Supreme Court Backs Homosexuals Against Christians
But Crucial Issue Sent Back to the Lower Court
BY Steve Weatherbe
August 1-14, 2010 Issue | Posted 7/23/10 at 6:17 PM
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 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.
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 of Appeals, based in San Francisco, 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 ReligionClause.blogspot.com, 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.”
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-comers 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.”
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.
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