Supreme Court takes on "all comers"

The Supreme Court handed down a decision on Monday that dealt with the gay rights and religious freedom by looking at how non-discrimination clauses can come into conflict with the freedom of association. We've looked at Christian Legal Society v. Martinez before here, here, here and here. Hastings College of Law in California recognizes a wide variety of student groups -- things like La Raza and College Republicans and the like. But there's one group that they won't recognize. They refused to sanction a chapter of the Christian Legal Society because it requires its members to uphold traditional Christian doctrine about sex (i.e. only in marriage, no homosexuality, etc.). At the time they denied the group registration, the school said it was because the chapter discriminated against people on the basis of religion and sexual orientation, both mentioned in the non-discrimination policy.

CLS said that this violated their freedom of religion -- while the school said that they couldn't select officers who were dedicated to a particular set of religious beliefs, the policy allowed other groups to select based on political, social or cultural beliefs. (The court proceedings show numerous examples of student groups being registered even though they required support of particular beliefs.) Indeed, back when the case began, Hastings admitted that its nondiscrimination policy "permits political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs."

But at some point after that admission, administrators put a new spin on it. They said that their anti-discrimination policy means that groups must accept everyone who wants to join. They called this their "all comers" policy. When they announced this interpretation in 2005 or so, they asked student groups who had already been cleared but were in violation of this policy to revise their policies to come in line with the requirement. The revision in how they enforced the policy is also worth mentioning because of another reason. While the non-discrimination policy's wording says that it applies to everything at the school, the "all comers" interpretation is used only for student groups. The school doesn't discriminate in its hiring but neither does it hire everyone who applies. The school doesn't accept all students who apply, etc., etc.

All that to say that the decision deals with the "all comers" interpretation rather than the anti-discrimination policy in general. Whether such anti-discrimination policies violate religious freedom wasn't really discussed.

And yet many media reports obscured this important -- if difficult to convey -- distinction. Here's how Southern California Public Radio put it:

The court also was split between liberals and conservatives in its 5-4 ruling against a Christian student group that sought official recognition from the University of California's Hastings College of the Law.

The Christian Legal Society requires that voting members sign a statement of faith and regards "unrepentant participation in or advocacy of a sexually immoral lifestyle" as being inconsistent with that faith.

But Hastings said no recognized campus groups may exclude people due to religious belief or sexual orientation.

Again, that was what Hastings said back when this case started but their argument changed over time. And regardless, the court didn't rule on the constitutionality of anti-discrimination policies based on specified grounds, such as race, religion, gender and sexual orientation.

In his dissent, Justice Alito explains it this way:

Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming. An animal rights group was not obligated to accept students who supported the use of animals to test cosmetics. But CLS was required to admit avowed atheists. This was patent viewpoint discrimination. ... It is no wonder that the Court makes no attempt to defend the constitutionality of the Nondiscrimination Policy.

I know it's a tricky distinction, but it's an important one. A quick hat tip to Washington Post staff writer Robert Barnes for getting this crucial distinction right in his lede.

Most media coverage was totally fine, actually. Reporters had to respond to a huge number of cases, some of them involving Or what about this tidbit from the San Francisco Chronicle:

The school was backed by educational and civil rights groups, while religious and conservative organizations filed arguments in support of the Christian Legal Society.

Except that this isn't how the groups broke down. It is true that conservative organizations generally sided with the Christian Legal Society. But there were religious groups who sided with the school and civil rights groups that sided with the organization. It would be better to use modifiers to describe what type of educational, religious and civil rights groups were on one side or the other. The American Jewish Committee sided with the school, while a coalition of Muslim, Jewish, and Sikh groups sided with the law group.

And civil libertarians were not all on one side either. In fact, most of what I read today came from civil libertarians who were worried about the decision. Even groups that generally don't support public funding of groups said that if it exists, the government shouldn't be in the business of decided which groups have appropriate speech and which groups don't. Richard Epstein summarizes some of the main civil libertarian concerns in his Forbes essay "So Much For Religious Liberty."

Here's how prominent civil libertarian Wendy Kaminer at The Atlantic begins her essay against the ruling:

"The era of loyalty oaths is behind us," Justice Kennedy perversely declares, concurring in a 5 - 4 decision allowing a public university to deny official recognition to a religious group that excludes from membership students who will not disavow homosexuality or pre-marital sex. What's perverse about Kennedy's statement? The Court's ruling in Christian Legal Society v Hastings is more like an endorsement than a rejection of official loyalty oaths. It upholds state power to condition the benefits extended to private associations on their willingness to conform to an official ideology - in this case a particular view of sexual morality.

Via the award-winning Godblog, I found this link to a Huffington Post piece by Student Press Law Center attorney Adam Goldstein. While he said the case was a difficult one to decide, the rationale the majority found for the school "could end up doing more violence to student expression rights than any decision in the last 22 years."

There are so many interesting media angles that I hope we'll see explored. Since the "all comers" interpretation found favor with the court, will we see a rush of policy changes to ensure that traditional Christian groups will be shunned?

There was also a lot of discussion about how this ruling could lead to chaos. For instance, will you see a bunch of traditional Christians join the campus gay rights groups, take it over and wreak havoc? It could, but in all likelihood a group under siege would be able to reach out to the larger campus community. Unless, that is, they are a disenfranchised minority with unpopular or politically incorrect views.

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