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.