reasoned opinions of culture warrior and disgraced former House Speaker Newt Gingrich on Christian Legal Society versus Martinez. Today there is a much more thoughtful discussion (by law professor Jonathan Turley), though one which reaches the same basic conclusion as Gingrich. A reminder again of the main issue:
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. The United States has taken great strides in recent years to protect people from discrimination — including hate speech, unfair hiring practices and unequal treatment under the law. But to some, such gains in equality have come at a price. Religious groups that discriminate — confining their membership to the faithful and those who share their views — say they are being penalized.
This specific controversy began at Hastings, part of the University of California, when CLS members asked to become a registered student organization. With that designation, the group could apply for certain funding, send mass e-mails to the student body and participate in an activities fair, among other perks. Hastings said no. The school concluded that because the CLS bylaws barred non-Christians, gays and non-celibate students from serving as officers or voting members, the group violated the school's ban on discrimination "on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation." The CLS could still meet on campus but could not be a registered club unless it opened its membership to all, even those who didn't subscribe to its beliefs. The group challenged the school, and lower courts supported the Hastings policy as a neutral rule applying equally to all groups.
Members of the American Philosophical Association recently debated whether it ought to post job announcements without comment for schools (usually conservative Christian ones) that violate the APA's policies on discrimination against homosexuals (and others) in hiring. As the debate was among philosophers, hilarity ensued. See that discussion here.
Turley's argument is ultimately a pragmatic one–the state's interest in fostering association ought to override its concerns about discrimination in particular cases of associating. This is not an unreasonable position, but I still think it's weak. He writes:
CLS v. Martinez is a close and difficult case. The court has to weigh fostering diversity of views vs. combating discrimination. The nation benefits when citizens form groups and advance their ideas. Tax-exempt status is even given to groups to encourage association and free speech — important pillars of our society. We cannot pick and choose between groups if we are to allow for pluralism.
The same is true with college groups. A campus offers a cradle of free speech where students can form organizations that foster the exchange of ideas and values. Supporting such groups should not be viewed as endorsing their beliefs but rather as encouraging associations. And as the court stated in Roberts v. United States Jaycees in 1984, "Freedom of association . . . plainly presupposes a freedom not to associate."
While there are strong arguments for upholding the Hastings policy, the CLS was effectively denied recognition because of its religious views – a troubling practice that could easily extend to other groups. For example, some Muslims following Wahabi principles insist that women must be covered and sit separately from men. Likewise, some Orthodox groups such as Hasidic Jews mandate areas divided by gender and require strict dress codes. To insist that Wahabi or Hasidic groups allow anyone to join, including gay and non-conforming members, would create an obvious problem.
Schools can still adopt a nondiscriminatory policy by funding either all or no student groups. That was the choice the Supreme Court gave the University of Virginia in its Rosenberger decision in 1995, after the school refused to pay for publications for religious organizations on campus: Fund all or none.
The question in the current case is where to draw the line. Schools such as Hastings are legitimately barred from discrimination in hiring and promotions. However, barring student organizations based on their religious views puts the state in the position of bestowing favored and unfavored status on groups.
We need to accept that certain forms of government support are meant to foster associations generally and should not turn on the insular views of any particular group. For example, tax exemption should aim to encourage citizens to participate in our society through groups that deepen public debate. These associations not only help individuals define their own values, they also protect the pluralism that defines our nation.
Such neutrality does not mean discrimination is a protected religious right, allowing the faith-based Ku Klux Klan, for example, to engage in public acts of racial hatred. Groups can still be punished for criminal threats, and laws still prohibit discrimination based on race, gender and national origin.
I think we end with a red herring here: no one has suggested CLS has criminal intentions, and we can suppose that the usual criminal laws apply.
The question is another one: does the university have to fund religious groups that discriminate on the basis of sex, race, sexual orientation, gender and so forth? That's what CLS wants to do. And therefore an affirmative response for CLS means that discrimination is a protected religious right.
If CLS wins, then they can engage in "public acts of discrimination" on the basis of sexual orientation (would that be "public acts of sexual orientation hatred"?): imagine the group email on the law school listserve: "come and join CLS as we pray away the gay–no gays or fornicators allowed."