Court to resolve split over rules for campus clubs

Tuesday, December 8, 2009

WASHINGTON — Once again, the Supreme Court will navigate the difficult waters of student religious speech on public university campuses.

Agreeing to hear the first church-state case of the current term, the justices yesterday granted review in Christian Legal Society v. Martinez, a clash between the non-discrimination policies of the University of California’s Hastings College of the Law and the wishes of a Christian group to confine its membership to those who share its beliefs.

“All student groups have the right to associate with people of like mind and interest,” says Kim Colby, senior counsel with the Christian Legal Society Center for Law and Religious Freedom.

The society’s chapter at Hastings allows anyone to attend meetings, but voting members and officers must sign a statement of faith that vows devotion to Jesus Christ and disavows a “sexually immoral lifestyle,” defined in part as sexual activity outside of a marriage between a man and a woman.

The law school denied official recognition to the Christian Legal Society because the group’s requirements violate the school’s policy against discrimination on the basis of religion, sexual orientation and other factors. Student groups that are officially recognized are eligible for meeting space, means of communicating with students, and student funds for their activities.

The university asserts its policy is a valid “viewpoint neutral” policy. That position was endorsed by the 9th U.S. Circuit Court of Appeals in an unsigned, two-sentence ruling in March.

The society, in seeking Supreme Court review, asserted that the 9th Circuit decision is in clear conflict with the 2006 7th Circuit decision involving the same organization, Christian Legal Society v. Walker. In that case, which originated at the Southern Illinois University School of Law, the 7th Circuit found that the Christian group’s message would be weakened if it were forced to accept members who disagree with it, thereby violating its First Amendment rights.

Barry Lynn, executive director of Americans United for the Separation of Church and State, said yesterday, “Public schools have every right — indeed, an obligation — to refuse to advance religious discrimination. Groups that wish to engage in discrimination should not expect public subsidies.”

The California case, which will be argued in the spring, covers familiar terrain for the high court, which has often been called on to deal with religious-speech cases on university campuses. In the 1995 case Rosenberger v. Rector and Visitors of University of Virginia, the Court ruled that a public university that funds student activities in general may not exclude a group from funding because it espouses a religious message. In Widmar v. Vincent, a 1981 case, the Court struck down a University of Missouri policy barring use of its facilities for religious purposes that had been invoked against a religious student group.

In its petition to the Court, the Christian Legal Society also cited two other landmark rulings: Boy Scouts of America v. Dale (2000) and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995), in which the high court upheld groups’ right of expressive association against government non-discrimination policies.

The law school claims that the precedents don’t address the issue in this case: whether a university “may condition access to a limited public forum or to government financial subsidies on compliance with a viewpoint-neutral nondiscrimination policy.”

University lawyers also point out that the Christian group is free to meet and organize without official recognition.

The society responds that the university’s offer is “meaningless” and does not change the fact that “all student groups at Hastings have lost the right to choose their leaders and members. The Hastings Democratic Caucus cannot expel a member who tore down ‘Obama 2008’ signs while shouting ‘Vote for McCain.’”

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