The Constitutional Right to Discriminate

December 7, 2009 3:29 PM

The Supreme Court has taken review in a case in which a law school barred a Christian legal group which apparently excludes non-Christian and LGBT students. The Hastings Christian Fellowship, a chapter of the Christian Legal Society, lost its official recognition as a student organization when it wouldn't agree to accept members and officers "regardless of their religion or beliefs about homosexuality" and ran afoul of the Hastings Law School's anti discrimination policy. The HCF sued and lost in district court and the 9th Circuit, which issued a two line order finding the law school's policy reasonable and content neutral. The 7th Circuit, by contrast, ruled in 2006 that such exclusion of the CLS by the Southern Illinois University law school violated the Society's free speech and expressive association rights. Today the Supreme Court, after some dithering, has accepted review of the case.
posted by bearwife (95 comments total)

Uh oh.
posted by Electrius at 3:35 PM on December 7, 2009 [6 favorites]

Uh oh.

Ditto.
posted by gurple at 3:36 PM on December 7, 2009

This is a publicly funded school and public laws forbid discrimination, including for sexual preference.

Clearly there's a much more intricate explanation on this but on its face how is this even remotely arguable? Private religious universities have been granted rights by the same courts to do what they want on their own dollar. So this Christian group is effectively arguing that under no circumstances should their right to be bigots be restricted?
posted by XQUZYPHYR at 3:37 PM on December 7, 2009 [2 favorites]

Who excludes the excluders?
posted by benzenedream at 3:37 PM on December 7, 2009 [7 favorites]

University of California, Hastings College of the Law is a state- sponsored governmenral funded school. Last I checked, separation of "Church" and "State" was/is a fundamental tenet of American colonies, of American politics and society.
posted by ericb at 3:37 PM on December 7, 2009

Looks like Americans United is putting a brave face on it. Not a great judicial environment for this type of case, right now, though.
posted by gurple at 3:38 PM on December 7, 2009

which issued a two line order finding the law school's policy reasonable and content neutral

Last semester, I attended an event where attorneys for both sides in this case spoke about their experiences working their way up the appeal process in this matter. The attorney for Martinez found this two line decision from the 9th Circuit to be most lol-worthy indeed. The attorney for CLS was less amused, although it certainly didn't keep him from grinning like a cat clock all the way through the event.
posted by Sticherbeast at 3:39 PM on December 7, 2009

*sponsored governmental*
posted by ericb at 3:39 PM on December 7, 2009

Why should we tolerate intolerant people? Tolerance is the 'meta' to debate/discourse/coexistence.

The case isn't whether the CLS can exist, it's whether they can exist as an official student organization- and shouldn't student organizations that don't follow the 'meta' rules of inclusion be themselves 'excluded'? The Hastings Foundation strongly believes that some shouldn't "belong"; it is my learned opinion that I now completely agree with them, and agree with the lower courts' opinions.

Well, that clears my docket for the day- I'm gonna go golfin'...
posted by hincandenza at 3:41 PM on December 7, 2009 [1 favorite]

I anticipate the Supreme Courts decision and look forward to reading the opinion. On the one hand I respect the right of an private organization to define its membership requirements. Few would argue, for example, that a religious organization (or a pottery collective for that matter) admit all who apply for membership, especially when the criteria for admission are related to the purpose of the group. On the other hand, these groups were most likely sponsored in some way by the law school, which throws a wrench into things, and homosexuals are members of what seems to be becoming a quasi-protected class. I'm no civil rights lawyer, but I foresee this whole case being and leading to one indecipherable clusterfuck of constitutional law.
posted by gagglezoomer at 3:41 PM on December 7, 2009

Always love it when bigots squeal about being "discriminated" against. What a pack of pricks.
posted by EatTheWeak at 3:42 PM on December 7, 2009 [17 favorites]

...must admit...
posted by gagglezoomer at 3:43 PM on December 7, 2009

They are arguing that being forbidden to discriminate is discrimination.

Seriously. That should be the defending lawyer's single opening and closing statement, and then he should go to the nearest bar and join in wondering what the fuck we've come to as a sentient species.
posted by XQUZYPHYR at 3:44 PM on December 7, 2009 [30 favorites]

From the article in the last link:
The Christian Legal Society, in legal briefs filed with the high court, said its mission “is to maintain a vibrant Christian law fellowship” aimed at fulfilling “Christ’s mandate to love God and to love their neighbors as themselves.”

There seems to be some cognitive dissonance going on here.
posted by friendlyjuan at 3:44 PM on December 7, 2009 [15 favorites]

Wow, this has ramifications way beyond the case, student organizations, or even academia in general (unless the USSC wimps out and uses the BSA as a precedent).


XQUZYPHYR : This is a publicly funded school and public laws forbid discrimination, including for sexual preference.

But at the same time, does that transfer to independent sub-groups within the larger public organization? The school can't discriminate, but can a student organization?

Of course, I thought Obama recently made this a moot point by making sexual orientation one of the protected classes subject to antidiscrimination law. Perhaps someone with a better understanding of the details of Obama's decree could elaborate on this.
posted by pla at 3:45 PM on December 7, 2009

If it's a Catholic Christian fellowship, they can order the champagne now.
posted by Joe Beese at 3:46 PM on December 7, 2009 [2 favorites]

...homosexuals are members of what seems to be becoming a quasi-protected class.

Um, if you have been paying attention, gays are now A PROTECTED CLASS as per the FEDERAL ADOPTION of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act on October 22, 2009.
posted by ericb at 3:46 PM on December 7, 2009 [4 favorites]

Well, pla, it goes like this. The Constitution trumps everything else: statutes, executive orders, regulations, ordinances, what have you. So the question is what the Supreme Court will say the First Amendment requires, and how broadly they will say it.
posted by bearwife at 3:47 PM on December 7, 2009

Of course, I thought Obama recently made this a moot point by making sexual orientation one of the protected classes subject to antidiscrimination law.

This is Bush's Supreme Court. If there is the slightest rhetorical room to allow discrimination by a religious group to be funded by the public, it will happen.
posted by Blazecock Pileon at 3:49 PM on December 7, 2009 [5 favorites]

Clearly there's a much more intricate explanation on this but on its face how is this even remotely arguable?

For starters...and state universities are a political subdivision of the state, so this remains relevant.

Now, I haven't had a chance to do any serious research into the subtleties of this case (and wasn't even aware of it until 5 minutes ago). But it's hardly open and shut. My personal take on it (grounded as much in policy as in law) is that so long as the law school is taking public money, and the student group in question is not, then the law school can't "bar" the group. However, this doesn't confer an affirmative obligation to provide space or funding (and that would be legally problematic for other reasons, chief among them the 14th Amendment), so any other issues may just be irrelevant.

tl;dr: You (government thingy) have to allow people to engage in 1A-protected speech and associative conduct, including in public forums of various types where the forum in question is one of several historically recognized categories, but you don't need to subsidize it or encourage it.
posted by Inspector.Gadget at 3:50 PM on December 7, 2009 [1 favorite]

pla: I thought Obama recently made this a moot point by making sexual orientation one of the protected classes subject to antidiscrimination law.

Congress (the House and the Senate) passed the legislation. Obama didn't veto it, but signed it into legislation.
posted by ericb at 3:50 PM on December 7, 2009 [4 favorites]

But at the same time, does that transfer to independent sub-groups within the larger public organization? The school can't discriminate, but can a student organization?

Arguably yes, when these subgroups are funded with that same public money. If the CLS doesn't want to take that public money as a student organization, then they are free to go hold a super duper not-gay bake sale.
posted by Sticherbeast at 3:50 PM on December 7, 2009 [2 favorites]

University of California, Hastings College of the Law is a state- sponsored governmenral funded school

Although here is another factor: at the rate California is slashing public funds to Hastings College of the Law, it is on the verge of returning to being a private school, the way it was when Serranus C. Hastings founded it in 1873. I don't know the details of how the funds flow to student groups, though.
posted by Kirklander at 3:51 PM on December 7, 2009

My personal take on it (grounded as much in policy as in law) is that so long as the law school is taking public money, and the student group in question is not, then the law school can't "bar" the group. However, this doesn't confer an affirmative obligation to provide space or funding (and that would be legally problematic for other reasons, chief among them the 14th Amendment), so any other issues may just be irrelevant.

I have finals to contend with (I'm wasting enough time as it is!) but I recall that the issue was with the space and funding, as you describe.
posted by Sticherbeast at 3:52 PM on December 7, 2009

ericb,

I am aware of that law. However, members of other groups, such as those defined by race, gender and ethnicity receive further larger federal and state protections than those afforded to homosexuals by the matthew shepard act. That's why I use the term quasi-protected class: homosexuals are gaining increasingly wider state and federal protections, but at the present time those protections are in no way proportional to those of other traditionally-protected groups. For example, I still believe that it is not a federal crime to refuse to hire or rent to someone because they are a homosexual. Correct me if I'm wrong.
posted by gagglezoomer at 3:53 PM on December 7, 2009 [1 favorite]

Arguably yes

I meant "arguably no." No, they cannot discriminate like that. Yes, they can't discriminate like that. Derp.
posted by Sticherbeast at 3:53 PM on December 7, 2009 [1 favorite]

Of course, I thought Obama recently made this a moot point by making sexual orientation one of the protected classes subject to antidiscrimination law. Perhaps someone with a better understanding of the details of Obama's decree could elaborate on this.

Sexual orientation was given federal hate crimes protection. It's still (federally) legal to discriminate against homosexuals in housing, employment, etc. Some states provide protection for in those areas, however. Further, it was not 'Obama's decree.' It was a law, duly passed by both houses of Congress, then signed by the President.

gays are now A PROTECTED CLASS

Not really. Hate crimes protection is pretty narrow. Gays can still be discriminated against in lots of other ways, as mentioned above. Now, maybe they should be a protected class, and I would argue that the Supreme Court's own precedent fairly well demands it, but they are not yet.
posted by jedicus at 3:55 PM on December 7, 2009 [4 favorites]

The Hastings Christian Club can, if they were a private club, discriminate against whomever they want, right? However, since they want to receive school funding, which comes from taxpayers and from fees paid for by all students, they should abide by the rules set by the institution.

This seems to be the legal mumbo-jumbo that invalidates my ethics argument:

Even though recognized student organizations are subsidized by SIU, the U.S. Supreme Court in Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995), found that such organizations engage in private speech. For these reasons the court concluded that "CLS has demonstrated a likelihood of success on the threshold question of whether either of SIU's stated grounds for derecognition actually applies...

CLS is an expressive association, as it requires members to espouse particular beliefs and adhere to a conduct of behavior. CLS would have difficulty conveying its message of disapproval of certain conduct with any sincerity or conviction if forced to accept members and officers who engage in that very conduct. And even though the state has an interest in eliminating discrimination, "the Supreme Court [in both Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), and Boy Scouts of America v. Dale, 530 U.S. 640 (2000)] has made it clear that antidiscrimination regulations may not be applied to expressive conduct with the purpose of either suppressing or promoting a particular viewpoint."

posted by muddgirl at 3:56 PM on December 7, 2009

unless the USSC wimps out and uses the BSA as a precedent

It's important to note that after winning their case in the Supreme Court, the BSA then lost a bunch of cases where public entities that gave them sweetheart deals had to cut those deals because the BSA violated the public entities anti-discrimination rules.

Essentially, the lesson of the BSA is that to retain the right to discriminate, you can't lap at the public teat.

But at the same time, does that transfer to independent sub-groups within the larger public organization? The school can't discriminate, but can a student organization?

I'm not a lawyer, but it's my understanding that the law pretty clearly establishes that anti-discrimination law follows the purse strings. If you take public money, you're bound by public policy.
posted by fatbird at 3:56 PM on December 7, 2009

I'm an agnostic and even I can hear Jesus facepalming over this bullshit.

Between this, the bullshit that went down in Maine and the unforgivably cowardly vote the NY legislature took recently, I expect that any second now the sky's gonna split, the glorious visage of the almighty will appear and his divine voice shall ring from sea to shining sea: "U PRICKS R DOIN IT WRONG."
posted by EatTheWeak at 3:56 PM on December 7, 2009 [4 favorites]

To put it a bit differently: The entity disbursing public funds has no obligation to fund you in contravention of the rules governing disbursement of those funds.
posted by fatbird at 3:58 PM on December 7, 2009

Re the funding issue: CLS attorney Timothy J. Tracey, of the Springfield, Va.-based Center for Law and Religious Freedom, argued that the school's denial of official recognition deprives it of some funding, access to recruit students at official events and access to the school Web site and other publications. The school does provide meeting space.
posted by bearwife at 3:59 PM on December 7, 2009

So anyway, I'm trying to read this statement of faith, which you can allegedly find on their website. The statement itself is pretty standard "I believe in the holy Trinity, yadda yadda" stuff, but the really juicy content requires a membership. The Catch-22 being that you have to agree to the juicy stuff before you can become a member.
posted by muddgirl at 4:02 PM on December 7, 2009

the sky's gonna split, the glorious visage of the almighty will appear and his divine voice shall ring from sea to shining sea: "U PRICKS R DOIN IT WRONG."

I'd worship that God.
posted by fatbird at 4:04 PM on December 7, 2009 [7 favorites]

Um, if you have been paying attention, gays are now A PROTECTED CLASS as per the FEDERAL ADOPTION of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act on October 22, 2009.

ericb: But neither Congress nor the President can expand the definition of "suspect classifications" under the Supreme Court's 14th Amendment jurisprudence, which at the moment only includes racial minorities and religious groups. This case is going to rise or fall, I suspect, on the organization's "free exercise" argument, though I can't download the "questions presented" document from the Supreme Court website at the moment for some reason.
posted by rkent at 4:05 PM on December 7, 2009

However, members of other groups, such as those defined by race, gender and ethnicity receive further larger federal and state protections than those afforded to homosexuals by the matthew shepard act.

gagglezoomer -- the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act does NOW indeed extend Federal protection for "actual or perceived gender, sexual orientation, gender identity, or disability." It's an amendment to the 1969 Federal Hate Crimes Law.

"The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act...expanded existing United States federal hate crime law to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability, and which dropped the prerequisite that the victim be engaging in a federally protected activity."

If I were to not hire you, since I deemed you were straight (aka a 'breeder'), you can sue my ass. And you should!!!!

Gays, straight, bisexual, transgedered; male, female; able bodied, handicapped, etc. WE'RE ALL PROTECTED NOW. ALL. Not just GLBT. ALL. Straight folks, as well!!!
posted by ericb at 4:05 PM on December 7, 2009 [2 favorites]

I can't get the "questions presented" link on the Supreme Court website to work for this case either, but the Supreme Court's blog summarizes the issue presented by the case as: Whether a public university law school may deny school funding and other benefits to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.
This is a first amendment inquiry.
posted by bearwife at 4:15 PM on December 7, 2009

Oops, cite for the SCOTUS blog entry is this.
posted by bearwife at 4:15 PM on December 7, 2009

ericb, you're reading far more into the Matthew Shepard Act than it actually warrants. Hiring or firing someone is not itself a crime, so doing it motivated by animus towards a sexual orientation does not fall under the purview of the Matthew Shepard Act. Contrast this with something that is already a crime, like assault.

(In my earlier comment I confused protected class and suspect class. Homosexuals are a protected class but they are not (yet) a suspect class.
posted by jedicus at 4:19 PM on December 7, 2009 [3 favorites]

muddgirl : So anyway, I'm trying to read this statement of faith, which you can allegedly find on their website. The statement itself is pretty standard "I believe in the holy Trinity, yadda yadda" stuff, but the really juicy content requires a membership. The Catch-22 being that you have to agree to the juicy stuff before you can become a member.

Here ya go.

Funny how they removed the link from that one page but didn't bother actually making the bylaws themselves member-only (I'd grab a copy quick before they fix that oversight).
posted by pla at 4:26 PM on December 7, 2009

Hmm, on reading it, really not all that contentious. I don't think anyone who calls themself a Christian would take offense to it - Most notably, it says nothing at all about homosexuality, the closest it comes involves the application of 2.1.5 ("[I believe in] The Bible as the inspired Word of God") to some of the more colorful portions of Leviticus.
posted by pla at 4:30 PM on December 7, 2009

Hmm, on reading it, really not all that contentious.

I wonder if it has been amended since the ruling? I don't have the time to check timelines right now but I wouldn't be surprised.
posted by muddgirl at 4:33 PM on December 7, 2009

CLS needs to stick with schools like Pat Robertson's Regent University School of Law, which it gets along fine with. Here's CLS working to stop contraception.

Regent's promotional pamphlets are pretty amazing. The one I received in the mail profiled some douchey alum who got to work for Dick Cheney or someone. The pamphlet talked about the great summer externships you could get with anti-abortion groups.
posted by Kirklander at 4:33 PM on December 7, 2009

Yes, the Matthew Shepard act only applies to a limited set of violent crimes and possibly harassment. We still need the ENDA passed for employment, housing, and education discrimination.

And regardless, doesn't this also hinge on a matter of state law as I believe LGBT people are protected from discrimination in the State of California?
posted by KirkJobSluder at 4:42 PM on December 7, 2009

This is a first amendment case. So far there is nothing to indicate that the case is framed as a conflict between first amendment rights and other constitutional rights. As for state laws, the U.S. constitution is the supreme law of the land, supreme to everything, including federal statutes and state laws against discrimination. That means that if the US Supreme Court finds that CLS has a first amendment right to discriminate against non-Christians and LGBT people, CLS can go ahead and do that.
posted by bearwife at 4:53 PM on December 7, 2009 [1 favorite]

Couldn't Hastings decide the funding on a club-by-club basis, and just allow them to be an 'officially recognized student organization,' but with exactly $0 in funding?

Thinking back to my alma mater, there were a ton of 'official' student groups (in the sense that they were registered with the school administration and got included in some list that got passed out once a semester or something), but funding was given out separately on a case-by-case basis, via something like a grant application. You could start a club to do anything you wanted (and people frequently did, generally involving consuming large quantities of beer) but to get any school money you had to make a compelling case for how you were going to use those funds to benefit the student body as a whole. It was very much like a grant-application process, and it was totally optional: if you didn't want those restrictions on your organization, you could just raise funds independently — a few did just that.

I never thought much of it at the time, but it was a pretty good policy. Maybe Hastings could do something similar; it seems like it would pull the rug out from under the victimization claim while simultaneously not actually funding a religious organization.
posted by Kadin2048 at 5:02 PM on December 7, 2009

I wonder if it has been amended since the ruling? I don't have the time to check timelines right now but I wouldn't be surprised.

I think possibly the language comes from the local San Francisco chapter of CLS and not the national bylaws. See Ed Brayton's good write-up.
posted by Kirklander at 5:06 PM on December 7, 2009

P.S. OK, yeah, what happened is laid out in this PDF of a complaint. One year the Hastings Christian Fellowship claimed to be open to all. The next, around 2003, it became an arm of CLS and adopted a new ban on "unrepentant homosexual conduct."
posted by Kirklander at 5:12 PM on December 7, 2009

P.P.S. Sorry, not a complaint, it's an order.
posted by Kirklander at 5:13 PM on December 7, 2009

I love the phrase "unrepentant homosexual" almost as much as I love being one.
posted by rtha at 5:20 PM on December 7, 2009 [29 favorites]

Have we gotten the obligatory MeFi dogpile assuming that objections to homosexual behavior are automatically and inherently a grave moral evil?

I thought not, but someone needs to address the law in this case, and I'm game.

1) Homosexuals are not a protected class under the constitution. It would require a constitutional amendment to make them such. Religion is a protected category under the First Amendment. Race is under the Thirteenth, Fourteenth, and Fifteenth Amendments. Gender is sort of a protected category under the Nineteenth, but only sort of. The Supreme Court has never validated any attempt by Congress to legislate purely on the basis of gender.

The only way Congress was able to pass the Shepherd act was by tying it to interstate commerce. This makes it far, far narrower than both its supporters and detractors probably realized. This is because while Congress possesses the ability to regulate interstate commerce, it does not obviously possess the right to defend any rights based on sexual orientation. It's just not in there. The Supreme Court may one day recognize that power, implicitly making homosexuality a civil rights issue in law as well as rhetoric, but this would be an expansion of constitutional law. I'm arguing neither for nor against such a move, simply asserting that such a recognition would, in fact, be a move.

2) Given that religion is protected by the First Amendment, it's not a slam dunk to say that Congress--and by extension a state government--can regulate religious expression by the power of the purse. In many areas, Congress's authority does follow its spending power, but there are limits, and this is one of them.

Think about it. If governments were permitted to require every entity which receives an iota of public money to adhere to whatever rules the government wanted, the government's power would be essentially unlimited. Don't like gays? Fine. Then we won't plow your streets, collect your garbage, supply you with water, treat your sewage, or permit you into our residual insurance pools. Even more insidious, we'll deny you access to government-subsidized health care. All of these are services provided in part by governments, be they federal, state, or local, and all of them are bound by the requirements of federal and constitutional anti-discrimination laws.

See how bad this can get? Someone is certainly going to say that this is silly, but unless you can show me how you can defensibly draw a line between the case at issue and the hypotheticals I list above, this seems to be exactly the sort of case for which the First Amendment was created. There are going to be Justices who want to vote for the law school here, but I doubt many will find a way to do it. If anything, I think this is an open-and-shut case which CLS is going to win handily. The 9th Circuit--also known as the "9th Circus" in the legal profession--is the single most overturned circuit in the country, and its precedents are not very persuasive outside its jurisdiction. It's also worth pointing out that the Supreme Court may well have taken this case specifically to overturn it, given that the 7th Circuit handed down a case in favor of CLS last year and SCOTUS didn't say boo.

Someone else is going to say that this doesn't matter, because the homosexual activists obviously have the moral high ground. To which the response is "But the First Amendment exists to protect those who doesn't agree with you from your conclusions on what for them is a religious matter." In which case you probably lose.

Someone else is going to say that obviously Christianity just needs to adapt to the new facts on the ground. Again, I'm not going to argue for or against that, I'm merely going to point out that given the current state of the religion and the current state of the law, Hastings looks like it's going to lose. You can bitch and moan about that if you like, but don't just assert that it won't.

IAAL, for those of you who care. While I'm no constitutional law professor, I do have some vague idea about these things.
posted by valkyryn at 5:27 PM on December 7, 2009 [9 favorites]

See how bad this can get? Someone is certainly going to say that this is silly, but unless you can show me how you can defensibly draw a line between the case at issue and the hypotheticals I list above, this seems to be exactly the sort of case for which the First Amendment was created.

IANAL, but isn't there a fairly bright line between generally receiving public services and specifically receiving public funding? In other words, benefiting from the same public goods that everyone does in virtue of existing seems pretty easily differentiated from receiving funding that others aren't.
posted by fatbird at 5:32 PM on December 7, 2009

Kadin2048 : Couldn't Hastings decide the funding on a club-by-club basis, and just allow them to be an 'officially recognized student organization,' but with exactly $0 in funding?

Just an additional detail here that I didn't realize until muddgirl motivated me to "search" their site, but...

This doesn't amount to the local glee club. The CLS actually has a 501(c)3, meaning that the threat of cutting the HCF's funding amounts to a hollow one - They would almost certainly consider that a near-total victory, if not an outright sweet fundraising opportunity.

Sadly, nothing short of having the USSC telling them they simply can't exist in their present form will constitute a "win" for sanity - And as someone else pointed out, the present Bush-stacked court will most likely look for even the thinnest excuse to find in the HFC's favor.
posted by pla at 5:38 PM on December 7, 2009

Nice presentation there by valkyrn (no hamburger.) Now, let me throw out a parade of horribles marching in a different direction. The Supreme Court rules for CLS. Now the KKK, Aryan Nations, and other groups that exclude Asians, women, Catholics, Jews, etc. demand funding, a table at all campus open house events, access to the law school's website, newpaper, and an allocated office. In fact, aren't they entitled to equal access to all resources provided to organizations at every public school? And so forth.

This is an ugly case, no matter which way it comes out.
posted by bearwife at 5:40 PM on December 7, 2009 [1 favorite]

The 9th is also the most awesome circuit in the country...
posted by Kirklander at 5:44 PM on December 7, 2009 [3 favorites]

This case is going to rise or fall, I suspect, on the organization's "free exercise" argument

It probably will have little to do with free exercise. Cases before this have been settled on free-expression grounds, with the expression in question only coincidentally being religious expression.

And, yeah, this case isn't nearly as clear-cut as many here seem to think. Without reading the briefs or earlier documents because they'd probably make be pop a blood gasket, the CLS will likely make two claims.

First, it will likely argue that being an arm of the state, a law school cannot decide which groups it will formally allow and which it will not on the basis of their viewpoints (within some very wide guidelines). If a law school allows (say) a science-fiction appreciation club and a history of Greek philosophy club to form, it can't then say that only those other clubs whose viewpoints are acceptable to the State can form in the same way. The state-sponsored law school can't disallow a club organized around the relaxation of drug laws because it disapproves. It can't disallow a club organized around discussing and promoting libertarian legal theories because it finds them silly. And it can't disallow a club expressing a religious viewpoint it does not support, be that viewpoint of Reform Judaism or conservative Christianity or Aesatru.

Second, it will likely argue that restricting membership to people who actually espouse the relevant viewpoint is an integral part of expressing viewpoints.

As an aside, if it really wanted to the SIUC law school could probably deal with the problem by essentially barring all student organizations, or all student organizations not directly related to the curriculum (if Mergens applies to universities).
posted by ROU_Xenophobe at 6:05 PM on December 7, 2009

If I were to not hire you, since I deemed you were straight (aka a 'breeder'), you can sue my ass. And you should!!!!

I think the question here isn't about something as fundamental as employment or not being assaulted. Whether or not you can form an association that doesn't admit breeders to its membership is a pretty different question than whether or not any given employer has a right to generally deny breeders employment on that grounds. If you want to have some sexysamesex club and don't want my straight ass around, it might hurt my feelings a bit but I don't really have a problem with that. If you're a hiring manager and I'm qualified for a position you have open but you don't choose me because of my straightness, I'd be happy for the chance to sue.

Now, which associations get recognition from a public school is I guess another level, but if you don't like objections to the sexysamesex club being recognized, I don't think you should be particularly cranky about the HCF's existence, unless you can show their chief purpose is to further the violation of fundamental rights like being employed and not assaulted.

Funding's another matter, and not only do I generally agree there's no way this or any other religious organization should be getting any real funds from the operating budget of a public school, I think school clubs that aren't a direct outgrowth of some academic activity shouldn't either.
posted by namespan at 6:06 PM on December 7, 2009

Valkyryn, while homosexuals are not protected, I think you'll find that Jews, for example, kinda sorta are. And like many other bigots, the HCF is apparently not terribly discriminatory in its discrimination.

Also, the US federal government already did the "if you don't lower your speed limit to 55 mph, say goodbye to every dime of highway money we give you" thing, so that bridge has already been crossed and for lower stakes.
posted by Kid Charlemagne at 6:09 PM on December 7, 2009

Kid Charlemagne, to the extent that Jews are religious, they are protected by the First Amendment. To the extent that they are not, ethnic Jews are still protected by the Thirteenth, Fourteenth, and Fifteenth Amendments.

And you're overstating the ability of Congress to coerce the states. Read a little about the history of that bill and you'll see that the National Maximum Speed Law was not nearly as effective as it might have been. Furthermore, there's a big difference between trying to legislate in a place where the Constitution simply does not grant power and trying to legislate in a place where the Constitution affirmatively limits Congressional power, i.e. restricting the free exercise of religion.

fatbird, such lines are really, really hard to draw. Even public services aren't uniformly apportioned. Besides, some public services are simply money, e.g. various welfare programs, Medicare, Medicaid, etc. Furthermore, why isn't this simply "getting money for existing"? They're a student group like every other one, yes? Singling them out on the basis of their religious beliefs is exactly what I described above.

And for those who argue that CLS shouldn't be getting funding out of some desire to separate church and state, isn't that somehow a violation of the First Amendment too? Refusing money to a student group on the basis of their religious character is at least a bit discriminatory, yes? It would seem to be a more serious violation of constitutional law to have the government actively discriminate on the basis of religion than to more-or-less inadvertently fund those who so discriminate.

Again, this isn't necessarily an attempt to argue that CLS should win, only that they've got a really good shot at doing so.
posted by valkyryn at 6:49 PM on December 7, 2009

The 9th Circuit--also known as the "9th Circus" in the legal profession--is the single most overturned circuit in the country,

I don't want to derail, but I hear this a lot, and I always wonder what it means. So I went a-googling, and what comes up but this question from AskMe. It's not as simple as "9th Circuit is quirky and out of tune with the rest of the circuit courts and therefore gets its hand slapped by the SCOTUS a lot more than anybody else."

Anyway. Carry on.
posted by rtha at 6:54 PM on December 7, 2009 [1 favorite]

Of course, I thought Obama recently made this a moot point by making sexual orientation one of the protected classes subject to antidiscrimination law. Perhaps someone with a better understanding of the details of Obama's decree could elaborate on this.

First, the law adds sexual orientation to the list of classes covered under hate crimes legislation, not federal anti-discrimination law.

Second, "Obama's decree?" Really? A law passed by both the House and Senate and signed into law by the president is "Obama's decree?" You might want to brush up on your Constitution.
posted by EarBucket at 6:58 PM on December 7, 2009

rtha, you're right, the story of the 9th Cir. isn't as simple as I made it out to be, but it's still an outlier. In my admittedly limited experience, litigators not in the 9th Cir. rarely use 9th Cir. cases in their arguments. 2d, 3d, 7th, and DC Cir. cases are widely cited in other jurisdictions, but you'll rarely hear a lawyer or a judge not in the 9th Cir. citing 9th Cir. precedents with approval.
posted by valkyryn at 6:59 PM on December 7, 2009

Why don't these religious clubs understand that the best way to do this is not to actually write a policy that discriminates. Instead, allow everyone in, but be a dick to people you disagree with, like gay people.

In fact, the religious club can even tell them "We don't want you here. You're not welcome in our club. We intend to work against you and what is important to you. Here's a membership form if you're still interested. Dues are $15 per semester."

-
posted by General Tonic at 7:00 PM on December 7, 2009 [1 favorite]

The 9th Circuit--also known as the "9th Circus" in the legal profession--is the single most overturned circuit in the country, and its precedents are not very persuasive outside its jurisdiction.

The idea that the 9th Circuit is more susceptible to being overturned than the other circuits is not compelling.
posted by shen1138 at 7:09 PM on December 7, 2009 [2 favorites]

Serious legal question here:

Exactly how DO religious-based organizations work on publically-funded campuses? Because it's my understanding that it's okay for a publically-funded university to give money to religious groups on campus so long as it gave equal money to ALL religious groups on campus, and it was the impartial distribution of funds which kept things on the right side of the separation between church and state.

In other words, it's okay for a public university to give money to the school's chapter of the Young Catholic Social Club or whatever, so long as the school gives an EQUAL amount of money to the school's Jewish club, the Young Muslims Group, the school's Krishna Consciousness group, the University chapter of Pastafarians, the Campus Goddess Grove, or what have you. What the individual religious clubs do with the money and with their own charters is their own business, it's just that the school has to ITSELF play fair by not withholding money from one group but giving it to the other ("sorry, Catholic group, you don't admit people who eat meat on Friday, so we're taking your money away -- but you can have your money, Pastafarians, your charter's okay").
posted by EmpressCallipygos at 7:16 PM on December 7, 2009

General Tonic, the issue is one of leadership. CLS tends to represent a tiny minority of any given law school (except for the handful of self-identified "Christian" ones). That being the case, it would be a rather trivial matter for the population of the law school to turn CLS into what they wanted it to be, regardless of whether that vision had anything in common with what CLS as a national organization stands for. Before you know it, CLS would be yet another pro-gay organization on both the local and national level.

Maybe people like this, but there is something pretty important about the ability to form a group which supports one's own viewpoint, especially if that viewpoint is out of favor in society. A critical part of this is the ability to control who becomes a leader in that group. CLS represents people, conservative Protestant Christians for the most part (Catholics have their own group and tend not to fraternize with heretics (mostly kidding, but only mostly)), who are opposed to homosexual behavior for religious reasons. Ergo, if it is to be a group which represents its constituents, CLS and other groups really do need to write policies which "discriminate" to some extent.

Every group does this, really. It's just that most groups have chosen hills upon which no one is going to call on them to die. CLS, on the other hand, at least in San Francisco, has chosen one which has gotten them a ton of bad press. Rights are really only rights when you're exercising them despite public opposition, not in concert with it.
posted by valkyryn at 7:19 PM on December 7, 2009 [2 favorites]

pla: "This doesn't amount to the local glee club. The CLS actually has a 501(c)3, meaning that the threat of cutting the HCF's funding amounts to a hollow one - They would almost certainly consider that a near-total victory, if not an outright sweet fundraising opportunity."

I don't really get how that would be a 'victory' for them, or why it would be (perhaps 'have been,' it seems a bit late) an unsatisfactory conclusion to the matter insofar as the case is concerned. I dislike the HCF's (apparent) stances as much as probably anyone else here, but if they're not getting any school money and they instead achieve all their money through independent fund raising, that seems pretty much fair.

As long as they're no longer getting coercively-obtained funds (tax or tuition dollars) but instead are taking in donations from people who know where the money is going and are giving it directly, it's hard to come up with a substantive objection besides simply not liking their politics very much — and as offensive as they may be, that's not much of a standard.

Their 501(c)3 status is a separate issue, but they're hardly the most offensive group around with one of those. It's a whole 'nother can of worms, particularly as it pertains to political lobbying by religious groups (or political groups using a thin veil of religion to get themselves tax protection).

Whichever way the case works out, the HCF will paint it as a victory — that's just PR. What they will or won't consider a victory has little to no bearing on what the precedent going forward ought to be. The HCF in general is small beans — they're the Illinois Nazis in all this. Whatever the USSC decides, the HCF as an organization will be a historical footnote long before we're done dealing with the ramifications of the court case.
posted by Kadin2048 at 7:21 PM on December 7, 2009

shen1138, neither is the article to which you link. It's a takedown of Falwell. Granted, the guy deserves to get taken down, and does in fact misstate the case. Besides, MediaMatters isn't exactly my trusted source for legal analysis.

The numbers they cite are for a two year window. As indicated in the article I first linked, Judge Posner has done statistical analysis going back decades, and while there is some dispute as to the meaning of his findings, the idea that the 9th Cir. has a statistically-significant lead in getting overturned is largely uncontroversial in legal academic circles.
posted by valkyryn at 7:25 PM on December 7, 2009

The question here though is not whether they have the right to meet at all, but whether the school's decision to deny the group "official recognition" and the perks that go with it - presumably meeting space and funding.

I for one am rather torn on this issue. It would be simplest to say that the school is perfectly right to enforce a code of behaviour on groups it officially recognizes, provided that it is not designed to discriminate against a particular group.

On the other hand, it seems that supporting student groups in all areas-including religion-is good for encouraging student freedom, and blocking one out because it doesn't admit people who behave in contradiction to what they believe their religion dictates.

However, if we do demand that a school support groups that may discriminate against people based on religion or creed, how do we properly distinguish that from forcing schools to fund the student KKK or the student Islamic Jihad movement?
posted by Zalzidrax at 7:34 PM on December 7, 2009

Second, "Obama's decree?" Really? A law passed by both the House and Senate and signed into law by the president is "Obama's decree?" You might want to brush up on your Constitution.

Well, when the House and Senate fail to draft and pass a bill repealing DODT or DOMA, that's obviously Obama's failure.
posted by kafziel at 7:36 PM on December 7, 2009

Kadin2048 : I don't really get how that would be a 'victory' for them, or why it would be (perhaps 'have been,' it seems a bit late) an unsatisfactory conclusion to the matter insofar as the case is concerned.

I would call it an unsatisfactory conclusion because they don't need the pittance schools tend to give to their student organizations. If anything, it would likely increase their funding since it gives them a major talking point to use to appeal to their primary contributors... "The big ol' government said we can't ban gays, so we lost our funding, won't you please help us carry on doing His work?"

More importantly, it would set the stage for forcing schools to recognize an array of organizations that really have no place anywhere, much less in an institute of higher education... Can the KKK demand recognition from colleges if they waive funding, for example?


Their 501(c)3 status is a separate issue, but they're hardly the most offensive group around with one of those.

Fair point, and I agree. I mentioned that to point out that they almost certainly don't depend on their income from the school - You don't get one of the most coveted IRS tax exempt classifications (short of secret deals with Scientology) to shield a mere $5-10k from the government.
posted by pla at 7:40 PM on December 7, 2009

Zalzidrax identifies the core problem here: anti-discrimination ideals, when an end in themselves, always eat their own tail. Such ideals must be in the service of some higher good or they inevitably lead to incoherence and contradiction.

The question then becomes what higher ideals are available. Such answers usually involve sort of philosophical if not outright theological pontification.
posted by valkyryn at 7:41 PM on December 7, 2009

1. Media Matters performed statistical, not legal analysis. Your comment does not rebut the statistics. I also don't see Posner's article that you're talking about. You linked to an LA Times article by Brian Fitzpatrick.

http://www.scotusblog.com/movabletype/archives/FinalOT04CircuitScorecard.pdf

provides the same analysis as the media matters links.

Finally, all of these analysis of "most overturned circuit" are misleading, because they do not list the statistics for appeals where cert was denied (which is the equivalent of the Supreme Court agreeing with that opinion's analysis / holding). If the 1st circuit had 100 opinions where cert was filed, and 3 of those cert petitions were granted and overturned, that's 3 percent. If the 9th circuit has 1000 opinions where cert was filed, and 16 of those cert petitions were granted and overturned, that's 1.6 percent. Thus someone can claim that the 9th Circuit was the "most overturned" while still being entirely wrong about the rate or likelihood of being overturned.

So to repeat the claim that the 9th Circuit is more likely to be overturned than another circuit, absent analysis of denied cert petitions, is unfounded.

2. In my admittedly limited experience, litigators not in the 9th Cir. rarely use 9th Cir. cases in their arguments. 2d, 3d, 7th, and DC Cir. cases are widely cited in other jurisdictions, but you'll rarely hear a lawyer or a judge not in the 9th Cir. citing 9th Cir. precedents with approval.

I would love to hear your factual basis for this, since it is completely at odds with my experience as a practitioner.
posted by shen1138 at 7:54 PM on December 7, 2009 [1 favorite]

The 9th circuit being cited a lot
posted by Kirklander at 10:23 PM on December 7, 2009 [1 favorite]

EmpressCallipygos, my understanding is that provided the distribution of funds is equitable (not necessarily exactly equal) and impartial, there aren't any problems if some of the groups happen to have a religious character.

And the 9th Cir. bit is a derail. Sorry I bought it up.
posted by valkyryn at 4:10 AM on December 8, 2009

I think it would be cool if the school recognized the group but then refused to grant diplomas to its members on the grounds that membership in discriminatory organizations is not consistent with their educational and ethical standards. Kinda like how I wish colleges could refuse to grant admission to students from schools/states where intelligent design or creationism are taught as legitimate alternatives to evolution, on the grounds of inherent academic inferiority.
posted by troybob at 5:39 AM on December 8, 2009

my understanding is that provided the distribution of funds is equitable (not necessarily exactly equal) and impartial, there aren't any problems if some of the groups happen to have a religious character.

That's what I thought. So while I can definitely sympathize with wanting to pull this group's funding, isn't the school kind of opening itself up for a lawsuit here, one which they could actually lose?...
posted by EmpressCallipygos at 6:15 AM on December 8, 2009

EmpressCallipgyos, yes. Which was kind of my point.

troybob, though you're probably joking, yours is exactly the kind of bigotry the First Amendment is designed to prevent.
posted by valkyryn at 7:13 AM on December 8, 2009

should we tolerate intolerant people?

Love the sinner, hate the sin.

litigators not in the 9th Cir. rarely use 9th Cir. cases

Dude, not cool. You owe me a new, not-coffee-spewed monitor.

The Supreme Court has taken review in a case in which a law school barred a Christian legal group which apparently excludes non-Christian and LGBT students.

My prediction:
Stevens writing for the Court, joined by Breyer, Ginsburg, Sotomayor, and maybe Kennedy. Kennedy concurring in the judgment, distinguishing from Boy Scouts of America v. Dale, 530 U.S. 640 (2000). Scalia dissenting, in which Roberts, Alito, and Thomas join, citing the 7th Circuit case and BSA v. Dale.
-OR-
Kennedy writing for the majority, distinguishing from BSA v. Dale, joined by Stevens, Breyer, Ginsburg, and Sotomayor. Scalia dissenting, in which Roberts, Alito, and Thomas join, citing the 7th Circuit case and BSA v. Dale.

And now I'm leaving the thread before it gets too heated and I waste the whole day in fruitless argument.
posted by jock@law at 8:17 AM on December 8, 2009

Actually, I wanted to link to this excellent analysis from Eugene Volokh, a law professor at UCLA
posted by jock@law at 8:56 AM on December 8, 2009

Actually, I wanted to link to this excellent analysis from Eugene Volokh, a law professor at UCLA

Some of the comments there seem to assume that you can't have a Hispanic student's union or a Christian organization without discriminatory bylaws. In practice however, I've generally found that while student organizations tend to have open membership policies, people naturally self-segregate, because unless you are really interested in Hispanic or Christian issues, those groups don't have much to offer. Student organizations with more stringent membership requirements leased or owned space off-campus.

I generally agree with the analysis that campuses are obligated to tolerate such groups, but they are not obligated to subsidize them with meeting space or grants from either state taxes or student fees.
posted by KirkJobSluder at 9:38 AM on December 8, 2009 [1 favorite]

You would think so, but at Hastings the La Raza group, for example, has a whole lot of non-Hispanics involved with it.
posted by Kirklander at 10:49 AM on December 8, 2009

Should public funds and student funds be used for a club which insists its members observe Sharia Law?
posted by mikelieman at 10:58 AM on December 8, 2009

because unless you are really interested in Hispanic or Christian issues, those groups don't have much to offer.

This was not true in my college experience. The various student groups, whether religious or cultural/ethnic or centered on common interests, all hosted open-to-everyone events, from dance recitals to mini-film festivals to lectures to powwows to concerts. They can offer a lot, and a lot of them do.
posted by rtha at 11:01 AM on December 8, 2009 [1 favorite]

Sure, most groups hold open-to-everyone events. But there are a lot of events that are of pretty esoteric interest. Everyone loves the drag shows and dances, but panel discussions, debates, and coffee hours tend to be of less general interest.
posted by KirkJobSluder at 11:16 AM on December 8, 2009

I don't know, Kirk. I suppose it depends on what else there is to do - my school was small and rural, so even less exciting-sounding events tended to be well-populated since there wasn't always a lot else going on to distract you from that paper that's due soon.

I mean, if the Future Chemists Of America (I made that up) hosts a roundtable that attracts an audience in the single digits, should that mean their funding should get pulled, or their school sponsorship be revoked?
posted by rtha at 11:53 AM on December 8, 2009

At least at my alma mater, school funding for student organizations was proportional to "membership", with membership basically being whoever signed up for the email distribution list. It would lead to big drives at the end of every year when the group had to file an updated charter and application for recognition.
posted by muddgirl at 12:08 PM on December 8, 2009

Well, it wasn't directly proportional. Organizations also had to submit a budget detailing what they'd use the funds for in general, and the total amount was based on previous years and changes in total membership, among other things.
posted by muddgirl at 12:10 PM on December 8, 2009

But I attended a private college, which presumably could have denied an organization on any grounds it liked, since the first amendment doesn't apply, right?
posted by muddgirl at 12:11 PM on December 8, 2009

rtha: I mean, if the Future Chemists Of America (I made that up) hosts a roundtable that attracts an audience in the single digits, should that mean their funding should get pulled, or their school sponsorship be revoked?

I don't understand this question, or the basis for it.

But to use this example, professional organizations for chemists on campus don't need to have a closed membership policy, because most people are not interested in panel discussions about chemistry careers in the non-profit sector, or email spam regarding changes in departmental thesis policy. The content of my professional organization listserv bored the heck out of me, and I knew what they were talking about.

An assumption expressed in the comments to the post linked by jock@law is that Christian organizations can only maintain their identity as organizations if they restrict membership. The counter-point to that is many churches have open-door policies in regards to visitors, but have no problems maintaining their identity because much of what goes on inside a church just isn't very interesting except to members or the intensely curious.

When an organization's membership policy directly conflicts with state and/or federal anti-discrimination law, then I don't think a state school has an obligation to fund or support that organization. Like the BSA, the Christian Legal Society is obligated to look for funding from sources that share its values.
posted by KirkJobSluder at 12:37 PM on December 8, 2009

Ah, but I wasn't speaking (directly) to membership policies and whether or not they're open to everyone. The Future Chemists was a bad (made-up) example in that respect. I was trying to address your statement In practice however, I've generally found that while student organizations tend to have open membership policies, people naturally self-segregate, because unless you are really interested in Hispanic or Christian issues, those groups don't have much to offer and the implication that if a group may only appeal to a small number of people, it shouldn't have official recognition. I may have misread you, and if so I apologize. (And, of course, I wanted to address the notion that a group with a seemingly narrow focus will only appeal to a small number of people, which isn't always true in my experience.)

FWIW, the science-based students orgs on my campus were not professional organizations at all, and you didn't have to major in a science to join them, just be interested.
posted by rtha at 1:36 PM on December 8, 2009

rtha: Yes, you misread me.
posted by KirkJobSluder at 2:11 PM on December 8, 2009 [1 favorite]

Okay, good! (I mean, I'd rather misread you and find out I was misreadng you than go around thinking "WTF, KirkJobSluder?"
posted by rtha at 2:23 PM on December 8, 2009

Oh, and thanks for the apology. Sorry, rough day today, I apologize for the confusion.
posted by KirkJobSluder at 2:24 PM on December 8, 2009

No worries. Have some schmoopy - it's particularly schmoopful today. Mmmm....schmoopy.
posted by rtha at 2:55 PM on December 8, 2009