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Can A Christian Student Group Bar Gays From Becoming Members And Still Receive Public Money ?

by @ 1:35 pm on April 19, 2010. Filed under Education, Freedom of Religion, Freedom of Speech, Individual Liberty

That was the issue before the Supreme Court this morning:

The high court was to hear arguments Monday from the Christian Legal Society at the University of California’s Hastings College of the Law. The Christian group said its constitutional freedoms of speech, religion and association were violated when it was denied recognition as a student group by the San Francisco-based school.

The group has made this argument at several universities around the nation with mixed results. The high court’s decision could set a national standard for universities and colleges to follow when Christian and other groups that want to exclude certain people apply for money and recognition from the school.

Hastings said it turned the Christian Legal Society down because all recognized campus groups, which are eligible for financing and other benefits, may not exclude people due to religious belief, sexual orientation and other reasons.

The Christian group requires that voting members sign a statement of faith. The group also regards “unrepentant participation in or advocacy of a sexually immoral lifestyle” as being inconsistent with the statement of faith.

The 30-member Hastings group sued in federal court after it was told in 2004 that it was being denied recognition because of its policy of exclusion. Federal courts in San Francisco, including the 9th U.S. Circuit Court of Appeals, rejected the group’s assertions that the law school’s policy violated its constitutional rights.

According to a society news release, it invites all students to its meetings.

“However, CLS voting members and officers must affirm its Statement of Faith,” the release said. “CLS interprets the Statement of Faith to include the belief that Christians should not engage in sexual conduct outside of a marriage between a man and a woman.”

Based on the initial reports, it’s clear that the justices were sharply split during today’s argument:

Supreme Court justices seemed to split sharply on whether a law school can legally deny recognition to a Christian student group because it won’t let gays or non-Christians join


Chief Justice John Roberts and Justice Samuel Alito questioned the school’s lawyer sharply, saying that being forced to admit someone who doesn’t share their beliefs was a threat to the group. But Justices Ruth Bader Ginsburg and Sonia Sotomayor pressed the group’s lawyer on notion that if they can ban gays, other groups can legally ban women and minorities.

SCOTUSblog has an excellent summary of the facts, arguments, and issues at stake in the case that is well worth reading.

As for the merits of the case, it seems to me that there are two very good arguments on either side of the case.

First, as Cato’s Roger Pilon states, there’s the argument that the Christian Legal Society should have the right to determine it’s own rules for membership:

The case, Christian Legal Society v. Martinez, arose after the Hastings College of Law, a large public law school in San Francisco, denied CLS the same recognition and support it granted to some 60 other student organizations on the ground that CLS, contrary to the Hastings nondiscrimination policy, discriminates by requiring that its members and officers abide by certain key tenets of the Christian faith. In a word, in the name of anti-discrimination, Hastings, a government institution, is discriminating against CLS, which is simply exercising its speech, religious, and associational rights.

Cato filed an amicus brief in the case, written by Richard A. Epstein, professor of law at the University of Chicago. To barely summarize our argument, freedom is at the core of the American vision, including freedom of private association. But association has two sides: the right to associate with willing others; and the right not to associate with others, for whatever reason, which amounts to the right to discriminate. Public institutions, by contrast, belong to all of us, so they may discriminate only for reasons closely connected to their missions. Since individuals will associate only if they think themselves better off by doing so, social welfare is improved when government protects private rights of association while itself studiously avoiding discrimination.

The argument for assocaition rights is a good one an it appeals to me as a libertarian. However, I think it ignores the fact that the real issue in the case is not whether the members of the CLS have the right to associate with each other, but whether they have a right to receive funds from a public university while adhering to blatantly religious criteria for membership:

[R]eligions also use situations like this for fundraising purposes, so I expect it has been a HUGE cash cow. They also are used for propaganda purposes — in this case, further demonizing and de-humanizing gays and pushing the totally false objection to gay equality that it will mean religious groups can no longer discriminate against gays. Actually, thanks to the separation of church and state, religions always will be allowed to discriminate against gays all they want — AS LONG AS THEY ARE NOT USING GOVERNMENT MONEY TO DO IT AND/OR ARE NOT DOING IT ON GOVERNMENT PROPERTY. In fact, in this case, the Christian Legal Society IS being allowed to use government land and buildings for their meetings and to discriminate against gays as much as they want — they just are barred by the Constitution from getting a cut of the Hastings’ student fees to do it.

If you think the Christian Legal Society SHOULD get a cut of student fees — money exacted from the students by force, just like taxes — then does that mean you are OK with the reverse situation of having government health insurance programs pay for abortions?

The last time I checked, there was no such thing as a First Amendment right to receive government funds to promote your religious beliefs. Hastings isn’t saying the CLS cannot exist, it’s simply saying that it cannot receive public funds for what is clearly a religious organization pursuing a religious purpose.

I don’t see anything wrong with that restriction.

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