Dr. Jillian T. Weiss

Supreme Court Upholds Law School Non-discrimination Policy

Filed By Dr. Jillian T. Weiss | June 28, 2010 5:00 PM | comments

Filed in: Living, Living, Marriage Equality
Tags: Christian Legal Society, First Amendment, freedom of speech, Hastings College of Law, Supreme Court, University of California

The Christian Legal Society (CLS) is a national organization of Christian lawyers and law students.church state crosstreets.jpg

Students at the University of California's Hastings College of Law formed a chapter in 2004 at Hastings, and applied for school recognition.

The school's policy prohibits discrimination on religion and sexual orientation, among other things. CLS said it wouldn't comply, its application was rejected, and it sued based on the First Amendment. Today, it lost the case.

That's a surprising result, given previous Supreme Court decisions permitting sexual orientation discrimination by the Boy Scouts and the New York City St. Patrick's Day parade.

The Supreme Court said those situations were different. Therein lies a tale.

The Christian Legal Society, a national organization with chapters all over the country, requires all CLS chapters to have bylaws requiring members and officers to sign a "Statement of Faith" and to conduct their lives in accord with prescribed principles. Among those tenets is the belief that sexual activity should not occur outside of marriage between a man and a woman.

CLS Hastings interprets its bylaws to exclude from affiliation anyone who engages in "unrepentant homosexual conduct" or holds religious convictions different from those in the Statement of Faith.

This isn't an organization that just decided off the cuff not to let gay people or non-Christians join. That's part of its core mission. That brings to mind the 2000 case of Boy Scouts v. Dale, in which the Supreme Court decided that New Jersey non-discrimination law violated the First Amendment rights of the Boy Scouts. The Court's decision turned on the fact that the Boy Scouts had a core message that homosexuality is bad. The Court reasoned that if the Boy Scouts were forced to have gay scoutmasters, that would interfere with this core message. It would essentially be telling the Boy Scouts that they had to change their core message. The Court said that the First Amendment's freedoms of expression and association meant that the state could not force the Boy Scouts to do that.

The Christian Legal Society people probably thought that sewed up the case. But the law is tricky. It's like that game called Othello. You have practically the whole board, but then one piece flips and the other guy wins. It doesn't take much to change a case from a winner to a loser. A tiny fact, or a slightly different interpretation of a law can flip the whole thing upside down. And that's what happened here.

The Court likened this case to those it has called "limited public forum" cases. In those cases, the Court has recognized that governments have the right to impose reasonable restrictions on the use of public property. This is particularly true of schools, which have legally recognized responsibilities with regard to its educational responsibilities towards its pupils. Thus, restrictions are allowed in such cases that would not be permitted in other cases involving government authority.

The Court found that Hastings' policy requiring that all-comers be permitted into the organization, which it called the "all-comers" policy, is a reasonable, viewpoint-neutral condition, and therefore does not transgress First Amendment limitations.

The Court also noted that its decision does not prevent CLS from excluding any person for any reason, though it will have to forgo the benefits of official recognition. It distinguished the Boy Scouts case by noting that the law in that case forbid exclusion in absolute terms, whereas here, Hastings "is dangling the carrot of subsidy, not wielding the stick of prohibition."

The Court deferred to authority of the schoolmaster, finding reasonable (though not necessarily agreeing with) Hastings' asserted justification: encouraging tolerance, cooperation, and learning among students in accordance with state law.

And CLS could still access school facilities to conduct meetings, using chalkboards and bulletin boards to advertise events

The court specifically noted that Hastings' all-comers policy is viewpoint neutral, meaning that it draws no distinction between groups based on their message or perspective.

Thus, today's ruling gives special force to non-discrimination policies in the school setting.

Whether this ruling will be applied to future First Amendment litigation around workplace non-discrimination, and in other settings, will have to be decided another day.

A sad side-note: Justice Ruth Bader Ginsburg's husband Martin passed away yesterday. Our condolences to Justice Ginsburg and the family.

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Thanks for the summation, Jill. You've helped me to put it all in place.