The group of non group members

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."

7 thoughts on “The group of non group members”

  1. John, good overall points. I'm not crazy about the way you ended it.
    What I fail to understand with all of these cases is why would a homosexual want to join a group/club/church that insists that their behavior is immoral. The same people that call these groups homophobic are the same people that then want to join them.
    I guess in the end it doesn't really matter if a gay person wants to join the group; what matters is if he/she is allowed to join. I can see how this is discriminatory. This whole debate reminds me of the "don't ask, don't tell" policy. In the end, however, both have really not that much with reality.

  2. I was referring to Turley's conclusion–he obscured over the central issue–if we financially sponsor groups that enforce such policies in membership, then there's nothing stopping the KKK student organization.  As to why people want to join groups they having nothing to do with, people are strange. 

  3. While my first instinct is to agree that publicly funded groups should not be allowed to exclude individuals who are required to contribute funds (I see this a usury), there is one worry I have regarding this issue:
    This cannot stop implicit exclusion and therefore simply drives such practices underground (even when legitimate.)  For example, what if a woman's group were formed on a mostly male campus?  There is a completely rational and understandable reason why a group of people might want to escape the stress and drama of hook-ups and relationships for a few hours a week by gathering in gender exclusive groups.
    Now imagine that a few guys wanted to join their group because they wanted to meet the women in it?  Or what if a few (or even just one) lesbian women started joining and their flirtatious natures made several of the straight women there uncomfortable (as the whole point was to have fun while avoid being hit on?)  Is this discriminatory?  The organization has been given no legal means by which to enforce any sort of membership standards.  And in fact, even if they are not publicly funded by the school, the claim could be made that the meet in school buildings and as such have no right to reserve them without being a school sanctioned club.
    Yes this a discriminatory group, but discrimination can never be completely done away with, and when legal restrictions are put in place to end discrimination, they must either be applied circumstantially (I don't need to explain why that's a bad idea) or they simple enforce which types of discrimination are allowed as permitted by the institution.  I agree, we should label this as hate (it is) but to restrict it legally will simply give a morally tenable position to its proponents by allowing them to say (with even a bit of truth) that they are on the side of defending freedom.

  4. Argh, stupid spell check.  Okay I didn't mean usury, but oddly, the feeling of the phrase remains the same.

  5. It seems to be something of a slippery slope to claim that allowing non-adherents to a group’s core beliefs to be electable to office leads to “forcing associations to alter their identity” (re: Brief of Amici Curiae States of [15]). 
    As I understand it, people are elected to office; and if you haven’t got the votes, you’re not elected.  The system works to filter out non-adherents from reaching positions that would allow them to guide and influence the group’s message.  Allowing anyone to join would seem to be no real threat at all; but rather insisting that one sign a credo might seem to be an irrelevant push to force a immaterial point. 
    The quote, “Freedom of association . . . plainly presupposes a freedom not to associate” pretty much says the same thing! Do we think a homosexual is going to join a group hostile to his sexuality, and that this same group might accidentally or purposefully elect him to office? “To insist that Wahabi or Hasidic groups allow anyone to join, including gay and non-conforming members, would create an obvious problem.”  Really? I don’t think so — there is another side to wanting to be a part of a group, and that is *not* wanting to be a part of a group.  The option being open to join is not a real invitation for anyone to join!  Please.
    Then there is the obvious mis-chaining of conclusions: “barring student organizations based on their religious views” is an unsupported conclusion because the “views” are not the issue.  And the other argument (also made by the collection of Attorneys General as well as Turley) that we are at risk of both having our ideas homogenized and of defeating pluralism if we insist equal opportunity (to join), which we so easily confuse with equal success (once joined).  There are so many other group-interaction factors that come into play, and none of them are at risk by opening up membership, even perfunctorily.
    BTW, just for fun, I went to the U of Utah (assuming it is a State-funded entity), read its Mission Statement, and then looked for a Student Group with Gay, Lesbian, or Homosexual in its title or description.  Nothing.  Hmmm (trying to no jump to discriminatory conclusions).

  6. Say John, would you delete the idiotic Microsoft code at the top of my post?  Thanks!

  7. I like how the author uses "discrimination" and "religious belief" interchangeably. Nice little rhetorical two-step there.

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