High court’s Christian Legal Society ruling already making waves

Thursday, July 1, 2010

WASHINGTON — The Supreme Court’s June 28 First Amendment ruling in Christian Legal Society v. Martinez is already having an impact beyond the scope of the decision.

Opponents of the California Proposition 8 ballot initiative banning same-sex marriage invoked the decision in a letter to the judge conducting the trial on the proposition earlier this week.

In the decision, the Supreme Court upheld a state law school's anti-discrimination policy that requires recognized student groups to admit “all comers” as members, over the objection of a religious group that did not want to allow nonadherents, including homosexuals, to join.

The Christian Legal Society claimed, among other things, that it was not discriminating against homosexuals as such, but choosing not to accept members who refuse to acknowledge that homosexual conduct is wrong.

But Justice Ruth Bader Ginsburg, writing for the 5-4 majority, rejected that argument, asserting: “Our decisions have declined to distinguish between status and conduct in this context.”

Theodore Boutrous Jr., one of the lawyers for groups challenging the California measure, told trial judge Vaughn Walker that this language demonstrated that “the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class.” As a class, gays would more easily qualify for protection under anti-discrimination laws.

In Christian Legal Society v. Martinez, the Supreme Court majority said that the policy at the University of California Hastings College of the Law was a “reasonable and viewpoint-neutral” condition placed on groups seeking campus recognition. Recognized student groups are entitled to certain funding and access to campus facilities.

The religious group is free to exclude nonadherents, Ginsburg noted, if it forgoes recognized status. “Hastings … is dangling the carrot of subsidy, not wielding the stick of prohibition,” Ginsburg wrote. She dismissed concerns voiced by the society that the policy would encourage “hostile takeovers” of groups like theirs by nonadherents whose aim is sabotage. “This supposition strikes us as more hypothetical than real,” she wrote. “Students tend to self-sort.”

Ginsburg said the university policy also served the valid purpose of encouraging tolerance and diversity, and of refusing to subsidize discrimination.

In dissent, Justice Samuel Alito Jr. said the Court's decision was “deeply disappointing” and would give state universities “a handy weapon for suppressing the speech of unpopular groups.” He also argued that there was evidence in the record that the university enforced the policy selectively to target the Christian Legal Society. Chief Justice John Roberts Jr. and Justices Antonin Scalia and Clarence Thomas joined Alito's dissent.

The Christian group said it would now go back to lower courts to prove that in fact the university did single it out for exclusion from recognized status.

“The Supreme Court has now enshrined political correctness as a central tenet in American society and in American university life,” said John Whitehead, president of the Rutherford Institute, which filed a brief supporting the society. The ruling, he said, “will force well-meaning groups to abandon the tenets of their faith in order to be granted the same privileges and freedoms afforded to other campus groups and organizations. If not, they will face discrimination.”

The American Civil Liberties Union, which supported the law school, applauded the decision, which it said “sends a message that public universities need not lend their name and support to groups that discriminate.” Said legal director Steven Shapiro, “A public university has the right to enact policies that refuse to officially recognize and fund groups that deliberately exclude other members of the student body.”

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