Do university rules discriminate against student faith groups?

A group of Christian students is asking the US Supreme Court to strike down as unconstitutional a school anti-discrimination policy that forces them to accept as voting members and potential leaders classmates who do not share their core religious beliefs.

A lawyer for the Christian Legal Society is set to argue on Monday that the school’s policy violates the Christian students’ First Amendment right to freely associate with like-minded individuals who share a common faith.

At issue is a non-discrimination policy that applies to all student groups at the University of California Hastings College of the Law in San Francisco. The policy bars student groups from discrimination based on race, color, religion, national origin, ancestry, disability, age, sex, or sexual orientation.

Hastings officials refused to recognize the Christian Legal Society (CLS) as a registered student organization because they said the group’s faith-based by-laws reflected intent to discriminate against gay and lesbian students and others who do not embrace the group’s religious beliefs. Under the school policy, student groups must agree to accept any student as a voting member.

Does the Christian group discriminate against gay students?

The CLS said that gay and lesbian students and others of different beliefs were welcome to attend CLS meetings and events, but that unless they signed a pledge acknowledging that they shared the precise Christian beliefs of the group they would be excluded from voting, holding leadership positions, and leading Bible study discussions.

Among other obligations, CLS members must pledge that they will not engage in a “sexually immoral lifestyle,” including “all acts of sexual conduct outside God’s design for marriage between one man and one woman.” Failure to live by this standard disqualifies an individual from becoming a voting CLS member.

School officials view the pledge as discrimination based on religion and sexual orientation.

CLS members view it as a pillar of their faith.

“To forbid groups to form on the basis of shared beliefs is to forbid freedom of association at its most fundamental level,” writes Stanford Law Professor Michael McConnell in his brief on behalf of the CLS.

'Policy targets religious groups'

“The policy targets solely those groups whose beliefs are based on ‘religion’ or that disapprove of a particular kind of sexual behavior,” Mr. McConnell says. “Groups committed to other viewpoints are free to select their leaders from among members who support their purposes and core beliefs.”

McConnell says the non-discrimination policy is “explicitly viewpoint discriminatory.” It only applies to religious beliefs, leaving all other groups with political, social, or cultural ideals or beliefs free to select like-minded members and leaders.

Hastings officials reject charges that their non-discrimination policy is itself discriminatory. They say the policy requires all student groups to be open to all students – period.

Under this policy, school officials say, a Republican would have a right to become a voting member of the Democratic Club; the Clara Foltz Feminist Association must accept male chauvinists as voting members and potential leaders; and the antiabortion student group could not exclude students who support abortion rights.

Lawyers for the college say the school’s non-discrimination policy does not violate the free speech or association rights of religious students.

“Every student group at Hastings has a reasonable choice: it may either abide by the open-membership policy and qualify for the modest funding and benefits that go along with school recognition, or forgo recognition and do as it wishes,” writes Gregory Garre, in his brief on behalf of the law school. “No group is forced to do anything.”

There are roughly 60 registered student organizations at Hastings. The groups are eligible to receive school funding from student activity fees, meet in school facilities, and use school communications systems to publicize meetings and activities. The CLS is the only student group ever denied access to those benefits.

University: open membership fosters discourse

The Hastings brief says the open membership policy is aimed at fostering discourse, cooperation, and learning while exposing students to different views and discussions within groups.

The Hastings policy was upheld by a federal judge who ruled the school had not violated the Christian students’ right to free speech or free association. The judge said the school merely placed conditions on a groups’ obtaining official status as a registered student organization. The CLS was free to choose whether to accept the Hastings funding and other benefits while complying with the non-discrimination policy, or reject it and organize the group as it wished without official help or backing, the judge said.

The Ninth US Circuit Court of Appeals affirmed the judge’s ruling.

In his brief, McConnell approaches the free speech and free association issues from the perspective of the Christian students, rather than Hastings administrators.

“Under the First Amendment…, Republican student groups have the right to exclude Democratic leaders, feminist student groups have the right to exclude male chauvinists, and religious groups such as CLS have the right to exclude leaders who reject their core values,” he writes.

McConnell says the school maintains two non-discrimination policies – a written policy banning discrimination on the basis of one’s faith, and a verbal policy banning all discrimination by any group.

He says that the school is selectively enforcing the verbal “all-comers” policy, allowing secular groups to limit membership to like-minded students while accusing like-minded Christian students of discrimination.

'They must comply with the First Amendment'

“Public colleges are not constitutionally obligated to open their facilities for speech. But all of them do so,” McConnell writes. “And having done so, they must comply with the First Amendment.”

Washington lawyer Paul Smith filed a brief in the case on behalf of a Hastings student group called Hastings Outlaw. The group formed in part to fight homophobia, transphobia, racism, and sexism. The group was granted status to intervene as a party in the case.

Hastings has a legitimate interest in allocating its limited resources only to student groups that are open and accessible to all students, Mr. Smith writes. He says the policy is viewpoint neutral and does not suppress CLS’s ability to spread is message or associate with like-minded students.

“As a group of students organized for religious purposes, CLS remains free to exercise its expressive association rights both on the law school campus and in the community at large,” Smith says. “But CLS has no right to demand a subsidy from the law school while failing to abide by the requirement that all [registered student organizations] must be open to all students.”

The case is Christian Legal Society v. Martinez. A decision is expected by late June.