The Christian Legal Society and the University of California

As reported in my Center for Inquiry (CFI) newsletter, the Christian Legal Society (CLS) at the University of California Hastings Law School sued the university because the school refused to fund the CLS due to a claimed violation of the school’s non-discrimination policy.

Basically the CLS wanted to be able to exclude students from joining based upon religion and sexual orientation. Under school policy this means they cannot get funding. The CLS claimed this violated their rights of association, free speech and free exercise of religion.

Note that under the non-discrimination policy, the school claimed that Republicans can’t be barred from joining Democratic clubs and Democrats can’t be barred from joining Republican clubs if those organizations desire university funding. This was described as an “accept all comers” policy.

However, Christians think they’re entitled to special privileges.

In 2009, the U.S. Court of Appeals for the Ninth Circuit ruled unanimously against the CLS because the school supposedly, under its “accept all comers” policy, prohibited every student group, whether religious or secular, from excluding students that disagreed with the group's mission. Therefore a conservative Christian group cannot demand funds while excluding gay, non-Christian, or non-conservative Christian students. The CLS appealed, claiming that it had a constitutional right to receive state funding while discriminating against students on the basis of religion and sexual orientation. A right not enjoyed by any secular organization.

The Supreme Court upheld the decision of the Appellate Court. This is a good thing obviously. The bad thing is that it was only a 5-4 decision.

Justices Roberts, Scalia, Alito and Thomas dissented.

I found the basis of the dissent rather interesting. Basically it questioned whether the “accept all comers” policy really existed prior to the CLS lawsuit or whether it was an interpretation added after the fact.

This struck me as sort of a nit. The non-discrimination policy clearly states that registered student organizations cannot discriminate based upon “race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.”

The CLS wanted to discriminate based upon both religion and sexual orientation so it’s not clear to me why whether the “accept all comers” policy was really always in place or whether it was a relatively new interpretation mattered one iota.

The dissent also pooh-poohed the emphasis on funding when much of what the CLS was denied as a non-registered organization didn’t involve money as much as access. I find this a nit also. “Funding” doesn’t mean just money; it means support in general and this includes access and ready clearance for group activities.

The fact of the matter is that the dissenting four suspect that the university just didn’t like the CLS and what the CLS stood for. I don’t blame them for not liking the CLS but does that mean the group should be silenced?

Granted, Freedom of Speech means defending the speech of people you may not like but it doesn’t mean paying them, either through actual funds or in facilitation, to make it easier for them to make that speech.

The court was right and the four dissenters are just looking for excuses to extend more special privileges to Christians. At least this time Justice Kennedy didn’t get suckered in.