Court ruling threatens Christian college groups
The high court's 5-4 opinion against the Christian Legal Society (CLS) chapter at the University of California Hastings College of the Law came on the final day of its term. Associate Justice Anthony Kennedy provided the deciding vote, as he often does, siding with the liberal wing of the court, while the justices recognized as conservatives, or strict constructionists, dissented.
The court majority decided that the school, which is located in San Francisco, can require all student organizations to accept into their membership students who disagree with them in order for such groups to use the facilities and communications networks of the school. The "all-comers" policy means a club for Democrats must accept Republicans and an evangelical Christian organization must receive atheists or open homosexuals as members.
CLS chapters welcome all students to their meetings but allow only those who affirm the organization's statement of faith to be officers or voting members. In its doctrinal confession, CLS calls for abstinence from "unrepentant participation in or advocacy of a sexually immoral lifestyle."
Associate Justice Ruth Bader Ginsburg said in the court's opinion the "all-comers" policy does not violate CLS' First Amendment rights to free speech, association and religious exercise.
"Compliance with Hastings' all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum," Ginsburg wrote for the majority. The school "did not transgress constitutional limitations" in requiring CLS "to choose between welcoming all students and forgoing the benefits of official recognition."
Ginsburg said CLS sought preferential treatment instead of equality with other organizations.
"This decision is one of the worst decisions handed down by the Supreme Court in recent years," said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. "It strains credulity that five justices of the United States Supreme Court are willing to say that the Christian Legal Society cannot limit its membership to heterosexuals, given the clear and plain teaching of Scripture concerning homosexuality. This is clearly a case of political correctness trumping First Amendment, religious liberty guarantees. It is a sad day for American jurisprudence and an even sadder day for people of faith."
The court's opinion only applied to the "all-comers" policy, not to the nondiscrimination policy CLS asked the justices to review. The school had ruled the CLS constitution violated its nondiscrimination policy, specifically its religious and sexual orientation sections.
The high court sent the case back to the Ninth Circuit Court of Appeals for further consideration on the basis of the justices' opinion, and Ginsburg said that court could weigh CLS' argument that Hastings enforces its "all-comers" policy in a selective, not an across-the-board, manner.
Advocates for CLS expressed disappointment in the decision but voiced hope their side might prevail when the nondiscrimination policy and the question of selective enforcement by the school are adjudicated.
"All college students, including religious students, should have the right to form groups around shared beliefs without being banished from campus," CLS senior counsel Kim Colby said in a written release. The decision "will have limited impact. We are not aware of any other public university that has the exact same policy as Hastings."
David French, senior counsel for Alliance Defense Fund, wrote, "There's no doubt that the decision is disappointing to those who cherish free speech and free association, but it is far more limited than it could have been."
Michael McConnell, the Stanford Law School professor who argued on CLS' behalf before the high court, said in a written release, "We believe we will ultimately prevail in this case. The record will show that Hastings law school applied its policy in a discriminatory way -- excluding CLS from campus but not other groups who limit leadership and voting membership in a similar way."
InterVarsity Christian Fellowship, an interdenominational ministry that has chapters at 560 American colleges and universities, will be affected by the decision, said Alec Hill, its president. InterVarsity chapters do not have members, but they do require leaders to agree with the ministry's doctrinal statement.
The ruling "will likely change the way we operate on some campuses," Hill said in a written statement. "However, whether our chapters are recognized as official student groups or not, we are confident that God will continue to be at work. ... [W]e will be responsible campus citizens and pursue Truth prayerfully. We will do so with civility, humility and biblical integrity."
Critics of the decision said it wandered from a series of Supreme Court rulings, including those that found government must give equal access to religious groups when it provides a forum for non-religious organizations.
Associate Justice Samuel Alito said in his dissenting opinion he "can only hope that this decision will turn out to be an aberration."
"Brushing aside inconvenient precedent, the [majority] arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups -- groups to which, as Hastings candidly puts it, these institutions 'do not wish to ... lend their name[s],'" Alito wrote.
"I do not think it is an exaggeration to say that today's decision is a serious setback for freedom of expression in this country," he said.
A Southern Baptist lawyer who helped represent college students in a 1981 equal access case they won at the high court said the CLS ruling "severely weakens the foundation principles" of equal access.
The court's new opinion "is a huge step backward for religious freedom on public school campuses," said Michael Whitehead, a lawyer in Kansas City, Mo., and a member of a Southern Baptist church, in a written release. "It should sound again the alarm that the Culture War is raging, and we are losing important ground we won in a prior generation."
In the case in which Whitehead participated, Widmar v. Vincent, the Supreme Court ruled that a public university must permit religious organizations to use school facilities when it allows other student groups to use them.
Leo Martinez, acting chancellor of Hastings College of the Law, applauded the opinion, saying the court affirmed a policy "rooted in equity and fairness."
"The College's intent has always been to ensure the leadership, educational and social opportunities afforded by officially recognized student organizations are available to all students attending public institutions," Martinez said in a written release.
Barry Lynn, executive director of Americans United for Separation of Church and State, called the ruling "a huge step forward for fundamental fairness and equal treatment."
Joining Ginsburg and Kennedy in the majority opinion were Associate Justices John Paul Stevens, Stephen Breyer and Sonia Sotomayor. It was Stevens' final day to sit on the court while it was in session before retiring.
Alito's dissent was joined by Chief Justice John Roberts and Associate Justices Antonin Scalia and Clarence Thomas.
The opinion in CLS v. Martinez may be accessed online at http://www.supremecourt.gov/opinions/09pdf/08-1371.pdf.
The court's next term will begin in October.
Tom Strode is the Washington bureau chief for Baptist Press.