CLS v. Martinez: Religious Discrimination on Campus?

By on March 4, 2010

Two legal scholars–Marci Hamilton of Findlaw.com and Gregory Baylor of the Alliance Defense Fund–debate the Supreme Court case CLS v. Martinez.

marcia-hamiltonMarci A. Hamilton
Findlaw.com

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Yeshiva University and the author of Justice Denied: What America Must Do to Protect Its Children and God vs. the Gavel: Religion and the Rule of Law. She is a columnist for Findlaw.com.

greg-baylorGregory S. Baylor
Alliance Defense Fund

Gregory S. Baylor is senior legal counsel with the Alliance Defense Fund, which is jointly defending the CLS chapter at Hastings College of the Law together with the CLS Center for Law & Religious Freedom before the U.S. Supreme Court.

Part 1: Marci A. Hamilton: Must a Public Law School Recognize a Christian Group?

In April, the Supreme Court will wade into the culture wars morass, with the oral argument in the case of Christian Legal Society Chapter of University of California, Hastings College of Law v. Martinez.

On one side are the members of the Law School's chapter of the Christian Legal Society (CLS), who demand official recognition as a student group, as well as school funds for their activities.

On the other side is the Law School, joined by OUTLAW (an organization supporting homosexual students). The Law School is denying recognition to the organization because its rules violate the University's anti-discrimination policies.

Putting the doctrinal issues aside, and I will address them shortly, this is an iconic clash of contemporary cultures.

The Organization's Rules, the Law School's Anti-Discrimination Policy, and the Low Practical Stakes Here

Under CLS's rules, which reflect their religious beliefs, anyone can attend their meetings, but no one who engages in sex that occurs outside of marriage between a man and a woman may be an officer or prayer leader. In other words, homosexuals need not apply. There is no doubt that these are sincere beliefs. CLS also has been active in the states in trying to secure the right of landlords to refuse to rent to homosexual couples and to unmarried couples.

The Law School has a policy of non-discrimination, which encompasses a number of categories, including sexual orientation. Because CLS discriminates against homosexuals, the Law School refused to recognize it as an official student group.

At the level of basic common sense, this case hardly seems worth the candle. Registered student organizations at the Law School can use the Hastings logo and name, employ certain means of communicating, access certain law school facilities, and receive some funds. Non-registered organizations, however, still have access to rooms and bulletin boards and other means of communication, not to mention the Internet, which dramatically reduces barriers to promoting any group's message. So CLS is, at base, fighting over a logo—one that represents the school's imprimatur—and relatively small sums of money.

Ultimately, this case is simply one more in a growing number of disputes in which religious organizations treat government funds as if they were entitlements. The logic goes this way: If others are receiving government funds, the religious groups must be permitted to receive them as well, despite the Establishment Clause, the Constitution's separation of church and state, and the fact that they would be taking money from government entities that have staked out positions that are diametrically opposed to their core religious beliefs.

Why CLS's Contentions Are a Poor Fit with the Court's Free Speech Precedents

CLS is attempting to shoehorn the case into the Court's free speech cases, but that is a real stretch. The school is not blocking CLS's recognition based on the content of its message, as was argued to be the case in Rumsfeld v. FAIR—which objected to the military's "Don't ask, don't tell" policy and therefore tried to exclude military recruiters from campus. Congress passed the Solomon Amendment, though, which required schools to either host military recruiters or lose their federal funding—and the schools sued. Ultimately, the Court held that there was no free speech violation, because the policy did not interfere with the schools' message: Even though the schools would have to host the military recruiters—that is, provide them with rooms and means of communicating with the students—the schools could still affirmatively broadcast their objection to the military's policies.

Under that reasoning, CLS has an even weaker argument than the law schools did. It is not being forced to host or carry message with which it disagrees. Indeed, the FAIR reasoning brings into question why CLS would even want the Law School's logo and imprimatur in the first place. The Law School stands for the proposition that every person deserves equal treatment, regardless of sexual orientation or other characteristics. That proposition is in sharp opposition to CLS's own core and self-defining beliefs. And it seems outright irrational for CLS to seek the imprimatur of an institution that is so openly opposed to CLS's exclusionary beliefs.

Indeed, one has to wonder: in order for CLS to be fully satisfied, wouldn't the group need the Law School to both recognize it and drop its anti-discrimination policy insofar as it protects homosexuals? So is this just "stage one" in their campaign at the school?

The argument that CLS makes in its opening brief to the Court is that other groups are "permitted to maintain their identity, cohesion, and message by limiting their leadership and membership to students who share their core beliefs." Thus, OUTLAW "reserves the right to remove any officer who 'work[s] against the spirit of the organization's goals and objectives.'" Yet, CLS has misstated the Law School's policy: That policy states that no organization is permitted to put its—or its members'—discriminatory beliefs into action. It does not forbid any group from believing or proclaiming whatever it chooses. But to obtain the school's logo and imprimatur, it cannot engage in discrimination.

It is also clear that exclusion is the issue and not content- or viewpoint-based speech discrimination, because the policy wasn't created to affect CLS or any religious group; it applies equally to all law student groups. So if OUTLAW refused to permit heterosexual leaders, or if a feminist organization prohibited male leaders, both would be denied registration by the Law School in precisely the same way that CLS has been denied it.

A Case that Reflects Core Issues Within the Troubled Republican Party

CLS also rests heavily on the assumption that no Republican would ever want to join a Democratic student group, and vice-versa, on the apparent assumption that those organizations must always be politically pure—and hence, all student groups must have the right to police their own membership in a discriminatory way. According to CLS, it is just acting like any of these "pure" political organizations that obviously would despise and reject anyone who was not in the same Party. But the assumption that there would never be political crossover is just silly, particularly in light of the recent election of President Obama by Democrats and Republicans alike, and in light of the rise of Independents who are perfectly willing to migrate between candidates and policies according to their own lights. Men have worked with feminists, heterosexuals have supported homosexual causes, and students routinely switch between Republican and Democrat parties and views as their political views mature in college.

This case is also a microcosm of what has gone so wrong in the Republican Party. There was a time when the Republican Party and "conservatives" were the monitors of government spending. They believed in limited government, balanced budgets, and fiscal responsibility. They also acted on those principles. Those were the years when Republicans had a transformative vision.

In those years, too, powerful religious groups and leaders on the right side of the political spectrum publicly and vehemently rejected government funding for religious organizations. For example, Moral Majority founder Jerry Falwell said on Beliefnet in 2001:

"I have pastored the same church 45 years, and I've served as chancellor of Liberty University and was the founder for the past 30 years and…we have never accepted any government grants or funding, whether federal, state, or local. We have done that by design so we could never be challenged regarding our philosophy and our practices. It is doubtful that we will ever apply for any assistance under the faith-based initiatives, as Mr. Bush has proposed them. I may change that once I have seen enough years of safety and consistency with no strings attached, but at the present moment I would not want to put any of the Jerry Falwell Ministries in a position where we might be subservient to a future Bill Clinton, God forbid."

Pat Robertson also rejected public funding of religious organizations, on the theory that there was no way to ensure that the money only went to Christians, Jews, and Muslims, but not cults.

But once the Republican Party was in power, these leaders' concerns apparently vanished. Robertson accepted over a million dollars of government funding from Bush's faith-based initiative. According to David John Marley's 2007 book, Pat Robertson: An American Life, "Despite his concerns over certain aspects of the [faith-based initiative] program, Robertson's Operation Blessing was one of the first groups to receive federal funding. In October 2002 the group won a $500,000 grant that was renewable for three years. Robertson never criticized the program after the money started rolling in."

Around the same time, conservative religious groups started to line up for government funds wherever they were available, whether from the federal government for mission, or from universities. Instead of being concerned about the strings attached to the funds, and about having their message diluted, they adopted a position, like CLS's, that if anyone else gets funds, then they are entitled to funds as well.

When religious groups abandon their principles because government funding is available from their cronies, and invest in expensive appellate litigation to obtain whatever government benefits they seek, one can hardly expect that everyone else will not line up, too. So much for the Republican vision.

If anyone needed proof that the Republican Party has fundamentally lost its way, and that it desperately needs someone with vision to return it to its principled base (as opposed to its current so-called "base"), this case is it.

This article originally appeared on Findlaw.com. Reprinted by permission of FindLaw.com, a Thomson Reuters company.

Part 2: Gregory S. Baylor: Freedom of All Student Groups at Stake in CLS Case at Supreme Court

Marci Hamilton's column for this site regarding Christian Legal Society v. Martinez states that this case will cause the Supreme Court to "wade into the culture wars morass." To be sure, this case arises out of a leftwing university's attack on a theologically orthodox religious group. However, the legal principles involved transcend the particular positions taken by the contending sides on religious and moral questions. At stake is the freedom of all student groups to choose leaders who share their respective missions, free from undue government pressure. For decades, counter-cultural groups have invoked the First Amendment to protect themselves from hostile university administrators. In the past, groups on the Left resisted officials they perceived to be conservative. Now the roles are reversed. Just as the courts vindicated the Constitution in those cases, they should do so now as well. There is no need for the Court to "choose sides" in the culture war. It simply needs to uphold the Constitution.

Professor Hamilton declares that "no one who engages in sex that occurs outside of marriage between a man and a woman may be an officer or prayer leader." This is simply incorrect. CLS stated as follows on pages 35-36 in its opening brief filed in the Supreme Court:

In accordance with traditional Christian teaching, the CLS chapter does not exclude all those who engage in what they regard as immoral conduct, sexual or otherwise: The CLS membership policy excludes only those who do so "unrepentantly, " which is religion-speak for those who do not regard the conduct as wrong or sinful and resolve to cease acting in that manner. Thus, far from excluding people on the basis of orientation, the CLS Statement of Faith excludes them on the basis of a conjunction of conduct and the belief that the conduct is not wrong.

Given that the remainder of Professor Hamilton's column reveals that she read CLS's opening brief, this misstatement of CLS's position regarding human sexuality is surprising. Moreover, this approach to sexuality (i.e., differentiating among the experience of same-sex sexual attraction, the participation in same-sex sexual intimacy, and the persistent and unrepentant participation in such conduct) is not unique to CLS; many religious groups do likewise. To suggest that groups like CLS embrace and impose more categorical "rules" is misleading, and in a way that does not put CLS in a good light. Nuances matter when it comes to people, and they matter when it comes to language and the law.

The very next sentence of Professor Hamilton's column characterizes CLS's policies this way: "In other words, homosexuals need not apply." This is, at best, grossly misleading. Individuals who experience same-sex sexual attraction are eligible for membership and leadership in CLS. To the extent the word "homosexuals" is understood to include such persons, Professor Hamilton's assertion that "homosexuals need not apply" is false. To the extent that the word "homosexuals" includes people who do not engage unrepentantly in extramarital sexual behavior, Professor Hamilton's characterization of CLS's policies is also false.

Next Professor Hamilton states that "[b]ecause CLS discriminates against homosexuals, the Law School refused to recognize it as an official student group." This statement, ambiguous itself, ignores the other reason Hastings gave for denying CLS the valuable benefits of registered student organization status: the fact that it draws its leaders and voting members from among those who voluntarily sign its statement of faith, something Hastings deemed "religious discrimination." This case is not only about the emotionally and culturally explosive conflict over human sexual behavior, but also about the freedom of religious groups to consider religious belief (e.g., whether the Bible is inspired, whether Jesus is divine) in choosing their leaders.

Professor Hamilton next argues that "this case hardly seems worth the candle." I respectfully disagree. First, the column misstates the identity and value of the benefits Hastings confers on every group but CLS. It is undisputed that Hastings has denied CLS access to the customary means by which student organizations communicate with the student body, such as the annual Student Organizations Fair, the law school newsletter, bulletin boards, mailboxes, or weekly email announcements of activities. Although Hastings has offered to allow the CLS chapter to use meeting rooms as a matter of sufferance during the pendency of the litigation, Hastings has reserved the right to charge CLS a fee and to revoke the privilege of meeting at any time.

Professor Hamilton's suggestion that these benefits are not valuable is hard to square with their existence and their widespread use by registered student organizations. If these benefits were not valuable, why would Hastings go to the trouble and expense of creating them and conferring them upon student groups? Why would student groups regularly use them to pursue their diverse missions? I've spoken at a number of law schools this semester, and the leaders of various student groups have unanimously confirmed the importance of the various benefits universities provide to their groups.

The denial of such benefits is constitutionally significant. Healy v. James, Widmar v. Vincent, Rosenberger v. Rector of the University of Virginia, and numerous lower court decisions unambiguously hold that the denial of such benefits is a constitutionally cognizable injury. The fact that CLS is not utterly without alternative (but undeniably less effective) means of pursuing its mission and communicating its message is both legally irrelevant and factually unpersuasive. It is hard to imagine that one would so easily dismiss the harm suffered by a group if a law school withheld benefits from the group on the basis of some reason deemed less defensible, e.g., because the group included primarily African-American students. The bottom line is that it is simply false to suggest, as Professor Hamilton does, that this case is about CLS's desire for the Hastings "logo and imprimatur."

Moreover, Professor Hamilton does not consider the additional way that the courts have assessed the burdens that governments impose upon religious organizations through the application of religion and "sexual orientation" nondiscrimination rules. In addition to examining the benefits denied, courts assess the effect of complying with the rule in question. In this case, there can be little doubt that forcing CLS to have an atheist lead its Bible studies would undermine its ability to formulate and communicate its preferred message. Similarly, CLS would not be able to effectively convey its message regarding sexual morality if it were unable to remove a hypothetical Mark Sanford, Tiger Woods, or Eliot Spitzer from a leadership post.

Next, Professor Hamilton asserts that "this case is simply one more in a growing number of disputes in which religious organizations treat government funds as if they were entitlements." Religious groups, like all others, are "entitled" to the treatment that the Constitution mandates. And it is not wrong for religious groups to take action to vindicate their constitutionally protected rights. Professor Hamilton contends that such groups seek equal treatment "despite the Establishment Clause, the Constitution's separation of church and state, " apparently suggesting that Hastings would violate that provision of the First Amendment by giving CLS access to its speech forum. But the Establishment Clause plainly does not require Hastings to withhold registered student organization status from CLS. The Court's decisions in Widmar and Rosenberger settled that question.

Professor Hamilton believes that it is somehow inappropriate – even "irrational" – for religious groups like CLS to seek access to speech forums "from government entities that have staked out positions that are diametrically opposed to their core religious beliefs." I honestly don't see why this is inappropriate. CLS wants to pursue its mission, and access to meeting space, funding, and communications mechanisms provided by the law school will help it do so. Its receipt of the benefits of recognition is entirely consistent with Hastings' stated purpose of encouraging a robust debate on a virtually unlimited set of topics. CLS's use of meeting space, funding, and communications mechanisms does not cause it to compromise its integrity in any way. In any event, it is one thing for a government entity to "stake out a position" with which a religious group disagrees; it is quite another for the government to use its power to pressure a religious group to conform its perspective to that of the government. That is precisely what Hastings is doing, and this goes to the core of the Free Speech Clause.

Professor Hamilton next contends that CLS's argument that Hastings violated its Free Speech Clause rights "is a real stretch." Again, I disagree. Professor Hamilton fails to address the significance of the Supreme Court's decision in Boy Scouts of America v. Dale, in which the Court held that the First Amendment forbids the application of a "sexual orientation" non-discrimination law to an organization that considers homosexual conduct immoral. In my opinion, her attempts to distinguish Rumsfeld v. FAIR and Rosenberger are unpersuasive. In Rumsfeld, the law schools lost because military recruiters would not become "members" of the law schools, undermining their claim that hosting the recruiters would substantially undermine their ability to communicate their position in favor of homosexual activism. The Court indicated that if the government were conditioning the receipt of a benefit upon a group's acceptance of members who oppose the group's mission, the Constitution would be violated. Hastings will not recognize CLS unless it allows those who reject its religious commitments not only to become "members, " but also to become officers. Accordingly, the Rumsfeld decision supports CLS's position.

Professor Hamilton gets one thing right: she observes that Hastings is "openly opposed" to CLS's beliefs. To be sure, this observation is the starting point for her somewhat strange assertion that it is "irrational" for CLS to seek access to speech forum at a public law school that is committed to punishing CLS because of its disagreement with the prevailing orthodoxy. In any event, her observation about Hastings' opposition to CLS's beliefs gets to the heart of this case. It is not about Hastings preventing an invidious discriminator from denying protected minorities some valuable benefit. Instead, it is about Hastings attempting to use its considerable power to pressure a dissenting group to change its counter-cultural message. Under Professor Hamilton's logic, it would be "rational" for theologically orthodox Christian students to simply withdraw from Hastings entirely on the ground that the school opposes their viewpoint. Is this really the result a public law school subject to the First Amendment should desire?

Professor Hamilton asks whether CLS, in order to be "fully satisfied, " needs the law school to entirely eliminate "sexual orientation" from its non-discrimination policy and wonders whether its civil rights action is just "stage one" in some larger "campaign" at the school. First, it bears noting that Hastings has declared that it forbids any group from invoking any reason to deny any student a membership or leadership position. CLS's lawsuit challenges this severe interference with the right of every group to formulate and communicate its own message. Second, neither CLS national nor any student chapter has mounted any sort of larger "campaign." On numerous campuses, CLS chapters were able to persuade administrators to respect their religious freedom. Once that happened, they did not take any additional actions regarding non-discrimination policies. They simply went about the business of pursuing their mission. Simply put, CLS does not object to law schools' recognition of Outlaw or any other group for that matter, but Outlaw objects to CLS.

Professor Hamilton claims that CLS "misstated the Law School's policy: That policy states that no organization is permitted to put its – or its members' – discriminatory beliefs into action." I am afraid that it is Professor Hamilton who misunderstands the law school's policy – and the nature of CLS's argument. At the outset, it is worth noting that Hastings recognized a religious student group with a statement of faith requirement prior to 2003 as well as a group (La Raza) whose by-laws mandated race and/or national origin discrimination in 2004. When Hastings withheld recognition from CLS in 2004, it invoked the religion and "sexual orientation" provisions of its written non-discrimination policy. CLS correctly observed that Hastings allowed other groups to organize around secular ideas – to exclude individuals who rejected their core principles. For example, it observed that the Hastings Democratic Caucus reserved the right to deny leadership positions to individuals who opposed Democratic Party principles. CLS correctly argued that this constituted discrimination on the basis of viewpoint – something presumptively unconstitutional. In an apparent acknowledgement of the power of this claim, Hastings subsequently claimed that no group could exclude any person for any reason. Of course, this shift simply magnified the scope and depth of Hastings' violation of the right of expressive association.

Professor Hamilton asserts that CLS's argument "rests heavily on the assumption that no Republican would ever want to join a Democratic student group, and vice-versa, on the apparent assumption that those organizations must always be politically pure." This assertion reflects a serious misunderstanding of CLS's argument. As noted above, CLS argued that it was viewpoint discriminatory for Hastings to allow political groups the freedom to deny leadership to individuals who rejected the group's political views while denying religious groups the freedom to deny leadership to individuals who rejected the group's religious views. The power of that argument does not rest upon any assertion that a Republican would never want to join a Democratic club, or on the assertion that there would never be a circumstance in which a Democratic club might choose to allow a registered Republican to serve as a leader or member. The argument instead rests upon the undeniable observation that Hastings acknowledged the freedom of political groups while denying the freedom of religious groups.

Professor Hamilton concludes her column by arguing that CLS's pursuit of equal treatment contradicts what she characterizes as the traditional "Republican Party" view that religious organizations should not accept government benefits. CLS is not the Republican Party and is not a Republican group. As such, it is unconcerned with whether its effort to vindicate its constitutional rights is consistent with what Professor Hamilton characterizes as Republican Party principles. Second, I acknowledge that one could argue whether a public university should extract activities fees from its students in order to support student groups. However, even if one opposes such a system, it is not inconsistent to argue that if such a system exists, it should be administered fairly. At Hastings, it has not been administered fairly, and that is what CLS has challenged.

This article originally appeared on Findlaw.com. Reprinted by permission of FindLaw.com, a Thomson Reuters company.

Part 3: Marci A. Hamilton: More on the Supreme Court's CLS v. Martinez

In an earlier column for this site on the case of CLS v. Martinez, which is now before the Supreme Court, I argued that a public law school need not grant funding or grant official recognition to a group that excludes gay students from its voting membership and its leadership positions. Since then, Gregory Baylor, who is general counsel for the student group–the Christian Legal Society ("CLS")–has responded to my column here on FindLaw. This week, the oral argument in the case occurred, and in today's column, I will both reply to Mr. Baylor and comment on that argument.

The Procedural Problem with CLS v. Martinez: Why the Court Likely Should Not Have Granted Review

The oral argument in CLS v. Martinez this Monday made one point clear: This case is probably best suited to a "DIG" (a denial for having been improvidently granted). The parties and the Court spent the majority of their argument time debating stipulations, as opposed to debating the legal theory that was intended to be the centerpiece of the case. Notably, Justice Kennedy started the questioning by asking for clarification of the factual record and stating, "What is the case we have here?"

The problem is procedural, and it was apparent almost immediately after the argument by Professor (and former federal Judge) Michael McConnell on behalf of the CLS began: The parties agreed to a stipulation of facts that likely could impede the ability of the Court to reach the issues it has raised.

Hastings Law School, in its briefs and before the Court, stated that it was enforcing an "all-comers" policy–that is, a policy stating that the Law School's student groups, to receive recognition and funding, must accept any and all law students and permit them to serve in any position in the organization. The evidence of the policy was taken from a sworn deposition by a former Dean, and CLS conceded that this was indeed the policy, through a stipulation between the parties. (My guess, though I am not familiar with the strategic decisions made by the parties, is that CLS entered into the stipulations before the case reached the High Court in order to ensure that it obtained a grant of summary judgment, which meant that the case could go up through the system to the Supreme Court more quickly than if a trial had occurred. Entering into such a stipulation is not an unusual tactic for groups like CLS that are seeking to litigate clean test cases, but the tactic can be fraught with peril, as this week's oral argument showed.)

A persistent question at oral argument was whether this was really a facial or an as-applied challenge. (A facial challenge addresses a significant range or all of the potential applications of a statute; an as-applied challenge addresses a statute only as applied to the particular party before the Court.) During the argument, Professor McConnell tried to characterize it as an as-applied challenge, as did Mr. Baylor in his column responding to mine. However, as more than one Justice noted, the stipulations make it appear as though it is, in fact, a facial challenge, because there was no evidence that CLS was treated any differently from any other group, a necessary element of the legal arguments it is raising.

As Mr. Baylor's response to my column makes clear, a key element of CLS's argument is its representation that Hastings would not require the Republican or the Democrat student groups to accept voting members and leaders from students who were devoted to the opposing party. That point raises an interesting legal issue, but not one that is relevant to this case, because–as Justices Kennedy and Ginsburg noted–CLS also stipulated that both the Republican and Democrat clubs do, in fact, permit students from the other party without limitation. As Justice Scalia told McConnell, "if that was [your theory] you should have brought in some–some evidence of–of different treatment of other groups. … There is none of that."

CLS cannot withdraw its stipulations now, and it would appear partisan for some of the Justices who seemed inclined to favor CLS's theory, like Chief Justice Roberts and Justice Alito, to attempt to re-craft the factual stipulations in order to benefit CLS. Thus, the situation suggests that a "DIG" may well be warranted here.

The "All Comers" Policy and the Belief/Status Distinction

If the Court does go on to reach the merits of the case, it will have to address the following issue: Justice Scalia indicated that the "all-comers" policy to which the parties have stipulated is viewpoint-neutral. That is, it treats students and groups the same regardless of the views they hold: Under the policy, any student can join any student group. Justice Ginsburg pointed out, too, that the non-discrimination policy is subsumed by the all-comers policy; student groups at Hastings can't exclude any student for any reason, legally discriminatory or not, and still receive recognition or funding. And according to standard First Amendment theory, viewpoint-neutrality is a major advantage under Court doctrine on the regulation of speech and rights of association.

That analysis would strongly suggest that Hastings should win. However, Professor McConnell defended the CLS position by making a distinction between "belief" and "status." On his theory, the all-comers policy could be enforced as to status consistently with the First Amendment: Groups could not exclude students based on their race, gender, sexual orientation, disability, etc. But, he argued, student groups must be permitted to exclude students based on those students' beliefs–pointing to the absolute right to believe whatever one chooses that the Court endorsed in Cantwell v. Connecticut.

Justice Breyer, though, more persuasively, noted that the "all-comers" policy did not prescribe what student groups must believe; it mandated what they must do: Accept any student. That policy, he commented, was general, not belief-specific; it was "not just against religion." Moreover, he suggested, Hastings's policy was actually an attempt to stay out of the business of prescribing or proscribing beliefs, rather than an invasion of the right to believe.

What Does It Mean to Promote Diversity in an Education Setting? More Organizations, Versus Greater Inclusiveness

McConnell repeatedly returned to his doctrinal point, which was that "a designated public forum must be reasonable in light of the purposes of the forum." According to the stipulations, the all-comers policy was intended to increase the diversity of the exchanges of views that occurred in the law school. Thus, McConnell argued, the refusal by the law school to officially recognize and financially support CLS was "silly," "preposterous," and "absurd."

I suppose that his theory was that, by not providing financial support to CLS, Hastings was actually decreasing diversity among student groups, and thus defeating its stated purpose. But on his theory, the law school's policy was simply a policy in favor of supporting as many groups as possible–which itself would be absurd. The law school is not merely trying to generate the maximum number of student groups with its policy.

Justice Breyer pointed out, moreover, that McConnell's interpretation of "diversity" was inapposite in the educational setting. Rather than simply maximize the number of student groups, the all-comers policy was intended to increase exchanges between diverse viewpoints. Essentially, the all-comers policy is supposed to foster a wide-ranging exchange of ideas among those with different viewpoints.

Thus, even though a homosexual student might not be in agreement with CLS's viewpoint that homosexuals should "repent" for their sexual orientation, he or she might well be interested in–and even in agreement with–CLS's views in other areas, such as, to take one example, its view that individuals should wait until marriage to have sex. Or, that student might simply be interested in learning more about CLS's views. Mr. Garre, representing the law school, agreed with that position, and he pointed to the factual record, which showed that there had been a gay member of CLS for a while and that both the member and CLS agreed that the gay member's inclusion had been a useful learning experience for both. Just because a student has some reservations about the beliefs of a group simply does not mean that he or she would not want to be part of the group and even in its voting membership and leadership.

Mr. Baylor has clarified CLS's specific views for me: CLS's view is that homosexuals are welcome to join CLS chapters, but only may be part of the voting membership and leadership if they are repentant for their "sin." So they must be sincerely ashamed of their sexual orientation, and must believe that if they follow their sexual attraction to same-sex individuals, they will be judged accordingly. So, CLS says, it accepts members regardless of sexual orientation, but requires certain beliefs–and, it says, it is entitled to do so, to form its pool of those students eligible to be voting members and leaders.

On this theory, if a homosexual student seeks to join CLS simply in order to learn about another worldview, and likes the group once joining, he or she cannot be a leader of the group. This is where I believe that Hastings, in its papers, should have mounted a stronger defense to its policy in terms of its legitimate and compelling interest in creating an atmosphere of open intellectual exchange. Fortunately, Justice Breyer and Justice Ginsburg brought that view into the discourse at the oral argument, so it is now front and center (and will likely be addressed in the Court's opinion, if the Court does not DIG the case).

Supporting Religious Worship, Versus Supporting Religiously-Oriented Groups

During the oral argument, there were some odd moments, as well, when the discussion veered into the territory of religious worship, as opposed to the non-worship activities of a religiously-oriented student group. On McConnell's and CLS's theory, the law school could be required to financially support worship itself. But Justice Kennedy appropriately brought up the Establishment Clause and separation-of-church-and-state principles.

Even in the current environment–with a Court relatively hostile to the separation of church and state, and groups like CLS intent on treating the notion of separation as evidence of discrimination against religion–there can be no plausible argument that public entities are required to actually subsidize worship. Yet the seeds of those arguments were evident in the CLS position both as expressed in Mr. Baylor's response to my prior column, and in Mr. McConnell's oral argument. In the end, no case yet decided by the Court supports such a theory.

In Academia Especially, Open Interchange Among Students with Varying Viewpoints Is Crucial

The universe that CLS has painted as desirable–and constitutionally mandated–in this case is bleak, from the perspective of academic freedom and engagement. On this view, even among college and law students, who typically are trying out new ideas and approaches to life, Republicans don't want to talk to Democrats, and homosexuals would never want to talk to conservative Christians on any issue. The American university world is Balkanized and the government must financially support those groups that insist on excluding voting members and leaders based on specific, individual beliefs. Experimentation in belief (and in combinations of beliefs) is strongly discouraged and assumed to be of no interest to students; in essence, students who enter higher education with a certain set of beliefs must leave with the very same. That is a formula that is certain to keep America behind the rest of the world in innovation, not to mention intolerant.

In the end, though, I return to the central point of my original column. As Justice Sotomayor pointed out at oral argument, this is not a case about exclusion from campus, or about censorship. The only issue here is whether CLS has a constitutional right to be supported with state money, and to be officially recognized by the state through its law school. As I said before, this is a financial-entitlement mindset, not a liberty argument.

Although the Court might be tempted to DIG this case, ideally it should not. Instead, the Court would do well to go ahead and decide the facial-challenge issue based on the record–and to decide it in Hastings's favor. Such a ruling would preserve the ability of universities to foster and encourage exchanges of differing viewpoints through student organizations. As some of the amicus briefs indicated, the Hastings policy is not unique to Hastings–and why would it be? The bringing together of individuals with differing world views is precisely what higher education is all about.

Part 4: Gregory S. Baylor: Further Response to Prof. Hamilton re CLS v. Martinez

Much to my disappointment, Professor Hamilton continues to mischaracterize CLS's policies and practices regarding attendance, voting membership, and leadership. The title and first paragraph of her latest column calls CLS "a student Christian organization that excludes gay students." As I explained in my response to her initial column, such a description is misleading. All students, regardless of their religious beliefs, sexual attractions, or sexual conduct, are welcome to attend and participate in CLS meetings and events. Plainly having read CLS's briefs and the oral argument transcript, Professor Hamilton knows this. Yet she nonetheless chooses to use the unnecessarily provocative "excludes gay students" phrasing. To be sure, CLS limits officer positions and voting membership to those who share CLS's religious commitments (including its commitments regarding human sexuality), but that is a far cry from "excluding gay students."

As before, Professor Hamilton once again largely ignores the ambiguity inherent in phrases like "gay students," "sexual orientation," and "homosexual student." CLS differentiates between the mere experience of same-sex sexual attraction (what might be called "sexual orientation") and participation in same-sex sexual behavior. Like many religious bodies, when making leadership and membership determinations, CLS also considers the persistence and frequency of a person's participation in behavior it deems immoral (including extramarital sexual conduct, whether same-sex or opposite-sex), as well as a person's attitude towards his or her own behavior. In light of this, it is beyond imprecise for Professor Hamilton to assert that "excludes gay students." To her credit, Professor Hamilton does at one point acknowledge the relevance of a repentant heart in CLS's leadership and voting membership determinations, but the remainder of her column ignores the inescapable nuances of CLS's policies and practices. In addition, her language largely ignores the fact that CLS believes that all sexual activity outside marriage–not just same-sex sexual intimacy–is morally problematic.

CLS and Non-Believers: Reaching Out While Preserving the Message

CLS welcomes all students to attend and participate in its meetings and events. Like many Christian organizations, CLS is evangelistic: it desires to share the Good News of salvation through faith in Christ. Obviously, the "targets" of evangelism are those who have not heard the Gospel or who have heard it but have rejected it. Given its evangelistic bent, it would make no sense for CLS to exclude non-believers from its meetings and events.

CLS believes that "the Good News" has specific content and that certain propositions about Jesus Christ (e.g., that He is God) are true. It believes that the accurate communication of those truths has eternal consequences. To ensure the accurate communication of those truths, CLS (like most Christian organizations) draws its messengers from among those who agree with its message.

I acknowledge that there are many who disagree with CLS's beliefs. Nonetheless, I would hope that everyone would understand why most expressive organizations want their messengers to agree with their messages–particularly when the group believes, as CLS does, that the accurate communication of the message can have (eternal) life-or-death consequences. CLS believes that a false or different Gospel saves no one. Again, I acknowledge that many deny the existence of God, deny the need for "salvation" differ as to the content of "the Good News" or deny that Jesus Christ is the sole way of salvation. But I hope that readers understand why CLS cares so much about what its "messengers" believe–and why compliance with Hastings' requirements is so problematic for CLS.

Professor Hamilton views this case not through the lens of CLS, but through the lens of the hypothetical student who rejects CLS's Statement of Faith and its related ethical positions (e.g., regarding extramarital sexual activity). For example, she imagines a student who "might well be interested in–and even in agreement with–CLS's views in other areas" (i.e., areas other than sexual ethics) and a student who "might simply be interested in learning more about CLS's views." There is nothing wrong with considering the case from this perspective, but I think she goes too far in apparently believing that such a student should have the right not only to attend CLS meetings but also to vote for and serve as a CLS officer. She states that "[j]ust because a student has some reservations about the beliefs of a group simply does not mean that he or she would not want to be part of the group and even in its voting membership and leadership."

Obviously, Professor Hamilton is quite correct that there may be students who share some of CLS's views (e.g., that extramarital sex is wrong) but reject others (e.g., that Jesus rose from the dead). She is also correct that some of these students might "be interested in learning more about CLS's views."

What I honestly don't understand is why it is so critical for such students to be leaders or voting members. Why isn't attendance and participation at events and meetings enough? Is holding a leadership position really the only way (or even the best way) to "learn more about CLS's views"?

I am skeptical that very many such students–ones who reject some or all of CLS's religious beliefs–would want to serve in a leadership position or have the right to vote for leaders. [Of those that do, it is reasonable to suppose that many of them do so because they want to change CLS from within–thus underscoring the legitimacy of CLS's concern about the impact on its message of admitting non-believers to leadership and voting membership positions.] Indeed, in this litigation, Hastings was unable to identity a single student who rejected CLS's views but who wanted to serve as an officer or voting member. Even if such a student existed, does his or her simple desire to lead or vote in a group whose beliefs he or she rejects really outweigh the right of the group to maintain the integrity, consistency, and accuracy of its message? To answer yes is to embrace an absurdly extreme version of individualism.

Professor Hamilton writes ominously about how the very future of "open intellectual exchange" on campus hangs in the balance in this case. She goes so far as to declare that CLS's approach "is certain to keep America behind the rest of the world in innovation, not to mention intolerant." Professor Hamilton declares that CLS desires a universe where "Republicans don't want to talk to Democrats, and homosexuals would never want to talk to conservative Christians on any issue." Really? Does a Christian group's desire that its leaders be Christian really entail some dark hope that people who disagree never talk with one another? Recall that CLS is evangelistic: it wants to "talk to" people who reject Christianity. But it understandably doesn't want such people to be in charge of CLS, setting its agenda and communicating (and likely distorting) its message.

Professor Hamilton declares that CLS desires a world where "students who enter higher education with a certain set of beliefs leave with the very same." Again, this is false. CLS hopes that students who enter law school denying Christ end up believing in Him by the time they graduate. To be sure, CLS hopes that Christian students hold onto their faith throughout school. Is this such an illegitimate hope? Is it legitimate for the government to purposely undermine a religious group's efforts to fulfill that hope? Moreover, is it reasonable to believe that the primary problem facing America's law students is insufficient challenges to the faith of those who believe in Christ? As I see it, the greater problem is the pervasive and unrelenting naturalism, rationalism, and post-modernism of our nation's colleges and universities. I wonder whether Professor Hamilton's real concern is with those students who manage to maintain their theologically conservative Christian beliefs throughout law school.

Why Does Hastings Recognize Student Groups?

Professor Hamilton uncritically accepts Hastings' revisionist account of its student group forum.

The parameters of a speech forum turn on the government policy setting up the forum as well as its practice in administering the forum. The undisputed evidence shows that Hastings simply wanted to facilitate the activities of student groups. The forum was "limited" as to its participants (student groups) but unlimited as to the activities in which groups might engage and subject matters that the expressive groups might address. The Dean testified that Hastings had no particular objective other than the encouragement of student groups. The admission of an enormous variety of groups into the forum conclusively proves that Hastings had no particular objective in creating and administering the forum.

The written Policy on Nondiscrimination cannot be understood as a forum-defining parameter. Hastings never said that the purpose of the forum was to "fight discrimination" or "promote tolerance." Hastings simply decided that it would use its leverage over student groups desiring the benefits of recognition. Even this was largely symbolic, since invidious discrimination by student groups was not and is not a real problem at Hastings; the policy was not adopted in response to any actual problems, and no one has ever lodged a discrimination complaint against a student group.

CLS, as a student group, was plainly within the parameters of the forum. Hastings excluded CLS not because its nature put it outside the parameters of the forum, but rather because CLS allegedly violated a regulation applied to those already inside the forum. The question is whether this ejection from the forum was constitutional.

In defending its action, Hastings did what governments always do when their exclusions of otherwise eligible but unpopular speakers are challenged: they claimed that the unpopular speaker was never entitled to be in the forum in the first place. Hastings recharacterized the purpose of the speech forum–first as "fighting discrimination" and later as "encouraging tolerance." But a regulation of activity within a forum cannot always be recharacterized as embodying the purpose of the forum. Otherwise, government exclusions of unpopular speakers would always be self-justifying. It is surprising to me that Professor Hamilton and all the left-leaning organizations that filed amicus briefs supporting Hastings are so willing to allow governments to "game" the Free Speech Clause.

Should the Court D.I.G. the Case?

Echoing lawyers for Hastings, Professor Hamilton suggests that the Supreme Court perhaps should never have taken the case in the first place and ought to dismiss it (i.e., D.I.G. the case–dismiss the writ of certiorari as improvidently granted. The predicate for this argument is the existence of (1) a written Policy on Nondiscrimination; and (2) an unwritten and subsequently announced "all comers" rule. The parties disagree primarily about the meaning of a joint stipulation about the "all comers" policy. Professor Hamilton asserts that the stipulations "likely could impede the ability of the Court to reach the issues it has raised." I disagree.

Hastings adopted a Policy on Nondiscrimination in 1990. Although the language of the policy is not crystal clear, the most natural reading suggests that the policy applies only to Hastings itself, not to registered student organizations. Consistent with such an understanding, Hastings conferred Registered Student Organization (RSO) status upon student groups that took into account characteristics protected in the Policy on Nondiscrimination. For example, Hastings conferred RSO status on La Raza even though its bylaws limited membership to those "of Raza background."

When CLS sought to register at the beginning of the 2004-2005 school year, Hastings denied its request, explicitly invoking its Policy on Nondiscrimination. Hastings concluded that CLS's statement of faith requirement for officers and voting members violated the religion and "sexual orientation" provisions of that policy. Hastings recognized groups that organized around non-religious ideas (e.g., political ones), and CLS thus argued in its lawsuit that Hastings had committed viewpoint discrimination (in addition to excluding it from a speech forum without adequate justification and violating its right of expressive association). Apparently recognizing the power of that argument, Hastings declared in the middle of discovery that it required all groups to accept everyone into voting membership and leadership. CLS stipulated to the existence of that policy. The parties referred to both policies in their arguments to the lower courts.

Contrary to Professor Hamilton's suggestion, the stipulation does not impede the ability of the Court to adjudicate the case. The precise question before the Court is whether Hastings violated the Constitution by denying CLS RSO status because it draws its leaders and voting members from among those who share its religious commitments. The Court is not being asked to determine the constitutionality of one or more school policies per se, but rather to determine the constitutionality of Hastings' treatment of CLS. In assessing the constitutionality of that action, the Court's fundamental tasks are to assess the magnitude of the injury CLS suffered and of the interest Hastings allegedly advanced by excluding CLS from the speech forum.

Regarding the first inquiry–the magnitude of the injury CLS suffered–identity of the policy under which Hastings excluded CLS from the forum is utterly irrelevant. Either way, CLS was excluded from the forum, denied the benefits that go with admission thereto. Either way, Hastings does not allow CLS to limit leadership and voting membership to fellow believers.

As to the second inquiry, the interests behind the two policies are arguably different, as are the assessments of the extent to which those interests are served by denying CLS RSO status. More specifically, the interest behind the written Policy on Nondiscrimination is protecting individual students from invidious discrimination, an interest that can be compelling in the abstract–particularly when the discrimination is based on race. Applying the religion and sexual orientation provisions of that policy to CLS, however, does not appreciably advance that interest, as CLS does not engage in "invidious" discrimination. Relatedly, government rules banning religious and sexual orientation discrimination invariably exempt religious organizations, demonstrating that there is no legitimate (much less compelling) interest in stopping religious organizations from considering religious belief and immoral sexual conduct in personnel decisions.

The asserted interests behind the "all comers" policy are different. Hastings claims that the all comers policy is designed to promote toleration, cooperation, and learning. It essentially claims an interest in transforming every student group into a debating society–where the debates are not with other student groups, but among members of the group. But this interest is unreasonable in light of the purpose of the forum (encouraging and facilitating student groups, in order to foster–among other things–the expression of diverse views among groups). In addition, these interests do not justify Hastings' impairment of CLS's constitutional rights.

The bottom line is that none of these prevents the Court from reaching the merits of the case. The parties agree that the Court must decide whether Hastings violated CLS's constitutional rights. The parties agree that the Court must consider whether the interests behind Hastings' "all comers" policy justify its exclusion of CLS from the speech forum. Whether the parties agree that the Court must consider the interests behind the written Policy on Nondiscrimination is less clear, but this does not preventing the Court from adjudicating the merits.

The Relevance of Differential Treatment

Professor Hamilton seems to argue that CLS's case falls apart if it cannot prove that other groups were treated differently. This is false. As stated above, CLS was the sort of group for which the forum was created. Therefore, under Healy v. James, Hastings bears a "heavy burden" of justifying its ejection of CLS. The argument that Hastings failed to satisfy that burden does not turn on whether Hastings treated groups differently.

To be sure, the precise contours of CLS's viewpoint discrimination argument differ depending upon whether Hastings is thought to have applied an all comers or a nondiscrimination policy. But, contrary to Professor Hamilton's assertion, CLS's entire case does not turn on whether the Hastings Democratic Caucus can or cannot require its leaders to be Democrats.

In addition, CLS claimed that Hastings violated its right of expressive association. This argument does not turn on Hastings' treatment of other groups. The essence of this claim is that compliance with Hastings' rule (whether it be a written nondiscrimination policy banning religion and sexual orientation discrimination or an unwritten "all comers" policy) will undermine CLS's ability to formulate and articulate its message. This claim, by its very nature, does not depend in any way upon how Hastings dealt with other groups. [That said, consistent application of the "all comers" policy would undermine the right of every expressive association that wanted its messengers to believe in its message.]