- The Washington Times - Tuesday, April 20, 2010

The clash of religious freedom versus gay rights on college campuses came before the Supreme Court on Monday as lawyers for a Christian student group argued the group should not be forced to accept atheists or homosexuals into its leadership ranks.

No matter how justices rule in Christian Legal Society vs. Martinez, the case will affect religious groups across the country that have set up shop on secular college campuses.

Monday’s debate concentrated on whether the University of California Hastings College of the Law in San Francisco could refuse to recognize a campus chapter of the Christian Legal Society (CLS) because the latter bars non-Christians and sexually active homosexuals from becoming voting members or leaders.

“The [school’s anti-discrimination] policy is blatantly unconstitutional and manifestly overbroad,” said Michael McConnell, the California lawyer arguing on behalf of the CLS. “It’s a frontal assault on freedom of association … to form around cherished beliefs.”

Once the campus chapter formally affiliated with the CLS in 2004, it was told that its bylaws — which stipulated belief in a Christian God and forbade membership to students who commit fornication, adultery or homosexual acts — collided with the school’s non-discrimination policy. The school then forbade recognition, which allows an organization to use school classroom space, e-mail communications and other facilities, and to receive student government funding.

The chapter sued, saying the school had violated its First Amendment rights to speech, assembly and the free exercise of religion. It lost in both U.S. District Court and the 9th Circuit Court of Appeals levels before the Supreme Court announced it would review the case.

The high court is expected to rule this summer.

If allowed to stand, Mr. McConnell argued, the school’s policy would compel similar organizations nationwide to accept within their ranks people who could undermine the entire group. For example, he added, “What if an NAACP chapter would have to let a racist skinhead sit in on its meetings?”

“It may be an ill-advised policy,” Justice Ruth Bader Ginsburg said, “but the school says ‘It’s our policy, and it’s worked fine.’ All the hypotheticals about sabotage have not happened yet.”

That’s only because, Mr. McConnell responded, the law school only has been enforcing what it calls an “all-comers policy” — that campus groups must accept anyone who wants to join — since 2005.

An all-comers policy, according to CLS, is not a rational way to promote freedom of speech and association because any small group could be hijacked or sabotaged by a group of unsympathetic students who could attend the meetings and vote themselves into office.

“Suppose at a particular campus, there is a great deal of anti-Muslim animus,” Justice Samuel A. Alito Jr. said to Gregory Garre, the attorney representing Hastings School of Law and its chancellor, Leo P. Martinez. “And there is a small Muslim group; it has 10 students.

“If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say the First Amendment allows that?”

“This example has never happened at Hastings in 20 years,” Mr. Garre said. “It has never really happened in the history of American education.”

“Well,” Justice Alito said, “CLS obviously thinks this is a real threat.”

So did three other groups, two of them Jewish and the other Muslim, which filed friend-of-the-court briefs that sided with CLS.

“Freedom of association for religious groups is absolutely critical,” said Nathan Diament, director of the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America, which filed one of the briefs.

“The notion that a Jewish group would have to admit adherents of Jews for Jesus is … silly and violates the constitutional rights of this group.”

Justice Sonia Sotomayor was concerned the case was more about race than religion.

“Are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?” she asked Mr. McConnell.

Not at all,” Mr. McConnell replied. “The stipulation is they may not exclude based status (race) and beliefs. We have only challenged the beliefs, not status.”

Chief Justice John G. Roberts drove this point home as he tried to clarify the issue.

“Gender or race is fundamentally different from religious belief,” he said. “Gender and race is a status. Religious belief has to be based on the fundamental notion that we are not open to everybody.

“We have beliefs; you have to subscribe to them. And we have always regarded that as a good thing.”

Justice Alito and Chief Justice Roberts also pointed out that bylaws for other student groups on campus discriminated in terms of who gets to join.

“It’s troubling that some of these bylaws do limit their groups,” Justice Sotomayor said. “[The group] La Raza limited it to people of Hispanic descent and the [campus] Lawyers Guild to people who adopt its beliefs. What are we going to do with this selective-application argument?”

Justice Antonin Scalia chimed in with his doubts.

“It is so weird to require the campus Republican club to admit Democrats,” he said, “Not just to membership, but to officership. To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That’s crazy.”

Mr. Garre said multiple educational organizations agreed with Hastings.

“There is an amicus brief filed by 13 educational organizations representing thousands of colleges and universities across the country, including an association of Jesuit colleges and universities, saying this is a not-uncommon and reasonable policy,” he said.

The case has huge implications beyond college campuses. The government’s charitable-choice programs allow faith-based organizations that receive federal funding to discriminate on the basis of religion whom they hire as personnel. Despite campaign promises to the contrary, President Obama has allowed this policy to continue.

• Julia Duin can be reached at jduin@washingtontimes.com.

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