- The Washington Times - Tuesday, February 23, 2010

ANALYSIS/OPINION:

A lawsuit about bed-mates, or lack thereof, has united perhaps the most unlikely set of legal bedfellows ever to grace the Supreme Court’s docket. In their defense of religious liberty, the organizations in question are clearly on the side of the angels - even if their own beliefs recognize no angels at all.

On Feb. 16, the Supreme Court set oral arguments for April 19 in Christian Legal Society v. Martinez, a case in which the University of California’s Hastings College of Law (in San Francisco) denied official recognition to the Christian Legal Society (CLS), a conservative religious student group. Two weeks earlier, the Becket Fund for Religious Liberty filed an amicus brief in support of CLS on behalf of separate organizations of Muslims, Sikhs, Jews, black Christians and Hispanic Christians. Libertarian groups and 14 state attorneys general also filed supportive briefs. Interestingly, although U.C. Hastings claimed that its refusal to recognize CLS was taken in defense of homosexual rights, a group called Gays and Lesbians for Individual Liberty filed its own brief in support of CLS against U.C. Hastings.

Rarely do such diverse organizations agree on anything. For them all to back CLS shows just how important and universal is the Christian group’s fight for religious freedom.

The case’s facts are straightforward. U.C. Hastings denied the status of “Registered Student Organization” (RSO) to CLS. This incident is the only time the school has ever denied such recognition to a club that applied. Without RSO status, clubs lack the right to meet in university rooms for free, or to use ordinary campus means of communicating with other students such as the school newsletter, bulletin boards or university e-mail lists. Federal courts consistently have recognized that denial of these ordinary ways of communication constitutes a problematic burden on student organizations.

U.C. Hastings objected to the Christian group because it requires its voting members and officers to abide by an extensive, faith-based pledge that includes a prohibition on all premarital and extramarital sex. Anybody can come to the group’s meetings and participate, but only those - heterosexual and homosexual alike - who adopt the Statement of Faith can serve as officers and actually lead the Bible study. The university administration decided that a prohibition on sexual activity applicable to all voting members somehow discriminates specifically against homosexuals. (Secondarily, it said CLS discriminates on the basis of religion.) On those grounds, the school refused to register the group.

The school’s stance is unacceptable. As a religious organization, CLS has a constitutional right, confirmed in a series of court cases, to determine its own standards of conduct and rules for membership. This right also applies to nonreligious groups by virtue of the right of “expressive association,” but the protection for religious groups is arguably stronger.

As was noted in the brief by Gays and Lesbians for Individual Liberty, the right to determine one’s own membership actually does more to protect than to harm “disfavored and disenfranchised minority groups,” by protecting their own right to freely associate. Moreover, “Hastings College of Law has adopted a system of compulsory association. … The oppressive and irrational impact of this policy [would block] CLS [from] communicat[ing] its distinctive beliefs in a speech forum created for diverse student expression.” That’s why, according to the homosexual group, “Hastings’ policy is both self-defeating and unconstitutional.”

This case should be an easy call for the Supreme Court, which should rule for CLS and against U.C. Hastings unanimously.

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