Supreme Court takes case of student group that bars gay members

Christian student group cites freedom of religion in disallowing gay members. The college cites its nondiscrimination policy. The Supreme Court has agreed to decide which will prevail.

The US Supreme Court on Monday agreed to take up a case testing the limits of religious freedom and association when those rights clash with a college's policy of nondiscrimination against gays and lesbians.

The Christian Legal Society (CLS) at the Hastings College of the Law in San Francisco was stripped of its registered student organization status at the college because it refused to allow gay and lesbian students to become voting members or officers of the group.

Under the Hastings nondiscrimination policy, student organizations must allow fellow students to join and potentially seek leadership positions in any organization without regard to their status or beliefs.

A statement of Christian faith

Starting in the 2004-2005 academic year, the CLS required prospective members to sign a statement of Christian faith. The statement includes a pledge that the undersigned student trusts in "Jesus Christ as my savior."

Prospective members must express belief in several religious tenets, including "one God, eternally existent in three persons, Father, Son, and Holy Spirit." The statement includes a pledge of belief in the virgin birth, eternal life, Jesus' resurrection, a divinely created heaven and earth, and that the Bible is the inspired word of God.

In addition, the national Christian Legal Society developed a policy position stating its view of biblical principles of sexual morality. The position, adopted by the Hastings chapter, said that "unrepentant participation in or advocacy of a sexually immoral lifestyle" was inconsistent with the group's statement of faith and would disqualify an individual from membership.

"A person who advocates or unrepentantly engages in sexual conduct outside marriage between a man and a woman is not considered to be living consistently with the Statement of Faith and, therefore, is not eligible" for membership in the CLS, according to the group's legal brief.

Official recognition denied

Hastings officials informed CLS that it would have to open its membership to all students despite their religion or sexual orientation. When the group refused, the law school denied CLS official recognition as a student group.

"No other student organization had ever refused to comply with Hastings' nondiscrimination policy and none has a membership policy like CLS's, which explicitly prevents Hastings students from joining on the basis of their religion, sexual orientation, or any other protected status," writes Ethan Schulman in a brief filed on behalf of Hastings.

Mr. Schulman says the college's nondiscrimination policy is designed to encourage "tolerance, cooperation, and learning among students of different backgrounds and viewpoints."

There are about 60 registered student organizations on the Hastings campus, including Hastings Outlaw (a gay rights group), Black Law Students Association, the Clara Foltz Feminist Society, Silenced Right: National Alliance Pro-Life Group, Law Students for Choice, Hastings Republicans, and Hastings Democratic Caucus.

CLS did not restrict students of different beliefs or perspectives from attending its meetings and events. The issue is over who can become a voting member and potential leader of the organization.

According to briefs in the case, CLS continued to meet on campus and conduct activities after its official status demotion. Between nine and 15 students regularly attended the meetings in 2004-05.

CLS filed suit in federal court, claiming Hastings officials violated its members' right to expressive association, free speech, free exercise of religion, and equal protection of the law.

The judge upheld the college's nondiscrimination policy as an acceptable regulation of CLS's conduct, rather than regulation of its speech. The Ninth US Circuit Court of Appeals also upheld the college's nondiscrimination policy. It found that the restrictions were neutral and reasonable.

Two circuit courts at odds?

In appealing to the US Supreme Court, CLS lawyer Gregory Baylor argues that the San Francisco-based Ninth Circuit's decision squarely conflicts with a 2006 decision of the Chicago-based Seventh Circuit. The Seventh Circuit case also involved a college-based chapter of the Christian Legal Society challenging a nondiscrimination policy.

In contrast, the Seventh Circuit ruled for the CLS, saying imposition of the nondiscrimination policy at Southern Illinois University School of Law undercut the group's ability to advocate its viewpoint.

That court concluded that "it would be difficult for CLS to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct."

In ruling for CLS, the Chicago-based appeals court applied strict scrutiny, the toughest level of judicial inspection to the school's actions. In contrast, the Ninth Circuit applied a lower level of scrutiny to the Hastings policy.

Colleges' public funding and antibias rules

In a statement after the high court announcement, Americans United for Separation of Church and State said the justices should use the case to establish the principle that public funding and official recognition on public college campuses must be open to all.

"Public schools have every right – indeed, an obligation – to refuse to advance religious discrimination," said the Rev. Barry Lynn, executive director of Americans United.

"This case is about fundamental fairness," he said. "If the student religious group wins, it will mean some students will be compelled to support clubs [through payment of required student activity fees] that won't even admit them as members. That's just not right," he said.

The case is Christian Legal Society v. Martinez. It will probably be argued next spring.

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