Law at the Jesus Creed: David Opderbeck

Lawbook.jpg — Law and Mission?

This past Monday, the case of Christian Legal Society v. Martinez was argued before the United States Supreme Court.  The case arises out of the refusal of the University of California, Hastings Law School to recognize a local Christian Legal Society chapter as an official registered student organization.  As described in the CLS’ Brief, at U.C. Hastings,


RSOs are entitled to meet in university rooms, to apply for funding to support various group activities, and to access multiple channels for communicating with students and faculty–including posting on designated bulletin boards, sending mass emails to the student body, distributing material through the Student Information Center, appearing on published lists of student organizations, and participating in the annual Student Organizations Fair.


The CLS requires members to affirm a basic Christian statement of faith and to seek to live a Christian lifestyle, including avoiding sexual practices believed to be inconsistent with Christian faith.  U.C. Hastings found that these membership standards violated the school’s non-discrimination policy, which prohibits discrimination on the basis of religion or sexual orientation, because the CLS’ standards would prohibit gay students from joining the organization as members or leaders.  CLS argued that this action violated the U.S. Constitution’s free speech and free exercise of religion clauses.  A broad range of Christian organizations filed amicus briefs in support of the CLS, and the case was argued on CLS’ behalf by Stanford law professor Michael McConnell, a highly distinguished scholar and jurist.

What have you heard about the CLS v. Martinez case?  How do you think the Court should rule?

What do you think about the missional implications of the Martinez case?  Should Christian groups litigate to obtain government recognition and benefits?  What place should such litigation occupy in the context of the missio Dei?

I confess that as a legal scholar and a missional Christian,
I feel conflicted about this case. 
On the one hand, U.C. Hastings’ policy seems to represent political
correctness run amok.  In

a recent interview, the U.C. Hastings Dean suggested that, under the
school’s non-discrimination policy, the Black Law Students’ Association would
have to admit KKK members and the B’nai B’rith chapter would have to admit
Muslims.  Presumably the Muslim Law
Students Association would have to admit Christians, and so on.  As Justice Antonin Scalia observed
during oral argument, “It is so
weird to require the campus Republican Club to admit Democrats, not just to
membership, but to officership. . . To require this Christian society to allow
atheists not just to join, but to conduct Bible classes, right? That’s

Moreover, I think the CLS and its amici probably have the
better side of the legal arguments on the establishment clause and free speech
issues.  Religion occupies a unique
place in our Constitutional order. 
We should be very wary of policies that would require religious
organizations to give up their core distinctives in order to participate
equally in the public square with other organizations.

Without doubt, a ruling in favor of U.C. Hastings could
jeopardize not only ministry organizations that operate on secular university
campuses, but also religious educational institutions, such as Christian
colleges, that benefit in some way from federal funds.  This case could represent a substantial
wedge between access to government benefits and religious organizations that
adhere to “discriminatory” views of human sexuality or belief in God.  It is not entirely unreasonable –
although it would be many steps removed from the Martinez case – to envision a world in which religious people who
hold traditional views about God and sexuality would be precluded from access
to public programs such as public safety, health and disability benefits.  This of course happens in many parts of
the world today.

And yet, what bothers me is that this particular case is
about official government recognition and access to government funding for a
local extension of the Church. 
U.C. Hastings is not seeking to prohibit Christians from meeting
together or from expressing their personal views.  Rather, the school is withholding official recognition and
access to the funds and facilities that are available to recognized student

Why do we expect Caesar to favor the ekklesia?  Why does it
seem so easy for us to mobilize resources all the way to the Supreme Court when
the issue involves preserving Christianity’s historical privileges in American
political culture?  Why should an
organization like the Christian Legal Society fight so hard for official status
and the paltry funds that accompany that status? 

It also bothers me, to be honest, that this case seems to
represent another round in the war between evangelicals and homosexuals.  As I’ve said on this blog before, I am
not a revisionist concerning Christian sexual ethics.  (My views on Christian sexual ethics are similar to those
expressed by Richard Hays in his book The
Moral Vision of the New Testament
However, I deeply regret the animosity between evangelicals and the gay
community.  Although the CLS is not
an “anti-gay” organization, I wonder about pursuing litigation that in the
public mind inevitably will represent another titanic clash between Christians
and gays.

I have great respect for the people involved in the CLS’

case, so my questions shouldn’t be taken negatively.  For me, this case raises a tension between older models of
cultural engagement, which prize high-level constitutional litigation, with a missional
perspective that views the Church in American society as a community in exile.  I hope the Court rules in CLS’ favor,
but in my heart I wish the dispute had been resolved by some other means.


"A well considered and well written article which also applies in Britain, but just one ..."

The Death Of The Church: 1
"What are the current top 5 books supporting evolutionary creation? Can someone point me to ..."

Thanks To Deborah Haarsma
"This is a very good point.Does Putnam address the increased number of ways to connect ..."

The Death Of The Church 2: ..."
"She demonstrates tremendous grace, wisdom and patience in responding to ill informed critiques"

Thanks To Deborah Haarsma

Browse Our Archives

Follow Us!

What Are Your Thoughts?leave a comment
  • John C

    There has been a rash of similar cases in the UK over the past few years – e.g. Christian Unions suspended from Student Unions for having statements of faith, a British Airways stewardess required to remove the cross she was wearing, a Christian sex counsellor sacked for refusing to advise gay couples, a marriage registrar sacked for refusing to register civil unions between gay couples.
    As in the US, Christians have fought back – the former Archbishop of Canterbury, George Carey, has led the charge, and a Christian legal centre has been set up to fight cases:
    Like you, I feel somewhat ambivalent about this culture war. On the one hand, we Christians are getting a taste of our own medicine, since we used the law pretty systematically for a millennium or so to discriminate against minorities. On the other hand, I worry that some aggressive secularists (including some gay activists) seem unable to deal with real pluralism, and want to impose their values rather than learning to tolerate otherness. What’s wrong with Christians pushing back against that? Didn’t Paul invoke his rights as a Roman citizen? Isn’t there a vital principle at stake – learning to accommodate our deepest differences in the public square?

  • Daniel Mann

    You wrote, “I deeply regret the animosity between evangelicals and the gay community. Although the CLS is not an “anti-gay” organization, I wonder about pursuing litigation that in the public mind inevitably will represent another titanic clash between Christians and gays.”
    I too regret this animosity, but it seems like the conflict is unavoidable. Just look at the case to our north:
    • “The human rights complaint filed against Bishop Nicola De Angelis of Peterborough, Ontario over his decision to disallow an open homosexual from acting as an altar server in the diocese will now go to mediation…[The plaintiff Jim] Corcoran is seeking up to $25,000 in damages from the bishop, and $20,000 each from 12 of his fellow parishioners at St. Michael’s in Cobourg, whom he also named in the complaint…It is believed that this is the first case in Canada to be accepted by a human rights tribunal that relates to the internal governance of the Church.” (4/13/10,
    This challenge threatens the very status of the church as the church. There is no reason to believe that if the church fails to respond to “Martinez,” the gays will then be happy with our intra-church “discriminatory” practices and live in peace with us!

  • David,
    UC Hastings’ position is incoherent. While they point the figure at the CLS by virtue of discrimination, UC Hastings is discriminating against CLS.
    I also object to your characterization of the CLS’ action as an attempt at “preserving Christianity’s historical privileges in American political culture.” This is not a matter of “privilege” but of “equal access.”

  • JHM

    I think a significant problem here is the way organizations are set up on most university campuses. I started a science grad student association at my university and learned a lot about the politics and policy around it. A very significant issue is that most universities, because of liability, won’t allow a non-official organization to do much of anything on their campus. We weren’t allowed to advertise, rent rooms, etc. until we were officially recognized. It’s not about the money (although it’s hard to create an organization from scratch), its the “official” stamp is need to participate on campus.

  • EricG

    I share David’s concern about the missional implications of what CLS is doing. In general, I have to admit that I have a knee jerk reaction against anything they do, since a (the?) primary purpose of the organization has become fighting the culture war. A while back the local chapter circulated guidelines for mentorship that read like a plan for teaching the religious right manifesto (I understand it came from the national organization leaders); it focused on issues like (their view) of the importance of understanding Israel’s importance for eschatology, and other religious right politial issues. There is little room in the organization for third way Christian lawyers.

  • EricG,
    Even if the CLS are involved in “fighting the culture war,” should still become a grounds to discriminate against it, especially in light of the fact that everyone else is also involved in this?
    The universities covert exercise their own “viewpoint discrimination.” They discipline those who leave the unwritten confines of their own multi-cultural, religiously pluralistic religion.
    Would faculty be hired or receive tenure if they spoke out against the homosexual lifestyle, evolution or abortion?
    I think that we need to promote a marketplace that is open to all viewpoints. It’s just too suffocating, repressive, monopolistic and dangerous to allow our institutions to determine the type of speech allowable.

  • Acts 16 has the story of Paul and Silas in Macedonia. Lydia and her household convert and it appears to become the base for Paul and Silas’ ministry there. Paul and Silas heal a slave girl. That angers the owners and the crowd turns on Paul and Silas. They are publicly flogged and thrown in prison overnight. It is not until the next morning, when the magistrates tell them to leave the town that they announce they are Roman citizens who were flogged without a trial, placing the authorities in a highly perilous position. They could be executed for such an offense. They come come to appease Paul and Silas and publicly escort them out of the city as Paul and Silas demand. They stop by Lydia’s house on the way out and are gone.
    Kenneth Bailey asks an interesting question here. Did Paul and Silas forget they were Roman Citizens and then suddenly remember the next morning? Or was there something quite intentional going on here? Bailey suggests Paul and Silas allowed this to happen to gain political leverage over the city magistrates. Bailey suggests when it says “they went to Lydia’s house” before leaving that “they” likely included magistrates who were escorting them. The authorities would see Paul and Silas with Lyida and her fledgling house church. Either way, the message was clear: Lydia was Paul and Silas’ friend. Mess with Lydia and we may just have to report your flogging activities to the authorities.
    I raise this only to point out that Paul and Silas seemed to have no qualms about using the state’s legal apparatus to their advantage. They used it rather boldly at that. I’m not saying this directly addresses our case but rather that the New Testament Church seemed to much less squeamish about using the apparatus of the state than it might first appear.

  • I share the conflict.
    On the merits of the case, I think CLS is in the right. If groups are unable to be about something in such a way that others are excluded, in what sense can they be groups? As long as all groups are treated equally (such as, for instance, a pro-gay rights group who would obviously not want to admit anybody who viewed homosexual activity as sin), there shouldn’t be a problem here. The university itself should not act in a discriminatory manner, and it should ensure that the university is a safe place and all disagreements are civil.
    But…was this the wisest course of action for CLS? Is it worth it? Yes, Paul used his rights as a Roman and appealed all the way to Caesar, but not because he was really concerned about his rights. He did it to spread the gospel. We are also warned not to sue each other in the pagan courts, which isn’t a direct analogue of this situation, but should make us consider what we’re really concerned about.
    I don’t know what steps CLS may have taken before going to court. I hope they made a variety of sincere and creative efforts to engage with the school and with gay rights groups on campus. I hope they honestly considered whether it would be worth it to take the hit and be an unofficial group, meeting off-campus or wherever they can, rather than contribute to acrimony, litigiousness, and factioning.

  • EricG

    Daniel Mann – I wasn’t commenting on the merits of this case; I tend to agree with you on that point. My concern is different: Whether or not it is correct in this instance, CLS’s overall policy of becoming an arm of the religious right cultural wars inhibits it from becoming a missional organization. And it tends to effectively exclude more moderate Christian lawyers from involvement.

  • Michael, excellent point. How do you see this translating into the CLS case? Should they allow themselves to be “flogged” first–that is, shut out of the university community and the chapter shut down, and then sue the school? I’m curious to hear your opinion.

  • dopderbeck

    EricG(#5) — wow — I’m very surprised to hear that a CLS chapter would take a specific position like that on Israel and so on. Where are you at law school? I’m hoping that my friend Mike Schutt, who directs CLS’ law student ministries, will drop in here to add his perspective on the case. Mike and I have somewhat different perspectives on this, but there are lots of things we agree on. Mike — if you stop in, I wonder if you could shed some light on EricG’s comment?
    That said, I also feel that there isn’t much of a support structure for “third way” Christian lawyers in the U.S. It seems that there is plenty of organizational support on the Christian right (with organizations like the Rutherford Foundation), and some loose organizational support on the Christian left (Sojourners), but little vision for what a “third way” or “missional” approach to the law and lawyering would look like.

  • Karl

    In my experience, CLS chapters can vary widely from campus to campus, depending on the student leadership. Some are nothing more than fellowship groups, often engaging in missional activity. They might meet once a week for Bible study and prayer for example, and help build a Habitat house once a semester, as did the one I participated in. But on another campus they might be very active advocating – providing an often otherwise unheard voice – for what they perceive to be the Christian position on various “culture war” topics. Even a national CLS conference (primarily for practicing attorneys, not just law students) can be a mixed bag. One that I attended had two plenary speakers. One was a woman who spoke on social-justice type issues, and the other speaker spoke from more of a “religious right” perspective, encouraging the attorneys present to fight as culture warriors.
    I agree with David when he says: “I hope the Court rules in CLS’ favor, but in my heart I wish the dispute had been resolved by some other means.” However I place the blame for the dispute not being resolved by other means more on the school than on the CLS. Maybe the better thing for CLS to do would have been to walk away and not sue, but I do think they have the better of the legal arguments. The policy in question would force a feminist group to allow avowed male chauvinists as voting members, a gay group to allow one of Fred Phelps’ group as a voting member, a Muslim students’ group to allow as a member someone who believed with Franklin Graham that Islam is of the devil and whose sole reason for joining the group was to evangelize them and turn them all into Baptists, etc.
    Allowing those differing beliefs to coexist on the same campus may be a good thing and may foster the free exchange of ideas. But to force groups organized around certain beliefs to accept as members of their group someone who disavows those beliefs, is just nonsensical and IMO, is heavy-handed and impermissible viewpoint discrimination, not to mention its free-exercise implications when the group in question is a religious one.

  • DRT

    It seems obvious to my mind that the university has to be equal to all groups unless there is some sort of nationally recognized policy for discriminating. Would you all really be in support of CLS if CLS was some sort of hate group?
    Clearly the University should not use public funding to support a hate group, not even a hate group as well accepted as the extreme religious right.

  • Daniel Mann

    You responded, “CLS’s overall policy of becoming an arm of the religious right cultural wars inhibits it from becoming a missional organization. And it tends to effectively exclude more moderate Christian lawyers from involvement.”
    I think that even our voice as a “missional organization” might be at stake. If Dave is correct that that “Martinez,” “could jeopardize not only ministry organizations that operate on secular university campuses, but also religious educational institutions, such as Christian colleges, that benefit in some way from federal funds,” don’t be surprised if such a ruling undermines the Christian – and missional – character of our institutions.
    I can’t argue that the CLS is equally inviting of “moderate Christian lawyers.” You probably are correct about this. But wouldn’t it be better to champion their right to self-determination so that you can also exercise that right regarding any politically incorrect group that you might want to be a part of?
    I, like you, tend to hold Christians to a higher standard – a Biblical, missional one. However, before the law, we should NOT hold them more accountable than others. That would represent a double-standard.

  • Andy #10
    In short, my take is that CLS is not asking for privileged status for Christians … only that they be treated as everyone else. They are asking the government to abide by its own principles. That seems to me to be an appropriate exercise of citizenship for Christians. (But I do appreciate the PR problem the post raises.)

  • EricG

    David O —
    I’m a practicing lawyer, not a law student, so the CLS chapter I’m talking about is the one for practioners (in Chicago), although law students also attend.
    I’d be interested in Mike Schutt’s views too, if he stops by. I’ve read most of his book on the subject of Christians and the law, where he takes the position that a primary goal for Christian lawyers should be to actively influence culture. (I also attended one of the sessions at an Intervarsity event he lead in Chicago a little over a year ago, but didn’t get a chance to talk to him). I agree with that point as a general matter, but how do we balance that with the concern about not being co-opted by a political religious right agenda? Does he agree that there is a risk that political and legal engagement will detract from the overall Christian mission in the world? In my mind, the CLS has crossed the line based on some things being circulated (at least in the chapter here) within the last year or two.

  • dopderbeck

    Michael (#15) — you are right that the CLS chapter isn’t asking for “privileged” status, meaning some privileges beyond what other student organizations have. It is, however, asking (a) for “official” recognition; and (b) for exemption from some aspects of the school’s non-discrimination policy. I think this is a different posture than the example of Paul asserting his Roman citizenship. Paul was arrested, and in his defense, he asserted his rights as a Roman citizen. Nobody in the local CLS chapter is being arrested, kicked out of school, etc. The school is not prohibiting any and all speech involving the political or religious views of the CLS chapter members. Rather, the chapter wants the privileges and benefits of official recognition and is suing to obtain those benefits.
    I understand and agree with the concern that, as a practical matter, “official recognition” is what provides access to the public forum for speech that the university provides. This is why I agree that the university’s action probably is unconstitutional: a public forum for speech must accommodate minority viewpoints, including in particular minority religious viewpoints. A “non-discrimination” policy such as U.C. Davis’ enforced in a way that excludes minority viewpoints from the public speech forum, taken literally, would eventually exclude everyone — every opinion “discriminates” against some other opinion.
    But I wonder: is this really a circumstance in which the “rights” of Christians needed to be affirmatively asserted through litigation? Or, has the “impact litigation” model used by so many civil rights advocacy groups become the de facto mode of civil engagement for many Christians? When, to what extent, and on what issues, should impact litigation comprise part of our mission? Those are the questions I find unsettling.

  • Daniel Mann

    Good challenge, but as much as I hate hate-groups, I would rather allow them to operate — as long as they are not breaking the law — than to place the censorship scalpel in the hands of our government or universities. Ultimately, I think that the light is more potent than the darkness and wouldn’t want to see any ruling that might threaten the promulgation of the light.

  • Daniel Mann

    I fail to understand your disdain for the Church resorting to litigation, Biblically or otherwise. As was pointed out, Paul made righteous use of it, why not us?
    I think that we have a misconception that the world will love us if we just take the abuse and discrimination. No! The world will simply think that Christianity is foolish and lacks wisdom. Thus, we would discredit ourselves.

  • Just to add some context from the field of College Ministry as a whole that might help as we ponder:
    Numerous situations like this have arisen on college campuses. Some become famous cases, but so far – as far as I know – most have ended up settled, even if they did make it a ways into legal proceedings. So oftentimes – perhaps every time – such serious conflicts have been “handled in a different way” as some commenters are suggesting.
    I remember a director of an InterVarsity grad chapter at a prestigious school noting that it MIGHT be helpful for college ministries if we had some actual, on-the-books precedent. While settling in any individual case may indeed be the wisest move, the whole of College Ministry could be benefited by one strong precedent. These cases come along pretty regularly these days, and there are plenty of other campuses where some restrictions are simply accepted.
    Again, that’s just to give background. The missional / missiological implications when it comes to reaching these campus tribes best are well worth considering.
    And just to agree with one commenter, it is important to note that on many campuses, non-access to rooms, areas, and “tabling” means non-access for all intents and purposes. While such an experience can still be dealt with, it’s a difference equivalent to missions work in open countries vs. that in closed countries.

  • Karl

    dopderbeck, have you read Yale law professor Stephen L. Carter’s “The Culture of Disbelief?” Do you see his arguments there having any bearing on this case?

  • Travis Greene

    Daniel Mann @ 19,
    1. Paul made righteous use of litigation. It doesn’t follow that all use of litigation is righteous.
    2. Taking abuse and discrimination is a time-tested Christian strategy. It is arguably the only truly Christian (Christlike) strategy. The way of the cross is indeed perceived to be foolish and lack wisdom.

  • “But…was this the wisest course of action for CLS? Is it worth it? Yes, Paul used his rights as a Roman and appealed all the way to Caesar, but not because he was really concerned about his rights. He did it to spread the gospel.”
    The popular perception persists in many circles that Christians, conservatives in particular, are anti-intellectual. We are told that we have a poor grasp of ethics, logic, and even our nation’s history. What better rebuttal than to demonstrate that it is the academics who persist in ignorance? How does that diminish the gospel message?
    “We are also warned not to sue each other in the pagan courts, which isn’t a direct analogue of this situation, but should make us consider what we’re really concerned about.”
    In this case, Christians are suing a pagan institution in pagan courts. Christians are expected to deal with each other out of spiritual discernment, which we will use to judge angels in heaven. The University of California has no such discernment (obviously), and must be engaged in secular terms.
    The admonition not to sue a fellow Christian is not an indictment of governmental justice, which scripture elsewhere affirms. Presumable God would prefer government to execute justice rather than injustice, even if that justice is offensive to those non-Christians who seek to normalize injustice.

  • This is a good discussion. Thank you, David for asking these thoughtful questions.
    Hi,EricG,in response to your experience with a local chapter (#5), I can say with certainty that the document taking the positions that you have cited did not come from the national office or directors, and it really does cause me concern to hear the report. Student chapters vary widely in the direction that any given leadership team chooses to take, and much depends on the current leaders and the particular lawyers who take the chapter “under their wing” with or without the national organization’s knowledge. We at national would certainly advise against a mentoring document such as the one you described. (By the way, that’s why we take pains to require leaders to sign a statement of faith and why we spell out the ethical implications of that faith).
    In addition, on EricG’s question (#16) regarding the risk that “political and legal engagement will detract from the overall Christian mission in the world” I agree that there is risk and that we need to tread carefully, particularly given a mixed track record of evangelicals in this regard. But law *is* culture– we don’t just influence it, we “do” it. So the question isn’t whether we influence the surrounding society with law, it is how we go about it. In this sense, I agree 100% with the tenor of both David’s post (“in my heart I wish the dispute had been resolved by some other means”) and most of the comments. First, the primary way that we should “influence”– participate in the redeeming power of Christ in culture is by loving our neighbors. Second, therefore, the use of the courts as a bludgeon– an instrument to get one’s way in a power move– is a bad thing for believers to do. Litigation should be a last resort– even when the offending party is the state, as here– and great pains should be taken to resolve the dispute without resort to the courts.
    But our use of the courts here does not strike me as unrighteous or unloving, particularly given that many steps were taken to the resolve the dispute in advance of litigation (litigation really is always the last resort for the Center for Law & Religious Freedom, one of the best organizations, in my mind, in this regard), and the innocence of the CLS chapter in the case, making the actions of the university clearly unjust. (I *might* go so far as to say that it would be unloving to our neighbors who meet in meet in groups on campuses all across the country if we failed to stand against state-sponsored injustice here).
    I am happy to elaborate more on the question, but I may have already overstayed my welcome! Thanks for the good insights.

  • EricG

    Thanks Mike, good to see you here. I took a look back through my emails, and one of the things circulated that concerned me was a local document. But another — the “mentoring” document I mentioned — appears to have come from national CLS. At the top it says it comes from “CLS Ministries,” and refers to the “Attorney Ministries Committee,” which I understand to be a national committee. Under the list of objectives for each CLS lawyer, it lists “Can intelligently discuss the return of Jesus through world events such as the restoration of Israel in 1947,” and includes references to understaning the purported impact of the “homosexual political agenda” on children, etc. This sort of rhetoric from CLS national seems excessive to me, and to buy too much into the religious right.

  • EricG

    Not to mention that the eschatology seems wrong to me! It certainly shouldn’t be an objective of national CLS to get people to buy into that sort of view of the end times.

  • MikeK

    Just to add another perspective from a campus minister:
    If CLS had made their expectations exclusive to those who would lead the student chapters of CLS, this whole case would have been solved inside the office of Student Affairs at Hastings.
    One might speculate that the administrators at Hastings would learn from other settings around the nation and determine: if religiously-based student orgs want a faith commitment *only* from their student leaders, they can have it with integrity and without any repercussions from the institution.
    Making the expectations applicable to those who would be members set this conflict off.

  • Mike Schutt

    Thanks, Eric, for looking into that and getting the source (#25). I am surprised by this, and I apologize for being “certain,” and then being wrong. The Atty Ministries Committee is in fact a committee with ties to the national office, overseen, at least in theory, by someone on the board of directors. I can say with certainty that these things are not typical of the current (and recent) Law Student Ministries objectives, but of course that was not your point. We do need to watch our politicizing language– and documents.