Who's Free to Discriminate?

In a case that involves dozens of religious groups as well as gay- and civil-rights organizations, the Supreme Court is slated to hear oral arguments in Christian Legal Society v. Martinez on Monday. The justices will consider whether UC Hastings College of Law – a public institution – can deny funding to a campus religious group for violating the school's nondiscrimination policy. The Christian Legal Society, which requires its members to sign a pledge disavowing "fornication, adultery, and homosexual conduct," sued Hastings for refusing to recognize the student organization because it discriminates against gays.

The unusually large number of amicus briefs in the case – 38 – is a testament to its importance. The Court's decision could have widespread implications for how religious organizations are funded by government institutions. It is also seen as a test for how the Roberts court handles church-state conflicts. For liberals, CLS v. Martinez is about discrimination and tolerance at public universities. But religious conservatives claim their very religious liberty is at stake. This has become a familiar trope: For a movement bent on tearing down the wall between church and state, "religious liberty" no longer simply entails the right to discriminate against gays – it also requires a government endorsement.

The incident at Hastings is almost identical to one that took place at Cornell University last year in which a university-funded Christian group, Chi Alpha, kicked out one of its leaders when he came out as gay. The crucial difference between the two incidents, however, is that, unlike Cornell, Hastings is a public institution funded by taxpayer money. A private school can set limits on the types of speech it allows, but public schools have to be "viewpoint neutral." Lawyers and supporters of CLS have gone back and forth about what that means. In court papers, they originally claimed that being "viewpoint neutral" required student groups to accept members regardless of their political views or identities but have since argued that the policy specifically discriminates against groups that do not approve of homosexuality.

However, the policy is not intended to privilege gay, black, or disabled students but to ensure that all students have access to public resources. Hastings argues that, like all other campus organizations, CLS had the choice of complying with the policy or foregoing university sponsorship. Now, using religion as a cover, CLS is seeking an exception.

Lawyers for Hastings have also pointed out that only a few hundred dollars and access to university bulletin boards and e-mail lists are at stake – not the right for the group to exist or meet on campus.

In court, CLS claims that allowing gays to join would compromise its ability to "control its message." At a panel discussion hosted by the American Constitution Society on April 7, James Bopp, who filed an amicus brief in the case for the conservative James Madison Center, claimed that similar organizations that restrict membership – like black student groups – are not excluded from university funding.

Conservatives are fond of these types of comparisons, but they ignore the way student groups actually work. In fact, the black student group at Hastings does not prohibit white students from joining; it just so happens that most of its members are black. Despite religious conservatives' fears of sabotage (what if – gasp! – an atheist were to join?), CLS' ranks would not likely be overrun by gays or atheists even if the group doesn't make its members sign a "not gay" pledge. Students join groups who share their interests, and gay students would probably steer clear of an organization whose members hold anti-gay views. More than anything, CLS' membership contract seems borne out of anti-gay sentiment rather than concern that the group's identity will be compromised.

Like other organizations that try to exclude gays without seeming overtly prejudiced, CLS supporters argue that the group's policy targets behavior as opposed to sexual orientation. This is a specious distinction – and one that the Supreme Court is likely to reject. In Lawrence v. Texas the justices ruled that sodomy laws not only targeted behavior but had "more far-reaching consequences, touching upon the most private human conduct"; their essential effect, the Court said, was to "control … personal relationship[s]."

As the Court recognized in Lawrence, sexual orientation and conduct are intimately intertwined. CLS' bans on "fornication" and "adultery" might be weird – not to mention difficult to enforce -- but they are fundamentally different from the ban on all "homosexual conduct." Whereas the group's policy proscribes an acceptable way for straight people to express their sexuality, it shuts out gay people from expressing their sexuality in any way. Cliff Sloan, a partner at Skadden, Arps, Slate, Meagher & Flom who has been involved in the CLS litigation, put it eloquently: "Making admission of your inferiority a condition of membership – that's discrimination."

If the Court decides CLS has a right to university recognition, other religious organizations that violate nondiscrimination laws or policies may be eligible for government funding – including religious groups that discriminate on the basis of race or gender.

The irony is that CLS supporters fail to recognize that the nondiscrimination policy also protects Christian students; no gay student group would be allowed to make its members sign a pledge forsaking Christianity. In their rush to fashion themselves as victims, religious conservatives tend to forget that the separation of church and state in America emerged to protect religion from government – not the other way around. But perhaps this blindness is simply endemic to those who, confronted with actual persecution and suffering around the world, choose to focus on the minute details of people's sexual lives.

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