Christian Group Denied Recognition

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

What's perverse about Kennedy's statement is his conflation of loyalty oaths (or their equivalents) required by private associations with loyalty oaths required by the state. CLS, a conservative religious organization, requires prospective members to sign a "Statement of Faith," which includes an affirmation of CLS's religious view of sexual conduct. That requirement is an exercise, not a violation, of First Amendment associational rights. The right to associate obviously includes a right to discriminate -- to choose the people with whom you wish to associate.

Private associations, however, do not have any inherent rights to public support, and the Court stressed that CLS was not denied the right to exist or organize on campus; it was the denied the benefits of official recognition. The trouble is that CLS appears to have been denied recognition and benefits because state university officials disapproved of its ideological opposition to homosexuality: If the states chooses to extend benefits to private groups, it can't discriminate between them on the basis of their viewpoints; CLS appears to have been the victim of viewpoint discrimination, (or political correctness).

Or was it? The majority and dissent in CLS v Hastings present sharply divergent accounts of the facts underlying this complicated case. (The clash between CLS's associational rights and campus non-discrimination policies dates back about ten years; I've analyzed it previously here).

According to the majority (authored by Justice Ginsburg,) Hastings College of Law (part of California's state university system) denied CLS recognition on the basis of a "viewpoint neutral" policy requiring all official campus groups to admit "all comers," regardless of ideology or commitment to the group's mission and ideals. Pursuant to this policy, the majority observed, a democratic club seeking recognition would be required to admit republicans, a pro-choice club would be required to admit anti-abortion advocates, a PETA chapter would be required to admit fur coat devotees. The dissent would have struck down this policy for interfering with private associational rights, (as I would), but according to Justice Alito's angry dissent, it was not, in fact, the policy applied to CLS.

According to Alito, the record demonstrated that the "admit all comers" policy was a sham, belatedly enunciated in 2005, after CLS sued the school for denying it recognition on the basis of its ideology -- pursuant to a different, non-discrimination policy, used perversely to discriminate against CLS. Prior to 2005, "Hastings routinely registered student groups with bylaws limiting membership and leadership positions to those who agreed with the groups' viewpoints." An official La Raza chapter limited voting membership to "students of Raza background." A pro-life group limited voting membership to pro-lifers. In other words, while La Raza was allowed to discriminate on the basis of ethnicity, CLS was denied recognition for discriminating on the basis of religion: "CLS (is) "the only student groups whose application has ever been rejected."

The effects of that rejection were substantial, the dissent asserts; the majority disagrees, declaring them minimal. The majority asserts that CLS was offered the use of school facilities, even though it had not been officially recognized. The dissent claims that CLS was not even granted permission to set up a table on a school patio "which could hardly have interfered with any other use of the law school's premises or cost the school any money." The majority stresses that while private groups have a right to discriminate, they have no right to state subsidies; the dissent stresses that state subsidies involved in this case were marginal, (as well as discriminatory).

If Alito's account of the facts is accurate, then the Court has ruled on a case not exactly before it, (and arguably in bad faith), subordinating fundamental First Amendment rights to a particular vision of equality. It's a vision I share and would impose on employers and other commercial entities pursuant to civil rights laws -- while opposing its official imposition on private, non-commercial associations. Atheist groups that require prospective members to sign statements disavowing belief in a deity, or religious groups requiring members to affirm particular articles of faith should not lose their not for profit tax status because they engage in religious discrimination.

What are the implications of the Court's ruling in CLS v Hastings? I join Justice Alito in hoping that "this decision will turn out to be an aberration." As I've written previously, high school and college administrators who deny Christian groups official recognition engage in the discriminatory conduct they condemn - excluding people who will not pledge allegiance to official views. The difference is that private religious groups have essential First Amendment rights to exclude heretics; public officials have an obligation to protect them.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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