Supreme Court takes on “all comers”

The Supreme Court handed down a decision on Monday that dealt with the gay rights and religious freedom by looking at how non-discrimination clauses can come into conflict with the freedom of association. We’ve looked at Christian Legal Society v. Martinez before here, here, here and here.

Hastings College of Law in California recognizes a wide variety of student groups — things like La Raza and College Republicans and the like. But there’s one group that they won’t recognize. They refused to sanction a chapter of the Christian Legal Society because it requires its members to uphold traditional Christian doctrine about sex (i.e. only in marriage, no homosexuality, etc.). At the time they denied the group registration, the school said it was because the chapter discriminated against people on the basis of religion and sexual orientation, both mentioned in the non-discrimination policy.

CLS said that this violated their freedom of religion — while the school said that they couldn’t select officers who were dedicated to a particular set of religious beliefs, the policy allowed other groups to select based on political, social or cultural beliefs. (The court proceedings show numerous examples of student groups being registered even though they required support of particular beliefs.) Indeed, back when the case began, Hastings admitted that its nondiscrimination policy “permits political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.”

But at some point after that admission, administrators put a new spin on it. They said that their anti-discrimination policy means that groups must accept everyone who wants to join. They called this their “all comers” policy. When they announced this interpretation in 2005 or so, they asked student groups who had already been cleared but were in violation of this policy to revise their policies to come in line with the requirement. The revision in how they enforced the policy is also worth mentioning because of another reason. While the non-discrimination policy’s wording says that it applies to everything at the school, the “all comers” interpretation is used only for student groups. The school doesn’t discriminate in its hiring but neither does it hire everyone who applies. The school doesn’t accept all students who apply, etc., etc.

All that to say that the decision deals with the “all comers” interpretation rather than the anti-discrimination policy in general. Whether such anti-discrimination policies violate religious freedom wasn’t really discussed.

And yet many media reports obscured this important — if difficult to convey — distinction. Here’s how Southern California Public Radio put it:

The court also was split between liberals and conservatives in its 5-4 ruling against a Christian student group that sought official recognition from the University of California’s Hastings College of the Law.

The Christian Legal Society requires that voting members sign a statement of faith and regards “unrepentant participation in or advocacy of a sexually immoral lifestyle” as being inconsistent with that faith.

But Hastings said no recognized campus groups may exclude people due to religious belief or sexual orientation.

Again, that was what Hastings said back when this case started but their argument changed over time. And regardless, the court didn’t rule on the constitutionality of anti-discrimination policies based on specified grounds, such as race, religion, gender and sexual orientation.

In his dissent, Justice Alito explains it this way:

Only religious groups were required to admit students who did not share their views. An environmentalist group was not required to admit students who rejected global warming. An animal rights group was not obligated to accept students who supported the use of animals to test cosmetics. But CLS was required to admit avowed atheists. This was patent viewpoint discrimination. … It is no wonder that the Court makes no attempt to defend the constitutionality of the Nondiscrimination Policy.

I know it’s a tricky distinction, but it’s an important one. A quick hat tip to Washington Post staff writer Robert Barnes for getting this crucial distinction right in his lede.

Most media coverage was totally fine, actually. Reporters had to respond to a huge number of cases, some of them involving Or what about this tidbit from the San Francisco Chronicle:

The school was backed by educational and civil rights groups, while religious and conservative organizations filed arguments in support of the Christian Legal Society.

Except that this isn’t how the groups broke down. It is true that conservative organizations generally sided with the Christian Legal Society. But there were religious groups who sided with the school and civil rights groups that sided with the organization. It would be better to use modifiers to describe what type of educational, religious and civil rights groups were on one side or the other. The American Jewish Committee sided with the school, while a coalition of Muslim, Jewish, and Sikh groups sided with the law group.

And civil libertarians were not all on one side either. In fact, most of what I read today came from civil libertarians who were worried about the decision. Even groups that generally don’t support public funding of groups said that if it exists, the government shouldn’t be in the business of decided which groups have appropriate speech and which groups don’t. Richard Epstein summarizes some of the main civil libertarian concerns in his Forbes essay “So Much For Religious Liberty.”

Here’s how prominent civil libertarian Wendy Kaminer at The Atlantic begins her essay against the ruling:

“The era of loyalty oaths is behind us,” Justice Kennedy perversely declares, concurring in a 5 – 4 decision allowing a public university to deny official recognition to a religious group that excludes from membership students who will not disavow homosexuality or pre-marital sex. What’s perverse about Kennedy’s statement? The Court’s ruling in Christian Legal Society v Hastings is more like an endorsement than a rejection of official loyalty oaths. It upholds state power to condition the benefits extended to private associations on their willingness to conform to an official ideology – in this case a particular view of sexual morality.

Via the award-winning Godblog, I found this link to a Huffington Post piece by Student Press Law Center attorney Adam Goldstein. While he said the case was a difficult one to decide, the rationale the majority found for the school “could end up doing more violence to student expression rights than any decision in the last 22 years.”

There are so many interesting media angles that I hope we’ll see explored. Since the “all comers” interpretation found favor with the court, will we see a rush of policy changes to ensure that traditional Christian groups will be shunned?

There was also a lot of discussion about how this ruling could lead to chaos. For instance, will you see a bunch of traditional Christians join the campus gay rights groups, take it over and wreak havoc? It could, but in all likelihood a group under siege would be able to reach out to the larger campus community. Unless, that is, they are a disenfranchised minority with unpopular or politically incorrect views.

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  • Tantalus Prime

    The legal question isn’t “can a student group reject membership in what would be considered a discriminatory manner?”, but, “can a student group reject membership in what would be considered a discriminatory manner and still expect to retain official recognition by their academic institution?”

    I do have misgivings about the potential impact of this court decision, but there is an easy solution. No one is forcing the CLS to be officially recognized. It seems they want the privilege of using academic facilities for meetings, having access to financial support from student fees, etc., without the institutional over site that comes with that.

    Go independent. You’ll have to find your own meeting spaces and fund your own organizational costs, but you can then make your membership roll as inclusive or exclusive as you like.

  • Mollie


    Yeah, my own view is that the government should not subsidize any speech.

    The civil libertarian beef is that if government has set up a subsidization zone, the government should not be then deciding which speech is approved and which speech is not approved. It should not single out one group as a pariah, etc.

    And Scalia’s dissent shows how the court has ruled differently on the subsidy issue in the past (SDA, Rosenberger, etc.)

  • dalea

    As I keep reading about this, what comes to mind is that CSL uses a very generic descriptor, Christian, to describe itself. And as Terry keeps reminding us, there are moderate and liberal Christians who do not understand the Christian faith in the same way CSL does. I have seen this point made in progressive and GLBT media, but not the MSM. Had CSL called itself Conservative or Orthodox Christian Students League, perhaps there would not have been much of a problem. As it stands, CSL excludes Christians from the UCC, ECLA and other groups.

    What the press is reporting is that this is an issue about finances not religious freedom. The CSL is entitled to its beliefs but not to funding from mandatory student fees. I would like to see more coverage of the civil liberty issues involved.

  • tmatt


    Actually, what you are seeing is how the press quotes CSL as identifying itself. The group is very up front about the traditional nature of his doctrines. That was never in question.

    A question: What happens now if ex-gay leaders want to join the campus network for lesbigays in law? Would they be held in violation of the group’s doctrines?

  • dalea

    Terry asks:

    What happens now if ex-gay leaders want to join the campus network for lesbigays in law? Would they be held in violation of the group’s doctrines?

    Well, GL groups don’t really have doctrines. They have goals and methods, about which everybody disagrees. Anything beyond organizing social events usually involves an incredibly tedious meeting dominated by politically correct nit picking. I would suspect that ex-gays would be welcomed. Along with pretty much everyone else. The reason being that we have learned that people who associate with openly GL folks tend to become much more supportive of us and our goals. IMHE, GL groups tend to welcome everybody and to socialize them to be comfortable with us. Expanding people’s comfort zone with out people is a tactic the GL movement has used for decades and seems to be near universal. All the major ex-gay groups discourage any involvement with out people, so I doubt that would happen.

    Something being missed here is the way GLBT progress advances. With GL issues, the national groups do not lead; instead they play a constant game of catch up. The GL movement is dominated by free-lancers who pop up all over the place. Both repeal of DADT and SS marriage are examples. The national organizations were not much involved. Local ad-hoc groups began suing on marriage and discovered sympathetic courts. Veterans groups have borne the burden on DADT. This is something the MSM misses all the time; just how grass roots the LG movement is.

  • Bob Smietana

    There’s a Christian Legal Society chapter at Vanderbilt University in Nashville, and they adapted their bylaws to comply with the university’s nondiscrimination policies. They would let nonChristians or gays run for office — though the chapter’s advisor said she doubted that people who disagreed with the group’s values would be elected.
    Professor Carol Swain, the group’s adviser disagreed with Supreme Court, but felt like the California group could be more flexible.

    Here’s what she said:

    “Swain believes the Supreme Court’s ruling is flawed because it undermines the First Amendment rights of Christian students. But she sees an upside to welcoming nonbelievers or those who disagree with the group’s sexuality teaching .
    ‘I say let them come and get exposed to the word of God,’ she said.

  • Deacon John M. Bresnahan

    Most campuses have what Catholics call Newman clubs, but I haven’t seen anything about how the ruling affects specifically Catholic groups-if any there- or how they have responded.
    Also, I have seen many comments in the media and elsewhere stating that they should just operate off-campus and function without access to college funds. But I have seen no stories about how the government–now or soon by the trillions–is taking money out of the hands of private citizens through taxes (or fees) and therefore sucking up the power to coerce more and more people in more and more venues to obey the government’s rules. At what point are we virtual slaves to the government because it funds or runs virtually everything from car companies to banks to campus groups.
    There should be more stories about –not just discrimination issues, or religious rights issues,– but the financial issues involved.
    Indeed, why shouldn’t all campus groups be forced to finance their own activities through membership fees and not coerce students or taxpayers to fund any of them. When I was in a state college part of my costs were coerced “student fees”. Yet, I had to work so couldn’t be involved in any of the groups I was forced to help finance. There should be some stories on this collateral issue.

  • Peggy

    Deacon John raises quite a few important issues. Is it b/c the Christian Legal Society, while its tenets were spelled out, is not of a particular denomination that it could be opened to “all comers”? Would a specifically Roman Catholic, Eastern Orthodox, Jews, or Muslim student group have to let in one another, atheists, adherents to different faiths? Would a Catholic Mass at the campus Newman Center be obliged to distribute Holy Communion to non-Catholics? Will Democrat and GOP student groups have to allow one another to join in? What happens when an Italian-American kid tries to join a black student union? The DOJ says race discrimination can only by done by whites, however. White cannot be discriminated against. [See recently quit DOJ atty on the dropped case against Black Panthers.]

    I can’t imagine very many student groups being happy with an “all comers” policy. They should be able to form as groups of like-minded people. They can interact with opposing groups to hear other views.

    The fundamental ideas of free speech and association are damaged greatly by this ruling. Yes, CSL can and will have to operate under the radar now. But will they be allowed to book any campus rooms for meetings? I would have it that no groups get funds, but should be able to use campus facilities for meetings and events. I think conservative prof columnist Mike Adams has written much over the years about the hassles conservative/Christian student groups face at universities today–especially if the groups might not support the gay agenda or feminist abortion dogma.

    I assume a private university is not affected by this ruling?

    I bet if the group had not been so direct on its morals clause they would not have been dinged. But why should a student group that has such a morals clause not be allowed to exist at equal status of other student groups?

  • John Pack Lambert

    Deacon John,
    First off, since Hastings is the only school that claims this policy, it really has no effect on anyone.

    This is largely because the all-comers policy is ludicrous. Groups openly advocate positions, and generally people do not join groups that advocate positions they oppose.

    However, at times some people decide they dislike groups so much that they seek a hostile takeover. The groups that are most at threat for this are pro-life groups, conservative political groups, and religious groups in militantly sexularist schools, especially in places like San Francisco with militant homosexual lobbies.

    However, if all commers policies become common, hostile takeovers will probably become a more common tactic.

    I was going to try to comment on the Neumann Society, but I realized I knew too little of it. I know a little more of the Latter-day Saint Student Associations. LDSSA’s actually at times function most prominently as a way to get institute classes on campus. Since Institute classes are taught by LDS Church teachers within the Church Educational System, and since beyond the doctrinal content of the institute class, LDSSAs mainly function as social groups that in the better organized ones do service projects to help the community, they are not likely to face attack.

    I am fairly sure the only benefit they seek is use of space on campus for classes. In campuses with larger LDS populations, the Church builds an institute building on church owned land adjacent to, or at times surrounded by, the campus. The LDSSA would then operate there, and have even less need for recognition.

    LDSSA’s are not formally used to advance political positions, and membership is open to anyone who wants to join. There might be a few limits, but they are not likely to get in conflicts that would cause hostile take overs. Larger ones may sponsor speakers, as does the LDS Law Society at Harvard University, but these tend to be men like Elder Dallin H. Oaks, who as a Mormon aposlte has earned the ire of some MSNBC commentors for defending Proposition 8 and speaking against the mob violence against its supporters, but who is not nearly as controversial as say Horowitz.

    Elder Oaks talk that generated outrage from the main stream media was at the Church owned BYU-Idaho, not the one at Havard Law School. His Harvard Law School talk also had some level of endorsement from the Harvard Divinity School.

  • Stoo

    When I was at uni, to be officially ratified by the Students Union (and receive funds etc) a society had to allow anyone to join, and also allow anyone to stand for office (ie society president, treasurer).

    I don’t recall any “hostile takeovers” taking place. And the one christian society that couldn’t bring itself to comply (many others did!) still operated well enough.

  • Jon in the Nati

    When I was at uni, to be officially ratified by the Students Union (and receive funds etc) a society had to allow anyone to join, and also allow anyone to stand for office (ie society president, treasurer).

    Same for me. I helped found an OCF chapter during undergrad, and although technically we had to allow *anyone* to stand for office, those of us founding members had a sort of gentlemen’s agreement that we would not elect officers who were not practicing Orthodox Christians,.

  • Deacon John M. Bresnahan

    Jon–Talk about a lawyer’s field day. “A gentleman’s agreement” end-run against a government or college Diktat. You better scrub that sentence from here.
    John P.– I agree with much of what you say. Hasn’t anyone seen the videos of Islamic radicals on campus after campus shouting down any speakers that are Jewish or pro-Israel. Does anyone doubt such radicals would use this ruling to try to cripple groups they violently demonstrate against.
    And Stoo–What is “well enough??” Operating with a sword hanging over your head?? Why not not fund ANY group–put a choice option on the college admission form. Here in Mass. many are convinced–since so many campus groups are left-wing–that student fees are nothing but a scam to finance leftist groups.
    Also–pardon my ignorance–I must have missed it–but what school is “uni”??

  • Stoo

    No swords hanging. They had a large membership and a major campaign every year where they put up stalls, wandered around in official shirts handing out leaflets etc etc. They just didn’t get any DSU money.

    Anyway the idea is that if you want funding from an organisation representing and providing facilities and welfare for the entire student body, you should be open to all of that student body.

    Uni is short for university.

    In the interests of a journalism comment – that Washington Post article doesn’t seem to mention the inconsistency quoted: “Only religious groups were required to admit students who did not share their views.” I’d have liked to see more about that.

  • Kyle

    “The school doesn’t accept all students who apply, etc., etc.”

    Does the school deny students admission based on their sexual orientation? Very, very different.

    “For instance, will you see a bunch of traditional Christians join the campus gay rights groups, take it over and wreak havoc?”

    I would hope not but, again, this is considerably different. A campus gay rights group wouldn’t likely forbid heterosexual Christian males from joining the group because of their sexual orientation, gender or religion. Should these individuals behave in a bigoted manner, that would surely be grounds for removal. Labelling bigoted behaviour “traditional” or “unpopular or politically incorrect” does not make it any less bigoted.

    What if this wasn’t a Christian club but a White Power club who denied membership to black people or those with “unrepentant participation with or advocacy of equal status of black people?”

    Sadly, I’m sure there are groups like that still out there but colleges don’t have to fund them either. They exist mostly in the shadows which is where homophobic groups belong as well.

  • Mollie


    The whole point of this decision is the “all comers” policy. The school says THAT is how they interpret their anti-discrimination policy — but ONLY insofar as the RSOs are concerned. It would be akin to saying that you have to accept all students or have to hire everyone who applies. But they don’t think that their anti-discrimination policy works the same with hiring or admissions as it does with RSOs.

    As I noted, it’s kind of hard to understand but an important distinction none-the-less.

    And apart from how you just compared traditional Christian doctrine on sex as comparable to White Power, the position of the dissenting justices was that the way the school behaved was just like that — as if this Christian group should be treated like a pariah unworthy of space in the public square.

    A wonderful example of the conflict between gay rights and religious freedom, though — and something journalists should keep an eye on.

  • Steve weatherbe

    I don’t think Get Religion is accurate in saying the Interfaith Alliance backed the school. their statement worries that the ruling will restrict religious liberty.

  • Mollie


    You are totally right. I’m very sorry for the error. I knew they didn’t file an amicus in support of CLS and wrongly assumed that meant their amicus supported the school. It didn’t. They filed in support of neither party.

  • Mollie

    And I updated it to show a different religious group that supported the school. Thanks, again.

  • Kyle


    Well, the point is the two situations are not at all analogous. You simply can’t compare the school refusing to fund student groups that discriminate based on sexual orientation with the school having limited enrolment where positions are awarded to students based on academic achievement.

    Yes, bigots should be treated like pariahs. The school definitely should not be forced to fund them.

    This particular group is free to meet off-campus and no one is forcing them to change their belief. So how is this really a “religious freedom” issue?

    We all have the freedom to believe whatever we want.
    The school has the right not to fund bigoted clubs who discriminate based on sexual orientation.

    That distinction is very clear and should be easy to understand.

    Labelling an attitude as a “religious belief” does not make it immune to criticism. Otherwise “religious beliefs” could be used to justify nearly anything. In this case, their interpretation of Christianity does not justify or excuse their bigotry.

  • Jon in the Nati

    Jon—Talk about a lawyer’s field day. “A gentleman’s agreement” end-run against a government or college Diktat. You better scrub that sentence from here.

    Whatever you say, Deac.

  • Stoo

    While in the interests of diplomacy I’ll distance myself from the commentry on bigotry, I agree with Kyle otherwise. Of course different rules will apply for joining a club within the student body vs becoming a student in the first place, or becoming an employee of the university.

  • Joel

    We all have the freedom to believe whatever we want.
    The school has the right not to fund bigoted clubs who discriminate based on sexual orientation.

    That distinction is very clear and should be easy to understand.

    Except that it isn’t. It’s based on faulty premises.

    The organization’s actual rules didn’t say anything about orientation, but about actions and advocacy of actions. A member could be sexually oriented toward anything or anybody, and still be in perfectly good standing so long as those inclinations weren’t acted on. The CLS had rules about conduct and public stances, which any other student organization is also allowed to do.

    Kyle is using a conjugated adjective: I am orthodox, you are dogmatic, he is bigoted.