On April 19, 2010, the U.S. Supreme Court will hear oral arguments in Christian Legal Society v. Martinez, a case that will determine whether a public institution can refuse to officially recognize a religiously based organization that prevents those who do not share its religious and moral values from becoming voting members. The case arose in 2004 when a chapter of the Christian Legal Society (CLS), expressed a desire to register as an official student group at the University of California’s Hastings College of Law. Groups that are officially recognized by the school enjoy certain privileges, including public funding. But CLS requirements effectively bar non-Christians and non-celibate gays and lesbians from becoming voting members or assuming leadership positions, which is in direct conflict with the law school’s non-discrimination policy. After six years of litigation in lower courts, the case is now before the Supreme Court. The high court’s decision could be narrowly tailored and impact only educational institutions, or could be broad and sweeping, affecting the rules governing a wide array of groups that accept government funding.

The Christian Legal Society is a nationwide, non-denominational organization of Christian lawyers, judges and law students with chapters at 165 law schools throughout the U.S., including the University of California’s Hastings College of Law. Although anyone is allowed to attend CLS meetings, voting members and those in a chapter’s leadership positions must sign and adhere to a Statement of Faith affirming their commitment to the group’s Christian beliefs and values. In addition, the group’s bylaws state that members and officers are expected to live according to certain principles, including refraining from sexual activity of any kind outside of heterosexual marriage.

In the fall of 2004, the local CLS chapter at Hastings applied to register as a student organization at the law school. Groups that are officially registered at Hastings benefit from certain privileges. For example registered organizations are given priority access to university facilities, such as rooms for meetings, and are entitled to apply for funds for specific activities, such as travel to professional conferences. Unregistered groups are allowed to operate on campus, but without school funding and other privileges.

After reviewing the CLS’s bylaws, Hastings officials questioned whether the organization could comply with the school’s open membership or anti-discrimination policy. Hastings’ non-discrimination policy states that the university and affiliated groups “shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” CLS agreed that its requirements that members be Christians and that they only be intimate with an opposite-sex spouse were not in line with two parts of the school’s non-discrimination policy: those concerning religion and sexual orientation. The group asked to be exempt from these two parts of the policy and allowed to register. When the law school refused this request, CLS sued Hastings in the U.S. District Court for the Northern District of California, arguing that the school had violated its First Amendment rights to speech, assembly and the free exercise of religion.

In April, 2006, the district court ruled that Hastings did not violate CLS’s rights when it enforced its non-discrimination policy. Specifically, the district court judge stated that by denying official recognition to the group, the law school had done nothing to significantly “impair” the group’s ability to function or even express itself on campus. CLS then filed an appeal with the 9th Circuit Court of Appeals, which in March 2009 affirmed the district court’s ruling.

After these two lower federal courts ruled in favor of Hastings College of Law, the Supreme Court agreed to review the case.

In its brief to the Supreme Court, the CLS acknowledges that Hastings’ decision not to officially recognize the group does not deny it the right to exist or function on campus in a limited way. However, the Society contends that denial of recognition does burden the group’s First Amendment rights because it limits access to university rooms and denies access to communications resources and financial support available to other, registered groups. The group argues that by creating a system whereby student groups register and are then given access to university resources, Hastings has created what courts have called a “public forum.” In other words, the university has created an environment on campus where groups can express themselves. As a result, CLS says, any group that is denied access to this public forum will not have the same ability as other groups to get its message out to the campus community. According to the CLS, this explains why courts have generally maintained that once a public forum is established, it cannot be limited to groups or individuals with certain beliefs.

Next, CLS argues that by making official recognition subject to acceptance of the university’s non-discrimination policy, Hastings is limiting access to the school’s public forum, and is therefore violating the group’s First Amendment right to what courts have called “expressive association.” The right to expressive association, which arises from both the freedoms of speech and assembly under the First Amendment, protects the right of an organization to control its mission, message and policies, and to choose members and leaders to carry out its objectives. According to CLS, Hastings’ non-discrimination policy would require the group to take anyone into its voting membership, and potentially into its leadership ranks, regardless of whether the person shares the group’s beliefs. CLS contends that courts have long recognized that the First Amendment right of expressive association includes the right to exclude those who are not committed to the group’s cause. Indeed, CLS points out that many other organizations that have registered at Hastings have statements in their bylaws allowing them to confine membership and leadership to individuals who believe in the group’s mission and objectives.

And in most cases, CLS says, groups at the law school can and do regulate membership. For instance, an environmental group could legally keep climate change skeptics from leadership positions without running afoul of the Hastings anti-discrimination policy. But because Hastings’ policy prohibits bias based on religion and sexual orientation (rather than say, environmental views) CLS, unlike other groups, could conceivably be forced to allow into its leadership ranks those who do not share its religious or moral beliefs. In doing this, they say, Hastings is overtly discriminating against religious groups and thus violating the guarantee of religious liberty in the First Amendment’s free exercise clause.

Protecting the right to ensure that a group’s members share its basic beliefs is important for all organizations, CLS contends. The Society further argues that it is particularly important for smaller groups or those with broadly unpopular agendas – which, the Christian Legal Society says, is the case with their group on the Hastings campus – because these types of organizations are more vulnerable to being controlled or harassed by outsiders. In this case, they say, CLS could easily be compromised and even effectively shut down if large numbers of people hostile to the group were allowed to become voting members and eventually assume leadership positions.

In its brief before the Supreme Court, the Hastings College of Law contends that its non-discrimination policy does not violate the Christian Legal Society’s or any individual’s First Amendment rights. To begin with, the law school argues, it is settled law that government entities are allowed to set conditions when offering public subsidies to groups, as long as those conditions 1) do not favor certain views over others (a requirement known as “viewpoint neutrality”), 2) are reasonable in light of the purposes of the program and 3) are not coercive.

In this case, Hastings argues that its registration policy does not favor certain viewpoints over others since all officially registered groups on the campus are entitled to set their own policies and to openly express their views. Indeed, they say, other religious groups have long been registered at the law school without incident. The only thing registered groups cannot do, the law school points out, is to exclude students from membership. More specifically, Hastings rejects the claim that its non-discrimination policy imposes a special burden on religious groups (like CLS) because of the possibility that religious organizations could be overwhelmed by new members who do not share the group’s beliefs or mission.

The law school also points out that courts have consistently upheld similar laws banning discrimination, including discrimination based on religion and sexual orientation. In addition, Hastings says, courts generally recognize that these laws do not run afoul of the First Amendment because they regulate conduct (in this case, discriminatory conduct) and not speech.

Hastings also claims that, in addition to being fair and neutral, its non-discrimination policy is reasonable in light of its purpose, which is to ensure “that the leadership, educational, and social opportunities afforded by registered student organizations are available to all students.” The policy is reinforced by the fact that much of the money used to assist officially registered groups comes from the activity fees paid by all students. “It is reasonable for Hastings to conclude that students should not have to subsidize group activities that they are formally excluded from participating in,” the law school’s brief states. In addition, Hastings maintains, the non-discrimination policy is required by California state law, which provides that groups receiving funds from the state, including registered student groups, must comply with its anti-discrimination laws. This includes bans on discrimination based on religion and sexual orientation.

The law school also argues that the conditions it sets for registration, including its non-discrimination policy, are not coercive. “A group may abide by the School’s viewpoint neutral open-membership policy and obtain the modest funding and benefits that go with school recognition or forgo recognition and do as it wishes,” Hastings states in its brief. Moreover, they say, the benefits that come with recognition are so modest (primarily small amounts of funding and priority in reservations for rooms) that it is hard to argue (as CLS does) that loss of these benefits amounts to a significant burden on First Amendment rights of speech or association. Indeed, the university states that the group can still operate on campus without restriction and can even use rooms at the law school for meetings. And if CLS were to register, Hastings says, the open membership policy would not, as the group claims, force it to accept leaders who do not share its beliefs. Instead, according to the law school, the policy only requires that all students be allowed to become members and that they be eligible for leadership positions. The university asserts, moreover, that the Society’s fear that their opponents might take over the group’s leadership positions is at best hypothetical and is not supported by concrete examples of similar incidents at Hastings or other schools.

Finally, Hastings argues that the Supreme Court has long held that just because the state subsidizes groups that do not discriminate, it is not required to subsidize groups that do engage in discrimination. Furthermore, they say, allowing CLS to register and receive benefits while it discriminates on the basis of religion and sexual orientation would inevitably lead to similar cases. Indeed, the state could be forced to subsidize groups that discriminate in other ways – against, say, the disabled or those in the military. Under CLS’s logic, the law school contends, “the official Hastings Outdoor Club could refuse to let student [military] reservists participate in a school-subsidized hiking trip because the student leaders of that group disagree with the military’s conduct of the war on terror. And Hastings not only would be constitutionally precluded from doing anything about it, it would have to subsidize the group’s activities and let it use the School’s name.”

If the justices rule in favor of Hastings and determine that its anti-discrimination provision does not burden CLS’s First Amendment right to expressive association, the decision is likely to have a limited impact outside of educational settings. At publicly funded educational institutions of all kinds, however, a ruling in favor of Hastings might embolden some schools to enact tighter restrictions on eligibility for student activity funding and resources. At these institutions, a decision for Hastings might give officials greater confidence that when they set conditions on groups that accept public money, they will not be violating their First Amendment freedoms.

If, however, the court finds that the non-discrimination rules impermissibly burden CLS’s rights, then the decision could have a broad impact that extends beyond educational institutions. Not only would this ruling protect the right of religiously based groups, like the Christian Legal Society, to receive support at places like Hastings, it might also allow groups that discriminate based on other criteria, such as race or gender, to gain equal access to public forums. Furthermore, if the court extends the reach of this decision to all government funding programs (as opposed to only those, like the one at Hastings, that concern public forums for speech) then its potential impact would be very significant. Such a ruling could lead to dramatic changes in this area of law by inviting courts to much more thoroughly scrutinize the conditions that accompany government aid programs, ranging from public welfare funding to higher education scholarships.

This In Brief report was written by David Masci, Senior Researcher, Pew Forum on Religion & Public Life.

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