Monday, June 28, 2010

Weird: CLS vs. Martinez

Justin Taylor reports that SCOTUS has ruled against the Christian Legal Society (CLS) in their case against Hastings.

CLS had applied to be a student organization but was denied because Hastings claimed their requirement that officers and voters subscribe to a Christian belief was discriminatory on the basis of religion. SCOTUS agreed (5-4) with Hastings.

Here’s my question (and you legal minds feel free to chime in and correct me here): Since CLS has a religious conviction that officers and voters must subscribe to Christian beliefs to maintain the integrity of the organization, how is it that Hastings did not discriminate against CLS on the basis of their religious belief?

In other words, I think this case demonstrates that non-discrimination policies can be inherently discriminatory.

In this case, Hastings changed their rationale for denial three times, in the end invoking a policy that apparently did not even exist when the original denial took place.

I read part of the majority opinion and most of the dissent. I won’t attempt a legal analysis, but here’s the bottom line in my view: Hastings can discriminate based on religion, if the religious views prohibit certain members of the Hastings family from full participation in the organization.

It seems to conclude that a student group must be willing to give up its fundamental identity in order to gain official recognition and all that comes with it (including funding, facilities, communication) if that fundamental identity excludes people who do not share the fundamental identity.

Or to put it differently, in order to be a registered student organization (RSO), you cannot be something that everyone cannot be. You cannot require a belief that everyone cannot affirm.

Interestingly, SCOTUS itself does not even have such a requirement since clearly, the nine members, believe differently (three signed the majority opinion; two concurred; four dissented). I suppose it’s good for SCOTUS that they are not trying to gain RSO status at Hastings, and since potential members have been rejected for their beliefs (cf. the Borking of Judge Bork), and all potential members are rigorously examined concerning their beliefs about judicial and legal philosophy.

I think Justice Stevens, writing for the majority on his last day of his long career, did not do his reputation any favors. He has, in essence, argued that an institution (Hastings, in this case) can discriminate on the basis of religious beliefs, and can treat organizations differently based on their religious beliefs. He has furthermore defended the idea that an institution (Hastings, in this case) does not have to treat organizations equally (as Alito pointed out in his dissent, joined by Roberts, Thomas, and Scalia).

In the end, this won’t be a setback for Christianity. It won’t affect many of us. CLS does meet at Hastings, although simple request like setting a table for new students was ignored until it was too late, and reserving a room for a special speaker was also ignored until it was too late (both of which are acceptable even for non-RSOs).

But it is a sad day, in my mind, when SCOTUS denies freedom of association, and affirms the right of public institutions to hinder free speech by members of the institution simply because they do not like their views.

Here’s another question with respect to implications: Now that SCOTUS has ruled that organizations may not limit voting rights to certain groups of people, will this set the stage for the overturning of voting restrictions in other situations (such as age, residency, legal status, etc)?

I would think an argument could be made that if an organization such as CLS cannot restrict officers and voters based on certain criteria, that states (or the federal government) cannot restrict officers and voters. So given this ruling, since my religious belief is that I must live in my current city in order to serve God, can I be denied voting rights in Chicago because of that? Scratch that – Chicago is a bad example because apparently not even dead people are denied voting rights in Chicago.

Obviously, that’s a reach, right?

But remember, this is the Supreme Court we are talking about.

Nothing is that far out of the realm of possibility.


Anonymous said...

I only have a general familiarity with this case, but I think the key is funding. CLS wanted funding from the school, so the school believed it was obligated to not allow funds to be used due to CLS's policies.
I am open to correction on the facts of the case and my viewpoint on it, but I am inclined to agree with the decision. IOW, CLS was not barred from holding its religious beliefs, but was told that it would not receive approval that gave them access to funds. I don't think they have a right to be funded (but, as I said, I'm open to correction on it).


Jim Peet said...

I don't see this as any kind of setback for religious based groups.

The solution simple: 1.) Meet off campus & 2.) Don't accept funding from the school.

Not a big deal ... but it is weird .... not wierd.

Always appreciate your blog!

Larry said...

WARNING: Possible information overload coming.

I had heard of the case only briefly before I read the opinion this morning. My understanding, based on the opinion, is that it is not just about funding (which the dissent says "plays a very small role in this case." It points out that most of what CLS requested was cost-free (p. 61 of PDF). It is also about facility usage, communication channels, not to mention the general principle involved. The dissent calls this a "serious setback for freedom of expression in this country" (p. 85 of PDF).

Like you, DMD, I don't think they have a right to be funded, but I don't see any reason for the school to fund any organization such as this. Hastings did believe they were not obligated to recognize CLS because of their policies, and that was the dispute: Can Hastings single out a religious belief based group for different treatment? CLS (and the dissent) answered that in the negative.

To Jim, yes they can meet elsewhere (even on campus). But I think there is a bigger principle of the freedom of association and expression going on here. (And I am not a big fan of free speech. I think most people would be better off shutting up, not speaking up.)

Larry said...

Here's the overload part. As I understand it, the dissent was based on several issues (summarized):

1. The basis given originally was changed three times, so that the court case now was not based on the original reason. The non-discrimination policy was the original reason, which later became an "accept all comers" policy. By the time it reached SCOTUS, it was an "accept some comers" policy, based on "neutral and generally applicable membership requirements unrelated to ‘status or beliefs.’” (p. 57 in PDF). So it went from "You can't discriminate" to "you have to accept everyone" to "you can reject members so long as it is not based on belief or status" (particularly related to the same-sex issue).

2. The policy is not viewpoint neutral. It discriminates against CLS based solely on their viewpoints, a standard which is not applied to other RSOs. From the dissent: "Only religious groups were required to admit students who did not share their views" (p. 67). Neither environmental nor animal rights groups were obligated to accept those who did not share their views. Furthermore, "The adoption of a facially neutral policy for the purpose of suppressing the expression of a particular viewpoint is viewpoint discrimination" (p. 80), which means that creating a neutral policy is discriminatory when the purpose of it is to discriminate.

3. The policy is not equally applied. The dissent gave several examples; here is one: For example, the bylaws of the Hastings Democratic Caucus provided that “any full-time student at Hastings may become a member of HDC so long as they do not exhibit a consistent disregard and lack of respect for the objective of the organization as stated in Article 3, Section 1.” App. to Pet. for Cert. 118a (emphasis added). Other examples are the American Trial Lawyers Associations, the Vietnamese American Law Association, Silenced Right (a pro-life organization). On this basis, the dissent argues that Hastings does not use an "accept all comers" policy for all organizations. In fact, the dissent points out that the law school itself doesn't use an "accept all comers" policy with respect to students and faculty. When this was pointed out to Hastings during the litigation, they went back and enforced the policy on student organizations which, in the words of the dissent, "suggest, if anything, that Hastings had no accept-all-comers policy until this litigation was well under way."

So in the end, while I am not paritcularly troubled from a Christian point of view, it is an interesting to case to me from a legal point of view. It seems (and I am willing to be corrected by my legal friends) that this is naked religious discrimination under the guise of non-discrimination.