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Jewish Groups Split on CLS v. Martinez

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.”


ADF Senior Counsel - University Project

CLS v. Martinez: A Debate at SMU Law

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.


ADF Senior Counsel - University Project

From "In Loco Parentis" to Just Plain Loco

Posted on December 8th, 2009 Freedom of Speech,Uncategorized | No Comments »

If it weren’t bad enough that some colleges and universities think they need to tell students how to think and what to believe, one public university has actually tried to force students deemed overweight—by the university—to exercise.

Beginning with entering students in 2006, Lincoln University, a public university in Pennsylvania, instituted a requirement that any student with a Body Mass Index (BMI) of 30 or more would be required to take a physical fitness course called “Fitness for Life” in order to graduate.  The students’ BMI was not self-determined—rather, it was determined through a mandatory exam by college officials.  If a student had a BMI of 30 or higher, they were required to take the fitness course in order to graduate.

Student Tiana Lawson protested the requirement in The Lincolnian:

I didn’t come to Lincoln to be told that my weight is not in an acceptable range. I came here to get an education which, as a three time honor student, is something I have been doing quite well, despite the fact that I have a slightly high Body Mass Index.

Ms. Lawson’s editorial brought national attention to this policy, and it was thankfully repealed last week after the university received several complaints. 

This is one of the more ridiculous university policies I’ve ever heard of—it is condescending, paternalistic, and intrusive, as Temple University Law Professor David Kairys points out.  There is nothing wrong with encouraging students to adopt a healthy lifestyle, but this policy crosses the line.  As Ms. Lawson pointed out, the students are there to receive an education, not to have their personal characteristics scrutinized by a “nanny” university.

Given their recent attempts to control the bodies and exercise schedules of their students, it is not surprising that the school also apparently attempts to control student speech.  Lincoln University has a “red light” rating  from FIRE with regard to its policies affecting speech.  One policy prohibits “actions, words, jokes, or comments based on an individual’s sex, race, color, national origin, age, religion, disability, or any other legally protected characteristic.” 

The irony of prohibiting students from simply making a “comment” about someone’s characteristics but essentially calling some of its students too “fat” to graduate was apparently lost on Lincoln.  Let’s hope Lincoln’s speech code soon goes the way of the fitness requirement, and Lincoln students are as free to exercise their First Amendment rights as they are to choose whether they want to exercise.


ADF Legal Counsel - University Project

U.S. Supreme Court agrees to hear lawsuit against UC-Hastings

Posted on December 7th, 2009 freedom of association | 5 Comments »

The Supreme Court will decide whether the Constitution allows a public university to use a “non-discrimination” rule to punish a religious student group that draws its leaders and voting members from among those who share its religious commitments.  The Court announced today that it will review a lower court decision in Christian Legal Society v. Martinez, a case involving the University of California’s Hastings College of the Law.

Christian Legal Society (CLS) is an association of Christian lawyers, law students, judges, and law professors.  The foundation of CLS is faith in Jesus Christ.  Like many religious organizations, it adopted a statement of faith setting forth its basic religious beliefs.  In addition, CLS has expressed its adherence to the traditional Christian view of human sexuality, i.e., that sexual intimacy should occur only within the bond of a marriage between one man and one woman.

Hastings encourages the formation of student groups by offering them numerous benefits, including access to meeting space, communications mechanisms, and funding.  A group of CLS law student members at Hastings formed a CLS chapter and sought recognition from law school officials.  CLS indicated that all are welcome to attend CLS meetings but that the chapter’s leaders – as well as those who select them – must be CLS members.  One must sign the statement of faith to be a CLS member.

Hastings concluded that CLS’s religious standards for leadership and voting membership constitute “discrimination” on the basis of religion and “sexual orientation.” In response, CLS pointed out that its leadership and membership policies are not “discrimination,” which is properly defined as the invidious reliance upon irrelevant personal characteristics.  CLS also argued that its sexual morality standards do not constitute “sexual orientation,” given their emphasis on conduct rather than “orientation” and given that all extramarital sexual conduct is considered sinful, whether same-sex or opposite-sex.

Hastings rejected these arguments, and CLS asked the federal courts to vindicate its constitutional rights.  Both the federal district court in San Francisco and the U.S. Court of Appeals for the Ninth Circuit sided with Hastings.  And now the Supreme Court will consider the case.

Much is at stake.  CLS itself has numerous chapters at law schools across the country.  Many of them have fought successfully for their religious freedom, often through litigation.  Many other campus religious groups draw their leaders from among those who share their religious commitments.  If the Court rules against CLS, public universities could force student groups to accept as leaders and voting members individuals who oppose the groups’ beliefs.

More broadly, the freedom of all religious groups – not just campus organizations – to associate around shared religious commitment is under attack.  For example, the ACLU and its allies are working to exclude faith-based social service providers from federally funded programs on the ground that they “discriminate” on the basis of religion and “sexual orientation.”

It is no secret that theologically conservative Christianity is not particularly popular with the elites who control much of America’s higher educational system.  The traditional view of human sexuality is seen as a particularly galling departure from the prevailing campus orthodoxy.  University administrators, moreover, seem to have a lot a trouble complying with the First Amendment.  Let us pray that the Supreme Court will vindicate the foundational principles underlying our first freedom.

Who’s talking about this case?
The Volokh Conspiracy
NRO:Phi Beta Cons
The Chronicle of Higher Education
The Fire


ADF Senior Counsel - University Project

Is the Supreme Court Getting Ready to Rule on the Rights of Campus Student Groups?

Posted on November 13th, 2009 Uncategorized | 2 Comments »

Observers of the United States Supreme Court are noting the unusually-long scrutiny the justices are giving to Christian Legal Society v. Martinez, the case where the University of California-Hastings (in San Francisco) denied permission to the Christian Legal Society to meet on campus because it ran afoul of its nondiscrimination policy, as ADF has seen on other university campuses.  Specifically, CLS requires its leadership to agree with the Christian group’s statement of faith in Christ and to obey the Bible’s teachings to abstain from sexual relations outside of marriage, defined as one man and one woman.  UC-Hastings claims CLS engages in “religious discrimination” because atheists and Buddhists cannot become leaders of the Christian Legal Society.  Of course, environmentalist groups or other ideological student groups are free to require that potential officers or members agree with the viewpoints they advocate in order to join.  UC-Hastings also views CLS’s views on sexual purity before marriage as “sexual orientation” discrimination. 

The Christian Legal Society sued, claiming that UC-Hastings was violating its First Amendment right to expressive association.  The federal district court ruled against CLS.  The U.S. Court of Appeals for the Ninth Circuit also earlier this year ruled against the Christian Legal Society, in a decision shorter than a haiku.  The decision, in its entirety, states:

The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group.  The conditions on recognition are therefore viewpoint neutral and reasonable.  Truth v. Kent Sch. Dist., 542 F.3d 634, 649–50 (9th Cir. 2008).

So CLS appealed to the U.S. Supreme Court.  The respected SCOTUSblog highlighted this case as an important one to watch at the Supreme Court.  According to the schedule, everyone expected the Supreme Court to decide whether to take the case by late September.  But no one imagined that by mid-November we would still be waiting for the Supreme Court to act.  Normally, when a case is appealed to the Supreme Court, it is set for conference (a meeting of the nine justices).  A few days later, the Supreme Court issues an orders list from that conference, stating whether the high court will agree to hear the cases considered at that conference or not.

However, the Supreme Court has now delayed deciding what to do with the case for six conferences.  This is so unusual that it has caught the eye of veteran Supreme Court observer Tony Mauro who wondered Thursday in his blog about what is going on with the case.

The Supreme Court has now set the case for its sixth conference for Friday, November 13, after calling for the U.S. Court of Appeals for the Ninth Circuit to send up the record in the case.  Calling for the record is also an odd and unusual step for the justices to take.  What is going on here?  Are the justices agonizing over some issue or fact?  Are they struggling to reach a consensus on what to do with the case?

For what it’s worth, here is my speculation.  We know for sure that at least one or more justice is interested in the case because it takes a conscious, affirmative act by the justices to pull a case off the orders list, especially when it happens six times in a row.

Possibly, the justices want to examine the record to see what exactly is UC-Hastings’ policy.  UC-Hastings has shifted between two positions on what its policy is.  At times in the litigation, the University has claimed that it singled out CLS for exclusion from campus becasue CLS was “guilty” of religious and “sexual orientation” discrimination by the way it limits its membership to conform with its beliefs.  At other times, UC-Hastings has stated (as the Ninth Circuit’s decision reflects) that its policy was to require all student organizations to accept any students as members.  So the vegetarian club would have to accept deer hunters and steak lovers as members, the Socialist club would have to accept free market libertarians as members, etc.

The latter policy (all groups must accept any student as a member) is massively overbroad and shockingly unconstitutional.  The University cannot possibly justify a policy that prohibits all students from forming any group limited to like-minded individuals.  If the Supreme Court accepts the case for review and addresses that policy, we might have a 9–0 reversal of the Ninth Circuit.  But is that the policy UC-Hastings has or not?  Maybe that is why the high court has called for the record from the lower courts.

ADF has other cases in the pipeline that the Supreme Court could take to address the more limited question of how the nondiscrimination policy banning religious and “sexual orientation” discrimination apply to private student groups meeting on a public university campus.  The Supreme Court does not necessarily need to address that question in the UC-Hastings case.

So, what will happen?  Will the Supreme Court grant review and hear oral arguments?  Will it summarily reverse and reject the horribly unconstitutional policy of UC-Hastings requiring all student groups to accept any student?  Will it simply deny review after examining the case for weeks?  And when will that happen?  We simply don’t know, so the speculation mounts.  Maybe we will get some clarity from the Supreme Court on Monday, but who knows?  Stay tuned.


ADF Senior Vice President; Senior Counsel - University Project

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