April 21, 2010
WASHINGTON (RNS) --The nation's highest court took up a case Monday (April 19) that pits the rights of a Christian student group against the efforts of a California public law school to enforce its nondiscrimination policy.
A campus chapter of the Christian Legal Society -- which bars gays and non-Christians from leadership positions -- argues that if it follows the policy of the Hastings College of the Law in San Francisco, a student who doesn't believe the Bible could lead its Christian Bible studies.
"A public forum for speech must be open and inclusive, but participants in the forum are entitled to their own voice," argued Michael McConnell, a Stanford law professor and former appeals court judge, on behalf of the student group.
The group believes the public school's anti-discrimination policies violate its First Amendment rights to free association and free speech as well as free exercise of religion.
The justices delved into questions such as whether they were facing an anti-discrimination policy or an "all-comers policy" that allows students of a range of perspectives to be part of any group that receives money from Hastings, which is part of the University of California system.
"This all-comers policy is how it's implemented in this context,"
said Gregory Garre, a former U.S. solicitor general and Washington lawyer representing the law school, answering a battery of questions from the justices about the school's nondiscrimination stance.
The school, which won in two lower courts, has argued the Christian Legal Society is the only group out of more than 60 campus organizations seeking an exemption from its rules. When a group agrees to abide by school policy, it gains access to meeting space, e-mail communication with the student body and limited funding for some activities.
McConnell compared the case to Healy v. James, a 1972 case in which the Supreme Court ruled the anti-war group Students for a Democratic Society could not be denied recognition by a public college.
"It is also a frontal assault on freedom of association," he said.
"Freedom of association is the right to form around shared beliefs."
Garre, however, cited a Supreme Court decision a decade later, in which the court decided that Bob Jones University, a fundamentalist Christian school, could not keep its tax-exempt status if it wanted to continue a ban on interracial dating.
The justices peppered the lawyers with hypothetical situations about inclusion or exclusion of religious groups that might have exclusionary policies about gender or race.
Justice Ruth Bader Ginsburg asked whether a group would be permitted that, based on its belief of the Bible, thought "only white men can lead Bible studies."
McConnell replied Hastings would not be required to give official organizational status to such a group.
"People can believe in all kinds of things that are illegal," he said. "That doesn't mean that they can do them."
Many of the friend-of the-court briefs filed in the case centered on CLS's policy that "unrepentant participation in or advocacy of a sexually immoral lifestyle" prevented students from becoming official members or leaders of the organization.
"Hastings has an obligation under state law to prohibit discrimination on the basis of sexual orientation," Garre told the court.
McConnell argued that CLS meetings are open to all, including gays.
"What it objects to ... is being run by non-Christians," he said.
The justices grappled with the questions of both students and educators' rights.
Justice Sonia Sotomayor questioned CLS's argument that following the school policy would force it to accept leaders it did not want. "Your group is not being excluded or ostracized completely from the school," she said.
McConnell responded that the chapter has been denied the right to have on-campus meetings, and said there is no guarantee that a request to use a meeting room would be granted.
"They have gotten a complete runaround," he said of the chapter.
While McConnell viewed the Hastings policy as calling for diversity among groups, Gingsburg said it is also seeking diversity within groups.
Even if the policy may be "ill-advised," Ginsburg said CLS's hypothetical concerns about takeover and sabotage by opponents have -- according to Hastings -- so far been unfounded.
"They haven't happened," she said.
When Garre said the equal-access policy aims to reduce strife among students, Justice Antonin Scalia wondered if the policy was actually creating more conflict.
"There are going to be even more lines to have to draw," he told Garre. "Why does it solve your problem?"
Garre also defended groups that might choose members based on knowledge of the subject around which they meet. Chief Justice John Roberts called such a standard "pretty tough" and questioned how it would be applied.
"How can you have a test that allows distinctions based on merit but not beliefs?"
The justices have until June to issue their decision.