In a house editorial, the New York Times urged the U.S. Supreme Court to rule against Christian Legal Society and for Hastings College of the Law in CLS v. Martinez. What follows is a response, submitted to but not published by The Times.
In the case just argued before the U.S. Supreme Court, Christian Legal Society v. Martinez, the public should be wary of any superficial analysis that the case is all about “discrimination” by a Christian student club and a law school that wants to stop it. While it’s true that Hastings College of the Law in California prohibits “discrimination,” this assertion of what Hastings does is terribly misleading.
Hastings doesn’t just prohibit discrimination on the basis of the nine protected characteristics listed in its written Policy on Nondiscrimination; it also requires registered student organizations to confer voting membership and leadership upon everyone—even people who reject an organization’s core beliefs. As the Hastings dean stated in a PBS interview, this means that a black student organization would be required to allow adherents of the Ku Klux Klan to become voting members. Such a nonsensical policy goes far beyond preventing the sort of invidious reliance upon irrelevant characteristics that non-discrimination policies are designed to prevent.
A recent New York Times editorial referred to CLS as a “Christian group that bars non-Christian and gay students.” While CLS limits leadership and voting membership to those that share its values as many student clubs do, it allows everyone to attend its meetings and participate in its events. Moreover, CLS’s sexual conduct rule for officers and voting members does not target “gay students.” Tiger Woods and Mark Sanford, for example, aren’t “gay,” but if they were students, they would have trouble becoming CLS officers.
The Times editorial also stated, “For years, the Christian Legal Society chapter at Hastings adhered to this [non-discrimination] policy.” In reality, the two groups calling themselves “Christian Legal Society” at Hastings prior to the onset of the current dispute were not affiliated with the national CLS organization and are not the same as the one involved in the current lawsuit. Furthermore, the first one required its officers and voting members to sign its statement of faith, too—the very same one that the current CLS chapter uses.
So, is this case really just all about funding? No. The CLS chapter didn’t even intend to seek funding until the Hastings director of student services, after learning that two chapter leaders were going to the annual CLS conference, offered them travel funds—a $250 grant that was later revoked. The chapter is far more interested in access to meeting space and communications mechanisms—access that the Supreme Court has already ruled in Healy v. James cannot be denied to clubs like CLS.
And when money is involved, it is not used to pay “for discrimination.” Money used to pay for pizza at an event open to the public, for example, doesn’t become money for “discrimination” just because the event is sponsored by a group that wants leaders who share its views just like other clubs do.
It’s also not true that Hastings determined in 2004 that state law requires it to ensure that its student organizations do not permit discrimination. In fact, until this case reached the Supreme Court, Hastings never argued that the law required it to exclude CLS. And even if a state law did require Hastings to punish CLS, a state statute decidedly does not trump the obligations imposed upon Hastings by the U.S. Constitution.
In the end, the idea that Hastings has a valid interest in protecting its own reputation by distancing itself from groups that depart from its own views is, to put it mildly, disconcerting. At the heart of the Free Speech Clause of the First Amendment is a recognition that the government cannot use its considerable power to disfavor messages with which it disagrees, simply because it disagrees with them. While it is true that a government school can pursue a policy of “promoting diversity” and “opposing discrimination,” it is not free to use whatever means it chooses to pursue those objectives.
Because Hastings could not identify anyone who wanted to serve as a leader or voting member of CLS while rejecting its religious commitments, the school found it necessary to trot out its own “reputational interest” to justify its treatment of CLS. But if the First Amendment permits the government to punish a group so that the government can “make a statement” about its disapproval of the group’s speech, may God help us all. Any government punishment of dissenting speech becomes self-justifying.
Hastings wants to argue that it isn’t so terrible for a group not to be recognized. But would it accept that argument if, say, a university in the deep South in 1975 refused to recognize a student group formed for people involved in homosexual behavior? The fact of the matter is that CLS members pay student activities fees like all other students do. Access to meeting space and the use of communications mechanisms are vitally important. If they aren’t, why does Hastings (and virtually every other university and college in the country) confer such benefits upon student groups?
For these reasons, it’s logical for people of all beliefs to support a Supreme Court ruling in CLS’s favor. And that’s precisely why 14 state attorneys general and nearly 100 diverse groups representing a wide variety of beliefs and practices filed briefs in support of CLS in this case.
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