WASHINGTON — The Supreme Court has given a California public law school the go-ahead to defund a Christian student club for restricting membership to Christians willing to abstain from sex until marriage.
The case came down to whether the University of California’s Hastings College of the Law in San Francisco could revoke funding and other privileges of the local chapter of the Christian Legal Society because the society required members to affirm a faith statement and abide by a moral code prohibiting sex outside of marriage.
This violated its nondiscrimination policy, according to the college, by excluding homosexuals from both membership and access to the public funds available to clubs from the school.
While the court seems to have kept its June 28 decision narrow in reach, critics across a broad political range, from free-speech advocate Adam Goldstein through Christian groups to the Gays and Lesbians for Individual Liberty, have condemned the decision — along with four of the court’s nine members.
Kim Colby of the national Christian Legal Society is especially concerned about what it means for future religious-freedom cases of broader scope. “It was troubling that a majority of the Supreme Court did not seem to realize how important a statement of faith is to Christian organizations — and has been for 2,000 years,” Colby said.
Voting in the minority were four of the court’s six Catholics, all Republican appointees: Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Samuel Alito.
Colby says her group, which also provides support to practicing lawyers — Catholic or Protestant — has defended many of its 90 college chapters from nondiscrimination policies over the past 17 years, until now, always successfully. Most school administrations have backed down after getting a warning letter.
But Hastings decided to defend its policy. So the Christian Legal Society, supported by the Alliance Defense Fund, another national religious-rights advocacy organization, sued the college in 2005, arguing that its policy was itself a violation of the Constitution’s First Amendment.
The Christian Legal Society reasoning was that the policy required religious organizations to allow anyone to belong regardless of religious or moral belief, but it did not require political groups such as the campus Republicans to allow Democrats to join or environmental groups to let in debunkers of global warming. This, it argued, was “viewpoint discrimination.”
Still, Hastings did not give in, arguing that its rights allowed it to force upon student clubs a conduct code to make its campus a safe and respectful place for all minorities.
All-Comers Policy Prevails
However, one year into the case, Hastings did change its defense, suddenly claiming it had had an unwritten policy for 20 years requiring all campus clubs to admit all comers as members.
This sleight of hand did the trick in both California’s 9th Circuit Court and the Supreme Court. Declared the latter: “Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum.”
But Colby demurred. “We argue that the all-comers policy was pretextual,” she said. “It’s certainly dirty pool to say you’ve had a policy for 20 years when you haven’t.”
The dissenting minority also judged the all-comers policy as a device to attack the Christian club. “The court ignores strong evidence that the accept-all-comers policy is not viewpoint-neutral because it was announced as a pretext to justify viewpoint discrimination,” said Alito. “Brushing aside inconvenient precedent, the court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups — groups to which, as Hastings candidly puts it, these institutions ‘do not wish to … lend their name[s].’ … I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country.”
“It seems self-evidently nonsensical,” agreed Greg Baylor, chief counsel of the Alliance Defense Fund. The ruling could do real damage, he told the Register, if other colleges anxious to crack down on free religious expression establish their own all-comers policies.
Howard Friedman, professor emeritus of law at Toledo University in Ohio and creator of the Religion Clause blog, agrees. He told the Register that some minority and free-speech groups have expressed fear of being taken over by others under all-comers policies.
“Their worry would be that people who don’t share their intent can join their group and undermine it,” said Friedman. “The campus Jewish club could be taken over by Jews for Jesus.”
Decision Hurts Minorities
Baylor warned that minority groups would be particularly vulnerable to hostile takeovers. For that reason, he hopes they will pressure university administrators to stay clear of all-comer policies. “It will be interesting to see if any school can consistently enforce an all-comers policy,” he said.
Indeed, Hastings’s acting dean, Leo Martinez, the named defendant in the case, admitted in a PBS interview that the decision would require a campus Jewish Anti-Defamation League to admit Muslims or an African-American students group to admit Ku Klux Klansmen.
Nonetheless, both the American Jewish Committee and the Union for Reform Judaism supported the Supreme Court decision, noting, “America’s institutions of higher learning have an unfortunate history of excluding certain racial and religious minorities … Jews, in particular.”
Joining them in Hastings’s support were groups such as Americans United for Separation of Church and State and the American Civil Liberties Union, the latter declaring that, had the Christian Legal Society prevailed, “Hastings and other public universities would have no choice but to subsidize racially discriminatory groups, student groups that restrict membership based on gender, or groups that bar students with disabilities.”
Several law associations, including the American Bar Association, also weighed in on Hastings’ side. The ABA stated: “While public universities have a unique interest in protecting free speech, they also have a substantial and justified interest in enforcing neutral nondiscrimination policies by refusing to subsidize student organizations that discriminate against members of the school community.”
Along with Muslim groups and Gays and Lesbians for Individual Liberty, libertarians and free-speech groups supported the Christian Legal Society. Adam Goldstein of the Student Press Law Society wrote on the Huffington Post website that the ruling “sucker-punches” the First Amendment’s protection of free speech, the free press and the free exercise of religion, denying university students the rights other Americans are guaranteed.
And libertarian Cathy Young framed the decision in terms of a crucial and far-reaching clash between two fundamental liberal values — liberty and equality.
“Conservatives and libertarians have long cautioned that the modern-day liberal conception of equality would ultimately undermine if not destroy liberty. While these warnings may seem alarmist, a new ruling from the Supreme Court may lend them some credence and set a dangerous precedent in sacrificing freedom for equality’s sake.”
Religious vs. Homosexual Rights
Religion Clause’s Friedman told the Register the decision was a precursor to another major clash — between religious and homosexual rights. The Supreme Court “isn’t quite there yet,” he said, in terms of being ready to rule that sexual orientation “trumps” religious rights, as, in the past, it has ruled that racial equality trumps the claims of religious groups to have biblical justification for racial discrimination.
“I think that is why the court ruled on such narrow grounds,” he said. “The science isn’t there yet to rule that being gay is based on biology.”
At the same time, the court did give the Christian Legal Society one more kick at Hastings, remanding back to the 9th Circuit Court the question of whether the all-comers policy was something Hastings either invented in 2005 or had never until then applied to any organization other than the Christian Legal Society.
Colby promised, “We will be going back to the 9th Circuit.”
Steve Weatherbe writes from Victoria, British Columbia.
Dan Burke: The Light of God in Nashville, Tennessee
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There is no biblical justification for racial discrimination. The self-evident Truth that all Men are created equal and the self-evident Truth regarding the complementary nature of Man and Woman comes from Revelation.(see The Holy Bible, In The Beginning when God created Man in His Image as Male and Female)
Our Founding Fathers did not create a separate personhood based on race or sexual orientation. They sought to secure the unalienable rights that are endowed to each one of us from our Creator, God, including the Right to practice our Religion without persecution.
“Homosexuals against Christians?” That’s an awfully presumptuous phrase. It implies that homosexuals and Christians are just automatically, diametrically opposed to each other. But this is not necessarily the case.
First of all, Gay people are just as likely to be people of faith as Straight people. Most of my Gay friends ARE Christians (while some are Jewish or members of other faiths).
Secondly, Christians are not uniformly against fair treatment for Gay Americans, nor do they necessarily disagree with the Supreme Court’s decision of the Christian Legal Society. Speak for the Vatican if you must, but there are plenty of other Christians who understand that this case was never about freedom of expression or religion, since the Christian Legal Society is still free to discriminate against whomever they wish.
At issue here is whether a PUBLICLY-funded school was obligated to support, and thus tacitly approve, an organization that discriminates. Would you want YOUR tax dollars being used to fund organizations that discriminated against Christians? NO? I didn’t think so. Nor do I want MY tax dollars being used to fund organizations that discriminate against Gay people.
To Chuck,
You are taking part of the title out of context. The full title is “Supreme Court Backs Homosexuals Against Christians,” which addresses the two parties in conflict at UC’s Hastings College. You have disproven your own statement, but I would like to hear your opinions on the article.
Furthermore, public universities already fund groups that discriminate against Christians, such as VOX and the Radical Student Union. At issue here is whether Christian groups can identify themselves as Christian. Do you think this should be allowed?
“Gay” is not a person, it refers to sexual relationship. Defining someone or oneself according to one’s sexual preference or orientation is demeaning and does not respect the Dignity of the Human Person. Those who insist upon creating a separate personhood based upon sexual preference do so in order that it may appear that those who refuse to condone homosexual sexual acts because they do not respect the Sacredness and Dignity of the Human Person are discriminating against a person rather than demeaning sexual acts.
It is strange that an organisation has no right to have its rules of membership.If membership is open to those who are against the basic principles of the organisation, how can it have peace and even existence ?
Just another example of the twisted and tortured logic in America today. It never ends. God help us.
NOthing has been “trumped”. the sadness in this is that once again the right to religious rights is stolen from us under the guise of legal jagon. when a group of young people cannot get together with the same values and thoughts and express them in a peaceful and loving way, where has this country gone to? Just like everying else, it is all out of balance. the “scales” of justice hardly are balanced and certainly are not balanced in the Name of God.
Nancy,
You are correct. I myself have been wondering at what point in our history did we take the leap to define oneself based on the sexual lusts one has. Should I self categorize based on the type of girl I like. This is ridicules and is nothing more then an image of where we are going. Truth, Wisdom, Morals, Ethics, Values have all left. Wisdom, I hope is still calling in the streets. However, the Great Fear is that she might stop.
Ask the youth and even young adults about where we came from the foundations of this country. SILENCE….they have not a clue. We have grown too coveting and are being drawn away from the very strength that formed this great nation, The Lord Mighty and Strong.
We were formed on specific principles and laws, and the new age (ignorant and uneducated) want to erase those laws and establish their own. America is a club, if you don’t like our list of rules (Bill of Rights and Constitution) LEAVE.
When we get old and die, will we be able to say that we kept what our Forefathers died to give us.
Benjamin Franklin “You have a Republic, if you can keep it!”
This story misrepresents the issue. The CLS was seeking the right to exclude dissenters. It adopted an amendment to the articles of faith that excluded ANYONE whose religious beliefs in any way allowed any status for gay couples. This included political support for civil solutions for gay couples.
If you want the nation’s school organizations riven by conflict, with some Catholic student groups banning the orthodox and others banning the liberals, go ahead.
And look forward to “No Catholics Need Apply” signs.
Ah, nostalgia…
Based on decades of research, clinical practice, and more than 450 authoritative references, homosexuality is not a “lifestyle.” Homosexuality and sexual behavior differences result from sexual center variations in the brain. Homosexuality, excepting adult onsets caused by brain changes due to viruses, tumors, and injuries, are related to hormonal conditioning of the developing brain during fetal development. Homosexuals, when compared to heterosexuals, differ in hormonal differences and responses, uncontrollable reflexes, functional MRI readings, neuroanatomy, etc. Using thousands of subjects, Bell and Weinberg, social psychologists, state “Among both men and women in our study, there is a powerful link between gender nonconformity and the development or homosexuality.” . . . “At the moment, a large body of convincing research appears to suggest a biological foundation for homosexuality.” Same-sexed partnerships are known to exist in higher mammals and in many intelligent species. Over 250 species show same-sexed attraction and some life long bonding.
Using blind analysis, using modern psycho-physiological, neurophysiological, and hormonal response analysis and direct assay, homosexuals can be separated from heterosexuals with much greater accuracy than Hitler could separate Jews from Aryans. Homosexuals, along is Slavs, Gypsies, nuns and priests both Roman Catholic and Protestant, etc. at Auschwitz were cremated in #4 with a sign that read: “Juden Verboten.”
Heterosexuals predominate as sex offenders, regardless of victim age or whether the object is male or female. While there are a limited number of homosexual phebophiles (love of adolescents), those who are predatory towards other males at this age and above are almost exclusively heterosexual. In prison populations, the number of homosexuals is much less than in the community particularly for violent offenders and child molesters.
Many who are negative to homosexuality are in no manner homophobes. Particularly during adolescence and early adult phases, homophobia presents itself mostly among those who fear their own homosexuality. Research shows many “heterosexuals” vehemently opposed to homosexuality, using scientific measures, respond the same as homosexuals. Physicians and psychologists tend to see these individuals as self-loathing homosexuals. Anti-homosexual religious zealots are either unfamiliar with or deny the voluminous scientific research on sexual orientation.
People who oppose homosexuality are often extremely vocal and few shy away from making homosexuals the target of mean spirited attacks. Christ never mentions homosexuals in the New Testament or the Book of Mormon. Early church scholars with unbridled disdain for homosexuals, Saint John Chrysostom and St. Augustine, who with anguish admits to homosexual practice, discuss I Cor. 6.9-10 and homosexuality is never mentioned. The passage discusses pagan temple practices. In the early Christian church, the punishment for homosexual behavior ranged from penance to excommunication. The word “????????????” which some translate as “homosexual” is best translated, as did Martin Luther, “knabenchänder” or child molester. Until A.D. 656 Christians debated whether women had souls and the Counci l of Trent “condemned to anathema anyone who said marriage was as virtuous as celibacy.” Marriage is a sacrament of the church not related to the state. It seems the proper religious viewpoint should be only churches can perform “marriages.” The state, not being an arbiter for the church, should issue declarations of domestic partnership regardless of the sex of couples.
A “homosexual agenda” does not exist. Homosexuals are extremely diverse politically and many do not identify with the GLBT (Gay, Lesbian, Bisexual and Transgendered) community or consider themselves homosexual. Being part of the GLTB is a social process necessary to help disenfranchised GLTB individuals express their opinions, helping reduce prejudice and discrimination in an anti-GLBT mileu. GLBT emphasize positive image and self-acceptance and are active in numerous charities.
The GLBT tend to rely on scientific studies that show other than sexual orientation, there are few differences between GLBTs and heterosexuals. The GLBT community appears to be advocating for issues like: same-sexed marriage, full citizens’ rights, hate crimes legislation and support for all GLBT persons. The GLBT community supports heterosexuals and appropriate sexual behavior between consenting adults regardless of sexuality.
While social process is involved in sexual expression, it does not determine sexual orientation. To avoid stigma, some become pseudo-heterosexuals. Religiously motivated conversion therapy has never been scientifically documented to change a persons natural underlying sexual orientation. Pseudo-heterosexuality is the objective of such therapies. Many unable to change are significantly depressed and suicidal. “Two of Exodus International’s founders, Michael Bussee and Garry Cooper, fell in love and left the organization in 1979.”
Sexual orientation should not form the basis for discrimination or inequality. It should remind us of God’s variant creation. Could homosexuality be a means of population control as suggested by Carl Jung? The opposition to GLBT persons is contrary to the compassionate and loving teachings of Jesus Christ (Mt 7.1-5).
Dr. Murphy is a retired Cal Poly psychologist, lectured at international universities, did medical research at the University of Washington, and was a consulting forensic psychologist for the State of California criminal justice system. He has presented authoritative scientific papers on sexual orientation internationally to professional organizations, the public, legislative officials, and the courts. For a scientific article with references, email .(JavaScript must be enabled to view this email address).
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