Banning gays or banning beliefs? (updated)

Let's face it: Religion is complicated. Now, what happens when you combine the complexities of religious doctrine with the intricate, and at times agonizing, nature of the hair-splitting debates that take place in the U.S. Supreme Court? Only the brave enter that kind of maze.

So pause, if you will, and join me in a moment of sympathy, or even pity, for the journalists who were charged with the task of capturing the essence of the high court's arguments over Christian Legal Society v. Martinez, case No. 08-1371, in the 666 words or so allowed in the typical daily news report.

This was tricky stuff. Consider, for example, the cutline under the picture -- a tiny portrait of Michael W. McConnell, the lawyer for the Christian Legal Society -- that ran in the online report in the New York Times. It offered this information:

Michael W. McConnell represents a group that bars gay members from its leadership.

Now, that's an improvement over the media reports that have claimed that the group bans gays from being members or even from attending meetings. However, the author of the cutline needed to talk to reporter Adam Liptak, because of the most interesting aspects of the short Times report was its inclusion of the following snippet of the court's arguments:

The student group, the Christian Legal Society, bars "unrepentant participation in or advocacy of a sexually immoral lifestyle," which it says includes "all acts of sexual conduct outside of God's design for marriage between one man and one woman, which acts include fornication, adultery and homosexual conduct." A public law school, Hastings College of the Law in San Francisco, part of the University of California, withdrew official recognition from the group after it refused to comply with a school policy that forbids discrimination on various grounds, including religion and sexual orientation.

At Monday's argument, Justice Stephen G. Breyer wondered what the group would have to say about a prospective member who said, "I don't believe in sexual relationships before marriage, and that's why I want to work for homosexual marriage."

Michael W. McConnell, the group's lawyer and a former federal judge, said taking that position would be enough to disqualify the student.

"If he does not agree with the organization on the point of marriage, then he can be excluded from leadership in the group," Mr. McConnell said.

Did you follow that? Breyer had accepted the CSL's argument that it was not banning all gays from being members, or even leaders. Instead, the group had banned gays who could not in good conscience sign its doctrinal statement.

But note that the justice wanted to know the status of a hypothetical gay member who was willing to accept half of the doctrinal statement's content, but not the other. The society was saying that it would welcome gays who, even if struggling with issues of sexual behavior, could honestly say that they were repentant and supported the centuries of Christian tradition stating that marriage was between a man and a woman and that sex outside of marriage was a sin. But what, Breyer asked, about a gay who believed that sex outside of marriage was sinful, but, precisely because of that belief, was an advocate of gay marriage?

Now, in light of the content of this story, is that Times cutline accurate? No, it isn't. The society is willing to accept gays as members and as leaders, if they sincerely believe the religious doctrines that define this voluntary association.

Complicated, right?

This is one case in which readers that are truly interested in accuracy really need to click here (.pdf) and print out a preliminary transcript of the actual arguments. The arguments are confusing, at times, but the transcript makes more sense than, well, the Washington Post report that tried to include some of the more heated exchanges.

You see, this really is an argument about the legal status of unpopular beliefs. You can see that in the following exchanges:

Justice Antonin Scalia said Hastings' policy of allowing anyone to join any club made no sense.

"It is so weird to require the campus Republican Club to admit Democrats -- not just to membership, but to officership," Scalia said. "To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy."

But justices on the left saw no reason to force the college to give its imprimatur to groups that discriminate. "Are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?" Justice Sonia Sotomayor asked McConnell.

McConnell said the group may not discriminate on the basis of a person's status, but can on the basis of beliefs.

"What if the belief is that African Americans are inferior?" Stevens asked.

"Again, I think they can discriminate on the basis of belief, but not on the basis of status," McConnell said.

Justices on the right saw other problems. Justice Samuel A. Alito Jr. envisioned a small group of Muslim students. "If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say: First Amendment allows that?"

When told that this scenario did not seem like a "realistic threat," Alito fired back, "CLS obviously thinks this is a real threat."

So, is the Christian Legal Society a group defined by its exclusion of gays or by its exclusion of those who do not share its religious doctrines? At that point, it is not an insignificant fact that the group's leadership states that it welcomes -- as members and leaders -- gays and lesbians who, as a matter of religious conviction, accept its advocacy of traditional Christian doctrines on marriage and sexuality.

Obviously, journalists need to be careful and accurately draw clear lines between these various doctrinal positions, because the issue is the legal status of religious doctrines in the public square -- in light of existing precedents defining free speech, freedom of association and equal access to public facilities. Obviously, journalists also need to seek out gay-rights advocates who understand the doctrinal stakes -- yet disagree, either for legal reasons, religious reasons, or both.

That's the point. That's the issue the court is debating. Journalists must strive to accurately report the beliefs of people on both sides.

Now, before you click "comment," please read the content of your remarks twice and make sure that you are debating journalistic issues in the Times and Post reports. This post focuses on issues of accuracy and balance in the coverage. This is not the place to debate the political and/or religious issues involved.

UPDATE: Veteran scribe Julia Duin of the Washington Times offered an interesting variation in her coverage of this story, one that stressed that the case pivots on beliefs. In her lede, she also noted that the CLS would have to include atheists as members and leaders.

Later she added additional crucial information, noting that several Jewish and Muslim groups filed friend-of-the-court briefs on behalf of CLS and in defense of traditional religious believers:

"Freedom of association for religious groups is absolutely critical," said Nathan Diament, director of the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America, which filed one of the briefs. "The notion that a Jewish group would have to admit adherents of Jews for Jesus is ... silly and violates the constitutional rights of this group."

Would Muslim groups need to admit Christian evangelists, including those who have converted from Islam? That's an angle worth pursuing by reporters.

Photo: Courtesy of WikiCommons

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