The United States Supreme Court decided not to hear a case today.  Alpha Delta Chi (ADX) v Reed.  But that’s not really news considering that they decide not to hear about 99% of the cases brought to them.  What is news though is that the issue in the case of whether religious groups can chose leaders who share their religious beliefs remains hotly contested on the national level.

If you keep up with the news, you know that universities across the country are singling out religious groups and claiming that it is “discriminatory” for them to choose leaders that share the same religious beliefs.  Like in this case where a Christian sorority and fraternity wanted to be lead by Christians.  I know, you are probably thinking—you are kidding me, right?  Isn’t it just common sense that every church, synagogue and other religious group has the right to be lead by pastors, rabbis, etc. of the same religious persuasion?  I mean, wouldn’t we all be shocked if we went to church on Sunday only to find an avowed atheist in the pulpit?  Therein lies the rub.  This is law, not logic.

What’s even more disturbing, and indicative of the hostility that many public universities display toward religion, is that there is no requirement in the law that they prohibit religious groups from choosing like-minded leaders, only that they may—under certain circumstances—prohibit them.   And those circumstances are being fudged.  What do I mean by that?  Last year the Supreme Court held in CLS v. Martinez, based on a stipulation that all groups were required to accept anyone, that no group could then “discriminate” against anyone.  Sound fair?  Not if you dig a bit deeper.

By way of example, let’s examine that issue in this case, ADX.  The university is claiming that they too–like Martinez–have a so-called “all-comers” policy.  But they exempt all fraternities and sororities from the prohibition on gender discrimination, thus not requiring them to accept all-comers, and that is half of all clubs.  And this doesn’t even take into consideration that in real life student groups choose whomever they want, thereby excluding whomever they don’t want.  So it is really a “some-comers,” or more accurately, an “anyone-we-want-comers” policy.  And last time I checked, religious speech and exercise are protected not once, but twice in the First Amendment.   One would think that would weigh heavily in the discussion.

So the Supreme Court’s decision not to hear this case just ensures that the battle continues.  Universities will continue claiming that they have legal cover to discriminate against religious groups, and religious groups will continue to fight to remain, well, religious.  And it is more important than ever for religious groups to continue fighting for this God-given right to be religious.  As the battle rages on, it becomes more and more likely that the Supreme Court will have to weigh in on the issue at some point.

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ADF will continue the fight for the rights of private student organizations to define their membership and select their leaders without interference or retaliation by state university officials.  Please contact ADF if you are encountering similar problems at your state university.

The Supreme Court let stand the lower court decision upholding San Diego State’s discriminatory exclusion of a Christian fraternity and a Christian sorority from access to the channels of communication with students on campus. In a one sentence order with no comment, the Supreme Court declined to hear the case.  San Diego State prohibited campus Christian organizations from requiring their members and leaders to agree with the organization’s statement of faith, but allowed other student organizations to require members and leaders to agree with the viewpoints the groups advocate.  The Ninth Circuit upheld the San Diego’s State’s requirement as constitutional, and ADF appealed to the Supreme Court.

ADF attorney David Cortman issued the following statement in response to the Supreme Court’s actions:

“Public universities should encourage, not censor, the free exchange of ideas. But for now, the supposed marketplace of ideas at San Diego State University will remain a stronghold for censorship. We wish the Supreme Court would have used this opportunity to make clear that the First Amendment protects the right of student groups to employ belief-based criteria in selecting their members and leaders.”

“Throughout the years of defending its policy, the university did not tell the Democratic club it must be led by a Republican, or the vegetarian club that it must be led by a meat-eater, but it did tell Christian groups that they must allow themselves to be led by atheists. Even its purported, 11th-hour policy change made at the doorstep of the Supreme Court continues to treat religious groups less favorably than many other student groups. When political conformity is placed ahead of the constitutionally protected rights of students, all students–including students of faith–suffer.”

ADF will continue the fight for the rights of private student organizations to define their membership and select their leaders without interference or retaliation by state university officials.  Please contact ADF if you are encountering similar problems at your state university.

The U.S. Supreme Court should announce Monday whether it will hear the ADX v. Reed case from San Diego State.   We have discussed this case before and it involves a bad decision by the Ninth Circuit upholding the decision of San Diego State officials to force a Christian fraternity and sorority on campus to allow non-Christians to join, even though SDSU allows secular student groups to exclude from membership and leadership students who disagree with the groups’ viewpoints.  So that means the student vegetarian club can exclude those who advocate for meat eating and animal hunting, but Christian groups cannot exclude those advocating atheism or Buddhism, etc.

This case is a follow up to the Supreme Court’s disappointing decision in Christian Legal Society v. Martinez in June 2010, in which it upheld an “all comers” policy at UC-Hastings Law School in San Francisco, a policy that forced all student groups to allow all students to join their club.   Late last year, San Diego State tried to subvert our appeal to the Supreme Court by abruptly adopting an all comers policy, even though it has defended its religion-specific policy for years in court.  The Supreme Court should realize its orders list at 10:00 am Eastern Time.  Stay tuned.

When the U.S. Supreme Court ruled against CLS in Christian Legal Society v. Martinez in June, the case was not over.  The Court sent the case back to the U.S. Court of Appeals for the Ninth Circuit for consideration of CLS’s claim that Hastings’ “all-comers” policy was selectively enforced.

In a motion filed July 30, 2010, CLS urged the Ninth Circuit to address that issue.  On August 9, Hastings and Hastings Outlaw filed their oppositions to CLS’s motion, essentially urging the court to end the case without consideration of the school’s unconstitutionally selective application of its all-comers policy.  Yesterday, August 19, CLS filed its reply.  We now await the Ninth Circuit’s ruling.

Last week, the Supreme Court issued a disturbing opinion that will directly impact students’ constitutional rights on public university campuses throughout the nation.  In CLS v. Martinez, the Court affirmed the facial constitutionality of a University of California-Hastings policy that forces student clubs to allow all Hastings students to become club members and leaders—even students hostile to the clubs’ purpose and core beliefs.  My colleagues have written several posts which provide in-depth analysis of the meaning and likely impact of this case.

In particular, David French aptly explains that the decision is both narrow and troubling.  Narrow, because Hastings’ “all comers” policy is virtually the only one in existence at a public university.  Troubling, because the decision’s sweeping language appears to significantly weaken the freedoms of speech and association.  But the actual impact of the decision still remains to be seen.  One of the primary concerns is that the decision will create a knee-jerk reaction in the courts to uphold standard nondiscrimination policies that were not at issue in Martinez. 

A similar trend began to emerge in the wake of Wallace v. Jaffree, a case where the Supreme Court reviewed an Alabama statute that authorized a daily moment of silence in the public schools.  The facts at issue demonstrated that this was indeed an extreme case.  Both the senate sponsor of the law and the Governor admitted that the statute’s sole purpose was to return prayer to the public schools.  Additionally, certain teachers at the plaintiff’s school had been using the period of silence to lead their classes in group prayers on a daily basis.  And the State of Alabama had previously tried multiple times to inject prayer into its public school system by passing school prayer laws, but each effort was rebuked by a federal court.  The Court explained that these factors showed that Alabama was not neutral towards religion as required by the Constitution, but was instead forcing prayer on its students.  The Court indeed made clear that under other circumstances, the protection of voluntary student prayer during moments of silence was a constitutionally permissible goal:

The legislative intent to return prayer to the public schools is, of course, quite different from merely protecting every students’ right to engage in voluntary prayer during an appropriate moment of silence during the schoolday.

Despite this clarification, because the case was the only word from the Supreme Court on moments of silence, courts immediately began to strike them down.  The same year Wallace was decided, a federal appellate court struck down a moment of silence law even though it had none of the egregious circumstances present in Wallace.  For twelve years, the legal landscape looked ominous for the moment of silence.  But finally, in 1997, the U.S. Court of Appeals for the Eleventh Circuit upheld Georgia’s moment of silence statute.  And soon after this decision, three other federal courts of appeal upheld similar statutes.

But to this day, Wallace continues to cast a shadow over federal courts and legislative bodies. Indeed, a federal district court in 2009 invalidated Illinois’ moment of silence law based on Wallace.  This decision has been appealed and the ADF Center for Academic Freedom is urging the U.S. Court of Appeals for the Seventh Circuit to reverse.  The court’s decision will go far in determining the breadth of Wallace’s impact.  Notwithstanding, opponents of religious liberty will continue to raise Wallace in court and in legislative bodies to defeat moments of silence wherever they are implemented or even considered.  

We are quite sure that university officials will invoke Martinez for as long as they can in order to push religious student groups to the fringe of the college campus.  But they should be aware, that Martinez is an extremely narrow decision that provides little refuge for the vast majority of nondiscrimination policies at American universities.  The ADF Center for Academic Freedom maintains that such policies, when used to compel belief-based groups to accept non-adherents, are unconstitutional.  We will continue to defend the constitutional rights of student groups burdened by such policies, and will insist that the courts strictly hold Martinez to its narrow terms.