Christian Legal Society’s First Amendment Rights Intact After Supreme Court Ruling

The U.S. Supreme Court ruled today in Christian Legal Society v Hastings that the University of California’s Hastings College of the Law may enforce its anti-discrimination policy by denying funding and recognition to a Christian student group that excludes gays and lesbians. The group, Christian Legal Society, requires that voting members sign a declaration of faith renouncing “unrepentant participation in or advocacy of a sexually immoral lifestyle.”

William Saunders, writing in The Catholic Thing, asks “What happened to the First Amendment?” Here is his slant on the court’s decision:

In the case of Christian Legal Society v Hastings, the Court decided that the Hastings College of Law could deny registration to a student group as a CLS chapter because it required morally upright behavior of its members and adherence to its statement of faith. Pause and consider that. “Conservative” evangelical students – unlike over sixty other associations of students – may not be recognized as an official student group because CLS wants its members to agree with the theory and practice – the raison d’etre – of the group, that is, to be good and proper evangelical Christians.

To Saunders’ question, “What happened to the First Amendment?,” I would answer, “Nothing.”

CLS’s First Amendment rights were not violated by Hastings College’s policy or by the Supreme Court’s decision in Hastings’ favor. CLS may continue to discriminate against those who do not agree with its principles, and this is right and proper. Their First Amendment rights of free association, free speech, and free exercise are intact.

What CLS may not do is receive funding or recognition from Hastings College. This is because CLS’s discriminatory membership policies violate the college’s own non-discrimination policy, which withholds recognition from campus groups that seek to exclude people on the basis of religious beliefs or sexual orientation.

The Court’s decision in CLS v. Hastings makes complete sense, and I would agree with Ruth Bader Ginsberg’s opinion that CLS was seeking preferential exemption from Hastings’ policy. To have decided against Hastings, the court would have needed to show that their non-discrimination policy was unconstitutional, and they couldn’t very well do that without running into problems with the Equal Protection Clause (the 14th Amendment).

Like it or not, state universities have both a right and a duty to set and enforce non-discrimination policies. Everyone in the state—Christians, gays, Muslims, Jews, blacks, women, and all the rest—supports state universities with tax dollars. Students at Hastings pay student-activity fees that go toward supporting recognized student organizations. No Hastings student should ever be forced to fund a group that would exclude her. The fact that CLS has now been “excluded” may seem unfair until we remember the reason—i.e., that their policies are exclusionary. This is one of those apparent “paradoxes”—like being intolerant of intolerance—that straightens out under closer scrutiny. Exclusion due to violation of a policy is not the same as exclusion because of race, sexual orientation, or religion, and policies set by faith groups are different from those set by state institutions. Fortunately, our consitutional calculus of rights allows both kinds of entities to flourish. In Christian Legal Society v Hastings, the Supreme Court has steered a deft course between conflicting claims.

Further thoughts (7/27/10):

Here’s a parallel that may throw some light on the CLS v Hastings decision:

Brigham Young University makes a distinction between two kinds of academic freedom—one for individual faculty members to “teach and research without interference,” and the other for the institution to “pursue its distinctive mission.” Obviously, these freedoms may sometimes be at odds, so the faculty are subject to what BYU calls “reasonable limitations.” They may not contradict or oppose LDS Church doctrine or policy in public, they may not deride the LDS Church or its leaders, and they must not violate the “honor code.”

Is any of this a violation of faculty’s First Amendment rights? No, of course not. BYU faculty may say what they like about the LDS Church as long as they are prepared to seek employment elsewhere. When they signed their employment contract at BYU, they agreed to certain restrictions on their speech.

This is why CLS’s case against Hastings was without merit. They wanted funding and recognition from Hastings but refused to comply with Hastings’ non-discrimination policy. Hastings said, in essence, “You’re free to associate in whatever way you choose, but not on our dime.” If the Supreme Court had decided against Hastings, every organization in this country, from corporations to churches, might have lost the power to set its own policies. Face it—that power comes from the ones holding the purse strings. In Hastings’ case, it was the taxpayers.

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