JTA, which describes itself as “The Global News Service of the Jewish People,” has posted an article discussing the divergent choices various Jewish groups have made regarding Christian Legal Society v. Martinez.  As the article explains, some groups have filed “friend of the Court” briefs supporting CLS’s constitutional freedom to draw its officers and voting members from among those who share its religious commitments — both doctrinal and moral.  Others plan to file in support of the government or sit the case out.

The article features several remarkable statements by Deborah Lauter, the National Director of Civil Rights for the Anti-Defamation League.  First, she implicitly characterizes CLS as a group that is “opposed” to non-Christians and those who engage in extramarital sexual conduct.  It is profoundly unfair and misleading to characterize CLS’s statement of faith requirement as “opposition” to those who have different religious commitments.  The statement of faith expresses CLS’s core religious beliefs, positively articulating what brings its members together.  The idea that the founders and leaders of CLS started with some “opposition” to non-Christians and then wrote the statement of faith to express that alleged “opposition” is absurd.

Second, Ms. Lauter suggests that if CLS prevails, public universities will be rendered utterly unable to address actual invidious discrimination.  I continue to find it amusing that opponents of CLS’s position, finding themselves unable to mount a persuasive case against CLS itself, must resort to parades of hypothetical horribles.  Her remark reflects a conflation of real discrimination (invidiously taking irrelevant characteristics into account) and the means by which a bona fide religious group legitimately maintains its religious character over time.

Third, Ms. Lauter said that it is “antithetical to democracy” to allow religious groups that consider religion in their hiring decisions to participate in federally funded social service programs.  “Democracy” produced the 1996 welfare reform law, which acknowledged the right of such religious groups to participate in the provision of services to needy people with public money.  Large numbers of both Democrats and Republicans voted for this legislation, and a Democratic president (Bill Clinton) signed it.  Can one plausibly call their handiwork “antithetical to democracy”?  It appears as though “antithetical to democracy” means “stuff ADL doesn’t like.”

Hastings states that no group can deny voting membership and leadership to any student on any basis (not just on the basis of characteristics listed in Hastings’ Policy on Nondiscrimination, like race and religion).  Under such a policy, a student chapter of ADL would not be able to withhold voting membership or an officer position from an avowed anti-Semite.  Does ADL really believe that Hastings would not violate ADL’s constitutional rights by revoking its registered status under such circumstances?  Perhaps ADL is confident that Hastings would selectively enforce such a policy by, say, withholding registered student organization status from CLS while conferring such status on it.  That might not be an unreasonable assumption:  in 2004, Hastings conferred RSO status upon La Raza (“the race”) even though its bylaws expressly limited membership and leadership to those “of Raza background.”

CLS v. Martinez Debate - ADF Attorney Greg Baylor, Professor Maureen Armour , Professor Linda Eads

Earlier this week, I participated in a debate regarding Christian Legal Society v. Martinez at Southern Methodist University’s Dedman School of Law in Dallas.  I argued that the U.S. Supreme Court should rule that Hastings College of the Law violated the Constitution when it refused to recognize its CLS chapter because the chapter draws its officers and voting members from among those who share its religious commitments.  SMU law professor Linda Eads energetically but graciously advocated a contrary result.

In my prepared remarks, I shared my belief that Hastings’ disagreement with CLS’s counter-cultural positions on religious doctrine and sexual morality was at least in part behind the school’s treatment of the CLS chapter.  Professor Eads essentially agreed with me, but then said something that truly surprised me – that Hastings should have the power to punish a counter-cultural group like CLS in order to promote “the culture it wants to foster.”

As I see it, a private educational institution, such a religious one, does have (and should have) the power to foster a certain kind of culture, free from the restraints the Constitution imposes upon government educational institutions.  But the First Amendment forbids the government from using its power to restrain the expressive activity of a group whose views contradict the government’s simply because of that disagreement.

My experience has been that many public university administrators fail to adequately grasp that the Constitution limits their power – something their  private school counterparts do not experience.  A greater understanding of this reality by America’s public colleges and universities would go a long way towards restoring freedom of speech on those campuses.

“As more and more campuses enforce discriminatory ‘nondiscrimination policies’, campus faith communities like Chi Alpha are forced to make an unjust choice:  either compromise our mission, values, and identity or lose the ability to meaningfully engage in campus life. This Supreme Court case will have lasting repercussions on students’ Constitutional rights.  Generations of university students will be impacted.”

Joe Gavin- Chi Alpha Vermont

Chi Alpha National Ministries has been a force for the Gospel on universities throughout the United States and around the world since 1953. Its members are college-age men and women earnestly following Jesus. The name “Chi Alpha” is inspired by II Corinthians 5:20. “We are therefore Christ’s ambassadors, as though God were making His appeal through us. We implore you on Christ’s behalf, be reconciled to God.” Inspired by this verse, the ministry chose the designation “christou apostoloi,” meaning “Christ’s sent ones,” to represent its membership. The Greek letters Chi (X) and Alpha (A) are the initials of this phrase which should remind us that we should live to accomplish the commission Jesus gave us.

Chi Alpha campus leaders aspire to embody the mission of the organization.  Because of their uncompromising faith, they have dealt with the non-discrimination statement issue on campuses across America over and over again. Most recently at the University of Vermont.

The Vermont Chi Alpha chapter was denied recognition by the Student Government Association (SGA) for the second time last year. The student chairperson denied Chi Alpha recognition because its constitution requires student leaders to be Christians and live according to Biblical ethics. The committee decided that the group was therefore “discriminating” on the basis of religion, a violation of the school’s nondiscrimination policy.

Failure to obtain official recognition constitutes a heavy penalty for this student campus group. Without recognition, the student members are unable to reserve space on campus for their weekly worship gatherings, information tables, or outreach events. They are also denied access to the student activities funds they themselves contribute to each semester.

While Chi Alpha Vermont continues to work toward recognition, it has its eye on the Court.

If your Christian campus group has faced this kind of injustice on campus, tell us about it.

Yesterday, a deluge of amicus (friend of the court) briefs supporting the Christian Legal Society were filed at the Supreme Court.   At least 21 briefs were filed in support of CLS, and I believe there are a few more that I have not seen yet.  This is a  substantial number of supporting amicus briefs, although not a record for the Supreme Court. 

   The broad array of briefs supporting religious liberty and the Christian Legal Society is amazing.  For example, 14 states, through their attorneys general joined togehter in a brief authored by the State of Michigan supporting CLS. The states include a geographic diversity from sea to shining sea of Alabama, Colorado, Florida, Idaho, Louisiana, Nebraska, New Mexico, Pennsylvania, South Carolina, South Dakota, Utah, Virginia and West Virginia.   

    Diverse religious groups agreed that the Constitution protects the right of a private group to define and select their officers and members. Muslim and Sikh groups joined African-American and Hispanic Christian pastors in an amicus brief by the Becket Fund.  Two Jewish groups filed briefs –  the Union of Orthodox Jewish Congregations and Agudath Israel of America also agree with CLS that religious liberty means a private group should be able to use its own theological standards to decide who qualifies as its leaders or members.

    Several briefs deserve special note.  A former Solicitor General of the United States under President George W. Bush, Paul Clement, co-wrote an amicus brief with Jay Sekulow and Walter Weber of the American Center for Law and Justice.  The Solicitor General is an important position in the U.S. Department of Justice that represents the U.S. Government before the Supreme Court.  It is very prestigious to have a former Solicitor General supporting CLS, but it is doubly important because the University of California-Hastings has hired another former Solicitor General, Greg Garre, to defend its use of its discrimination policy to kick CLS off campus.  

   The ACLJ brief is noteworthy because many major Christian campus organizations have joined the brief, such as Campus Crusade for Christ, Intervarsity Christian Fellowship,  Chi Alpha and others.  These organizations have suffered for years on college campuses, when officials require them to allow non-Christians to run or join their Christian organizations as the price to be able to meet on campus.  Of course, no other student group is required to accept students who disagree with the mission of the organization. For example, no university would require a student group supporting animal rights to accept as officers or members students who worked as lumberjacks, taxidermists, or who eat hamburgers at In-N-Out.   The universities with these policies force only the religious groups (really, only the Christian student grouprs) to accept nonadherents as members or officers.

    If you are looking for one amicus brief that advocates the right position in a clear, straightforward manner, I would point you to the brief filed by the Foundation for Individual Rights in Education (FIRE).  FIRE has fought for years on campuses around the nation for the rights of students, their organizations and faculty to speak freely, to advocate their ideas collective in free associations and to protect individual’s right of conscience against university censorship, punishment, banishment and opprobation.  FIRE’s brief is outstanding in its advocacy and model of clarity in its writing.

   Lastly, there is even a brief written by one of the most insightful and influential Christian theologians living today, Wayne Grudem.  Dr. Grudem wrote this brief on behalf of a number of evangelical Christian scholars and heads of the Evangelical Theological Society.  This brief explains the Biblical views followed by CLS on their religious beliefs to lead or join the organization, and their Biblical beliefs surrounding marriage and sexual purity.  It is well worth reading and studying.  Dr. Grudem, as he did in his Systematic Theology book and others, writes in a thorough and easy-to-understand manner.  

      UC-Hastings and its attorneys will have about a month to write their main merits brief.  The amici supporting Hastings will submit their briefs a week later during the second week of March.  Although the Supreme Court has not yet officially set an oral argument date for the CLS case, I predict that it will be during the Court’s sitting, which is the last two weeks of April.  The high court will probably hand down a decision in the case by late June, before the end of the Court’s term.

One of the more irritating assumptions in modern cultural/political life is the common theme one encounters on campus (and elsewhere) that the cultural Right restricts liberty while the Left defends it. And no one (allegedly) restricts liberty more than those tyrannical members of the “Religious Right,” with their repressive moral code and puritanical sensibilities.

If this is the case, then why is it — as a card-carrying member of the “Religious Right” — I have never in my career been involved in a case that limited or constricted pre-existing legal rights? Why is it that every successful case has resulted in greater liberty, not just for my clients but for the entire campus community?

Click here to read the rest of the story.

David French, Senior Counsel writing for NRO Phi Beta Cons