Supreme Court Decision in Christian Legal Society v. Martinez

Is it discrimination to not allow discrimination backed by religion?  This is an oversimplification of the question asked in Christian Law Society v. Martinez (PDF), but the Supreme Court ruled on it today in the negative.

Here’s a quick and dirty review of the facts:

1) Hastings is a public law school.

2) Hastings implemented a generally applicable and “viewpoint-neutral” policy (legal talk for it applied to everyone and didn’t target any one group for enforcement) that said no student group with official status was allowed to discriminate on the basis of race, sexual orientation, etc.

3) The Christian Legal Society (CLS) asked to be exempted from this policy because they wished to make every member affirm the following:

Trusting in Jesus Christ as my Savior, I believe in:

• One God, eternally existent in three persons, Father, Son and Holy Spirit.
• God the Father Almighty, Maker of heaven and earth.
• The Deity of our Lord, Jesus Christ, God’s only Son conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return.
• The presence and power of the Holy Spirit in the work of regeneration.
• The Bible as the inspired Word of God.”

CLS also interpreted this affirmation as requiring them to exclude homosexuals and non-Christians from their group.

4) Hastings took away CLS’s official group status.

5) CLS sued saying Hastings’ nondiscrimination policy and subsequent derecognition of CLS violated their free speech and free association rights.

It was a close 5-4 decision but we now know that “(c)ompliance with Hastings’ all-comers policy… is a reasonable, viewpoint-neutral condition on access to the student-organization forum. In requiring CLS — in common with all other student organizations — to choose between welcoming all students and forgoing the benefits of official recognition… Hastings did not transgress constitutional limitations” (emphasis added).

This is very good news for Secular Americans because it upholds the notion that a group can’t use religion to hide their hate and wiggle out of laws and rules that apply to everybody else.

Additionally, because Hastings is a public institution, it protects atheist and homosexual students from funding their own discrimination with tax money and student activity fees they pay the school.

You can read the full (85 page) opinion here.

Justice Ginsburg wrote the majority opinion (and was joined by Justices Sotomayor and Breyer). Justices Stevens and Kennedy filed separate concurring opinions.

Justice Alito wrote the dissenting opinion and was joined by Justices Roberts, Scalia and Thomas.

According to Howard Friedman:

The dissent argued that the Court should focus on the non-discrimination policy as written, since that was the policy originally invoked to deny CLS registration. That policy, the dissent argues, amounts to viewpoint discrimination since only religious groups are required to admit students who do not share their views. Political groups or groups formed around other causes can limit membership. The dissent goes on to argue that even limiting the analysis to the broader all-comers rule, the policy is unconstitutional. It was adopted as a pretext to suppress a particular viewpoint and it is not reasonable in light of the purposes of the student organization policy which is promoting diversity among student organizations.


  • Liz

    I’m no law-talking-gal, but it seems like this could have some implications for the Boy Scouts. Yeah? No?

  • http://friendlyatheist.com/about-the-contributors/ Brittany

    They reconciled this case with Boy Scouts of America v. Dale. They said that it was different because the Boy Scouts were being FORCED to include gays, not simply decide between inclusion and official group status.

  • http://findingmyfeminism.blogspot.com/ Not Guilty

    That dissenting judgment is deplorable. How many of those judges also granted personhood to corporations?

  • Kim

    Yeah, this really speaks to the larger cultural dilemma that goes like this:

    “You have the freedom to hold whatever religious beliefs you like and to practice your religion, up until the point that practicing your religion infringes upon the rights and freedoms of others.”

    “But in practice, my religion calls upon me to oppress/ subjugate/ abuse/ infringe upon (fill in the blank). That is essential to my religion. Denying me this is denying MY religious freedom.”

    And thus we whirl in an endless vicious cycle on the Crazy-Go-Round.

  • Hitch

    Great news.

    Differentiating group funding based on intolerant bigotry is constitutional as long as it is blind to the purpose of the group.

    Well rules (and scarily close).

  • JustSayin’

    Kim summed up the core issue nicely.

  • Hitch

    There is no freedom of religion question here at all. And because practice is in no way limit there is no establishment question at all either.

    The dissenters basically construct a discrimination case that has no constitutional foundation. Differential funding is not viewpoint discrimination. We do differential funding all the time, grants, scholarships etc etc. Yes the views linked to grant applications are valued differently depending on the money awarded.

  • microbiologychick

    This ruling also means that atheist groups would have to allow Christians to be members and officers.

  • Nicole

    And I wouldn’t see an issue with a Christian participating in a rational thought group. Presumably if they weren’t behaving in a way contradictory to that group’s rules–which I imagine would have a note that intentionally causing problems, attempting to derail discussion with proselytzing, etc. is forbidden–they would benefit from the group and so would the group benefit from their presence.

  • littlejohn

    This means four members of the Supreme Court agreed that Christian discrimination doesn’t count.
    I don’t even have to read the story to bet my house that the four were Scalia, Thomas, Alito and Roberts.
    I hope at least one of them retires before the end of Obama’s term(s). They clearly don’t weigh the arguments, they just ask “what would a Republican do?”

  • Reginald Selkirk

    That policy, the dissent argues, amounts to viewpoint discrimination…

    Could someone point out where the constitution guarantees freedom against “viewpoint discrimination”?

  • JustSayin’

    littlejohn said:

    They clearly don’t weigh the arguments, they just ask “what would a Republican do?”

    It certainly does seem that way, doesn’t it?

  • Andrew Morgan

    littlejohn said:

    I don’t even have to read the story to bet my house that the four were Scalia, Thomas, Alito and Roberts.

    and then said

    They clearly don’t weigh the arguments, they just ask “what would a Republican do?”

    Ah, I get it now. *You* don’t have to actually read what is involved and weigh the arguments, but that doesn’t stop you from forming an opinion about the motives of the dissenting justices. How nice omnipotence must be.

  • Andrew Morgan

    Reginald said:

    Could someone point out where the constitution guarantees freedom against “viewpoint discrimination”?

    Right, like anything at stake here is actually, literally, written in the Constitution.

    With all due respect to the lawyers, the law is a dense hedge-maze of crap, that, as far as I have been able to tell based on every interaction I have ever had with lawyers or law school students, is apparently only accessible to those who have managed to join the expensive club.

    Every time the Supreme Court releases an opinion, it just makes me sad, even if I agree with it. You think only “Republican” justices decide cases predictably? Please, spare me.

  • phira

    The argument that this ruling would mean that atheist groups have to accept Christian members and allow them to be officers isn’t the greatest one. That is, the assumption is that hardcore religious folk are interested in being members of atheist/secular groups.

    The Christian Legal Society, as the name suggests, is meant for Christian law students. And, let’s face it, there are plenty of Christian LGBT folk. If any of them would like to join the group, there’s a problem.

    I find it insulting that a group of law students would have more difficulty interpreting the law here than I do.

  • Liz

    Brittany said:

    “They reconciled this case with Boy Scouts of America v. Dale. They said that it was different because the Boy Scouts were being FORCED to include gays, not simply decide between inclusion and official group status.”

    I’ll admit to not having read the opinion since I’m at work and am wasting time here instead, so maybe this is addressed. I’m not referring to BSA being forced to include gays or atheists, but to them receiving government funds while discriminating.

  • microbiologychick

    phira:

    I know many Christians who would be interested in destroying atheist groups from the inside.

    The “Christian” Legal society isn’t meant for all Christians, it probably should call itself a Baptist legal society or Conservative Christian legal society because of its rules.

  • ABH

    I assume that in most schools that the number of students in christian groups is greater than the number of students in atheists groups. What’s to keep the christian students from joining the atheist groups and voting their way into taking power and converting the group into another christian group. The atheists could leave and create a different group; but a tactic like this would keep them from ever getting funding (as the christians would be in charge of the official groups with funding.)

    Note: This wouldn’t be disruptive if they followed whatever voting procedures were outlined in the group charter.

  • Watchemoket

    One clarification that I think is somewhat important:
    There already was a Christian Legal Society at the school, officially recognized and sanctioned by the school. It was only when that local group decided to affiliate with the National CLS that the problem arose. The membership restrictions were a part of the National CLS charter, which the local group had to adopt to become an affiliate. THAT’s when the trouble started and the school effectively revoked their certification.

  • Watchemoket

    Not Guilty Said:

    That dissenting judgment is deplorable. How many of those judges also granted personhood to corporations?

    LOL – All of the dissenters, of course.

  • triscele

    Little John said
    I don’t even have to read the story to bet my house that the four were Scalia, Thomas, Alito and Roberts.

    to which Andrew Morgan responded.

    Ah, I get it now. *You* don’t have to actually read what is involved and weigh the arguments, but that doesn’t stop you from forming an opinion about the motives of the dissenting justices. How nice omnipotence must be.

    Does it matter at all to you that his opinion was accurate? Sometimes it isn’t prejudice, it’s judgment. I believe you meant omniscience also. Omnipotence would mean that Scalia, Alito, Thomas and Roberts would not be on the court. :-)

  • Steve

    This doesn’t force anyone to admit people against their will. What it means is that such groups can’t discriminate and still expect public funding and acknowledgment (student groups there are paid by the university)

  • Troglodyke

    Omnipotence would mean that Scalia, Alito, Thomas and Roberts would not be on the court.

    Good one.

    And you are right.

  • JD

    That policy, the dissent argues, amounts to viewpoint discrimination since only religious groups are required to admit students who do not share their views. Political groups or groups formed around other causes can limit membership.

    Does it? I really don’t see how it has to be. In my opinion, a school-sponsored political club of any stripe probably shouldn’t be allowed to prevent those of other viewpoints from participating in the club. If you want to make your own rules that contradict the school’s, then do it without the school’s facilities. The local community college is like that, there is a Latino or Hispanic group that allows all comers, they don’t prevent people from other ethnic groups from joining, they wouldn’t even be allowed to if they wanted to.

  • Andrew Morgan

    Yeah, I meant omniscience.

    The point isn’t about whether or not his guess about the justices was right; it was that after admitting he hadn’t read any of what was involved, he was equipped to declare their reasoning as being faulty.

    MY point is that I think the Supreme Court is a crock regardless of what it rules. Hell, my initial reaction to McDonald, before I can get a chance to read it fully, is a favorable one. But I still think the fact that we decide national policy on the basis of 5-4 decisions made by members of an elite club, after being selected for life by the members of an elite club, after a bitter and obviously partisan “confirmation process”, is total shit.

  • Andrew Morgan

    As for the case at hand, student groups should be able to discriminate on whatever basis they want to, unless they want school funding/support/anything. In that case, you have to play by the same rules everybody else does and not be a bigoted piece of trash homophobe.

    But I don’t need pages upon pages of “legal reasoning” to tell me so.

  • flatlander100

    Sorry, guys, but this member of AU and FFRF thinks Alito’s dissent was persuasive. The decision should have gone the other way because Hastings dredged up its “all comers” defense only long after the case had been filed and its initial stages completed.

    Hastings discriminated against the Christian group by applying to it standards it had never applied to other student groups at the time they were applied to the Christian group. Never. Only retroactively did Hastings suddenly claim it had an “all comers” policy which, for example, it now claims, would permit Republican students to join the campus Democratic club, and serve as officers in it.

    When the Christian group was denied certification as a campus club, the policy Hastings now says it has — “all students welcome to all groups without exception” — was not in force. No other student group had ever been denied certification as a recognized campus group before, and that included the campus La Raza group with required members to be Hispanic, etc. [Now, after the fact, Hastings says it required that group to change its charter. After the fact.]

    The Christian group was discriminated against at the time. Retroactive policy changes by Hastings because it got caught out discriminating does not change that.

    The Christian group’s first amendment rights were violated by Hastings and the court should have so found. We can’t protect our own free speech rights on public campuses without insisting that theirs be protected as well.

  • Hitch

    Stevens’ actually wrote a response to Alito’s dissent:

    “Although the First Amendment may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them.”

    the simple idea that to not fund a group is not the same as silencing a group. The first amendment has nothing to say about which opinions need active support and which don’t. It just says that freedom of expression cannot be stifled. The student group is free to meet without institutional support.

    and

    “In this case, petitioner excludes students who will not sign its Statement of Faith or who engage in “unrepentant homosexual conduct,” App. 226. The expressive association argument it presses, however, is hardly limited to these facts. Other groups may exclude or mistreat Jews,blacks, and women—or those who do not share their contempt for Jews, blacks, and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.”

    Darn right. Stevens basically takes the “this is discrimination against religions” argument apart.

    Alito’s argument is embarrassing. He basically says that evidence entered later in the proceedings has no standing. That despite they were able to show that the policy was in place for 20 years. He claims that the majority opinion does not consider these separately when in fact if you read through it, it does.

    BTW it’s quite clear from the judgment that the policy was NOT introduced after the fact, as flatlander100 claims, but was in place but was just introduced to the court proceedings late. Yet another mischaracterization. Also Howard Friedman mischaracterizes the judgment in my opinion. It’s quite clear that both the nondiscrimination and the all-comers policy were considered and, opposed to what Alito claims, have been checked for their constitutionality. See Stevens response to Alito.

  • microbiologychick

    @Hitch,

    The thing is “institutional support” may not mean money. It may mean the ability to post fliers, reserve rooms, and have a booth at activities fairs. My atheist group gets no money from the university, but we have to be a recognized student group to have any presence on campus whatsoever.

  • http://www.surprisesaplenty.wordpress.com surprisesaplenty

    I don’t feel this decision is about viewpoints, it is about the use of university and tuition funds. I don’t like the decision. Yes, the Christians will be unable to discriminate in who joins their group, but so will atheist groups, political groups, Pro-like and -choice groups…
    Any group that takes a controversial stand will be infiltrated from within and made useless.
    —-
    I think I posted here previously as ‘kwandongbrian’ – that pseudonym was based on my workplace at the time. As I no longer work there, I have new name. Just wanted to avoid claims of sock-puppetry.

  • muggle

    I think it’s good because they have to conform to the school’s rules just like every other group in school. Yes, including any freethought group. It’s kind of like religious groups taking Federal money. If you don’t like the strings attached, don’t take the haqndout whether it’s cash or a place to meet. Find your own or live by the conditions put on other’s generosity.

  • Braden

    Thank you to Richard for posting the dissenting opinion and to Hitch for posting the response.

  • littlejohn

    I didn’t say I “knew,” Morgan, I said I was willing to bet.
    Turns out, I was right.
    I wish I had made some sort of bet that you would not concede I was right.
    If you don’t mind my saying, you’re coming across as a bit of a troll. Just my opinion.

  • flatlander100

    Hitch:
    I know Stevens replied to Alito in his concurring opinion. I read it too. I did not find it persuasive. I did find Alito’s opinion persuasive. The fact seems to me largely indisputable that, when the Christian group was denied RSG status, a standard was being applied to it that had not been applied to any other group that had previously been granted that status. The rules were not being applied equally to all at that point. And so the Christian group was in fact being discriminated against because standards were applied to it that had not been applied to any others before. Those standards were only applied to recognized groups, like Campus La Raza after the Christian group had been denied. Too late to avoid a credible claim of discrimination.

  • Baudelaire

    I agree with the dissenters in that every recognized group should not be allowed to limit members or participation. If it’s good enough for the religious groups, it’s good enough for every group. Not good to say one group can exclude while another can’t. (i.e. groups like La Raza which are racist etc.)

  • Erp

    I should point out that student groups affiliated with the Secular Student Alliance (SSA) are required to not discriminate on creedal grounds.

    Non-discriminatory – We cannot affiliate with groups that bar members from joining on the basis of their creed or worldview. We also cannot affiliate with groups that discriminate on the basis of race, color, sexual orientation, national origin, sex, age, handicap, or veteran status.

  • Hitch

    Clearly we find opposite sides of the argument persuasive. Alito admits hearsay to make his case (“relating anecdotally”) and fails to note that bylaw reviews can suffer from clerical oversights. He constructs the articifial case of non-enforcement when there is no evidence that enforcement was ever denied to students. Etc etc. Basically he constructs this story line that the all-commers policy supposedly wasn’t in place, but then he comes around and charges the majority with not having rules on the nondiscrimination policy, when they clearly have. Which one is it? For the majority it doesn’t matter. They covered both cases.

    I don’t buy that but anyway, you are entitled to be more persuaded by Alito.

  • http://allusiveatheist.blogspot.com T Ray

    How was this s 4-5 split? That is EMBARRASSING! The greatest (arguably) legal minds in our country don’t unanimously agree that publicly funded schools can’t grant official recognition to groups that can’t/won’t accept the restrictions that the publicly funded school legally must also follow?

  • Andrew Morgan

    Littlejohn, are you trying to miss the point, or is it coming naturally? Whatever.

  • http://eternalbookshelf.wordpress.com Sharmin

    @Kim (comment #4):

    Yeah, this really speaks to the larger cultural dilemma that goes like this:

    “You have the freedom to hold whatever religious beliefs you like and to practice your religion, up until the point that practicing your religion infringes upon the rights and freedoms of others.”

    “But in practice, my religion calls upon me to oppress/ subjugate/ abuse/ infringe upon (fill in the blank). That is essential to my religion. Denying me this is denying MY religious freedom.”

    And thus we whirl in an endless vicious cycle on the Crazy-Go-Round.

    I agree. The argument does seem to go on forever. The same people who argue that freedom and equality should be extended to them then use that freedom to say that they want to be free to discriminate against whoever they want. And so it goes on.

  • http://www.redheadedskeptic.com Laura

    Atheist groups on campus have to follow the same rules and allow Christians to join if they desire in order to be affiliated with the campus, so I don’t see why the reverse isn’t true. Nobody said they couldn’t have the organization on campus, only that it couldn’t be affiliated with the school and receive funding if they don’t. I don’t see why they thought they should be excluded from the rule. They aren’t thinking big picture there, because sooner or later, an organization would come to campus that they don’t agree with, and they would throw a fit that a portion of their money went to fund such an organization. Slightly different, but how many Christians are up in arms over part of THEIR tax dollars going to fund abortions?

  • Hitch

    The majority got this perfectly right. The christian group was looking for special/exceptional treatment, not for equal treatment. The school is in fact required to enforce anti-discrimination legislation so it’s not like the school has free reign here.

    It seems to me the reason why this case was pushed to the SCOTUS may be exactly this. Christian lawyer circles trying to find a precedent that the establishment/free exercise clauses can be used as a defense for protecting some religious expression from some legislation that they see as limiting their religious expression like anti-discrimination legislation.

    Now of course anti-discrimination laws on the books don’t outlaw discriminatory groups. They usually go after structural/funded support of discrimination or outlaw hiring using discrimination.

    So you can discriminate or get funding. Is rather clear. Both applicable clauses of the first amendment are fully met. This clearly is neither establishment nor anti-free exercise.

    But the scary thing is that we are one SCOTUS seat flip away from a negative outcome.

    How would we like a precedent that the combination of establishment and free expression should be read as allowing exception of religious expression under the law. That will seriously undermine the current largely egalitarian view of religious versus non-religious expression under the first amendment.


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