Posts Tagged ‘CLS vs. Martinez’

California’s Free Speech Schizophrenia

April 7, 2010

Spring is in the air in California.  While the Sierra Nevada gets a late spring snowstorm, the California golden poppies have opened along I-5.  Spring is a time of transition from one season to the next, and also a time when high school seniors eagerly await that wonderful transition from high school drama to college coolness.  At this time of year particularly, seniors await acceptance letters from their favorite college or university.  But once the letters arrive, how is a high school senior going to choose his or her school?  If the decision has anything to do with free speech policies on campus, it may be wrought with confusion, especially for students considering California schools. 

California’s public colleges and universities, it seems, have no institutional respect for freedom of speech on campus.   A series of contradictory policy decisions have made the Golden State’s higher education system a mess when it comes to freedom of speech. 

Take last week, for example.  On Friday, FIRE’s Samantha Harris wrote about the great news at San Francisco State University.  SFSU repealed its illegal speech zone policy and now allows literature distribution in the outdoor areas of campus so long as pedestrian traffic is not impeded.  Even better, SFSU removed the official free speech zones so that students can now engage in speech in most outdoor areas.  But down the street, the University of California Hastings College of the Law continues to enforce its “nondiscrimination” policy against the Christian Legal Society, banning it from campus. 

On Tuesday, I wrote that the University of California system is considering a new speech code that will give administrators great ability to censor disfavored student speech.  This comes on the heels of the UC system amending its harassment policy to protect student speech.  But at the same time, the Los Angeles Community College District, the largest community college district in the United States, fights to keep an even more speech-restrictive harassment policy. 

To top it off, we have good information that several California State University system campuses still maintain an unconstitutional speech code that was struck down and amended two years ago. 

For a state that supposedly accords broad protection to student speech and that has one of the best public higher education systems in the country, California’s public colleges and universities remain behind the curve on free speech issues.  The Golden State can do better.

CLS v. Martinez: A Response to Professor Hamilton

April 7, 2010

There are so many things wrong with Marci Hamilton’s Findlaw column about Christian Legal Society v. Martinez that it’s hard to know where to start.  So I’ll start at the beginning and work my way through, hitting the most serious deficiencies in the column.

The column states that this case will cause the Supreme Court to “wade into the culture wars morass.”  To be sure, this case arises out of a leftwing university’s attack on a theologically orthodox religious group.  However, the legal principles involved transcend the particular positions taken by the contending sides on religious and moral questions.  At stake is the freedom of all student groups to choose leaders who share their respective missions, free from undue government pressure.  For decades, counter-cultural groups have invoked the First Amendment to protect themselves from hostile university administrators.  In the past, groups on the Left resisted officials they perceived to be conservative.  Now the roles are reversed.  Just as the courts vindicated the Constitution in those cases, they should do so now as well.  There is no need for the Court to “choose sides” in the culture war.  It simply needs to uphold the Constitution.

Professor Hamilton declares that “no one who engages in sex that occurs outside of marriage between a man and a woman may be an officer or prayer leader.”  This is simply incorrect.  CLS stated as follows on pages 35-36 in its opening brief filed in the Supreme Court

In accordance with traditional Christian teaching, the CLS chapter does not exclude all those who engage in what they regard as immoral conduct, sexual or otherwise: The CLS membership policy excludes only those who do so “unrepentantly,” which is religion-speak for those who do not regard the conduct as wrong or sinful and resolve to cease acting in that manner.  Thus, far from excluding people on the basis of orientation, the CLS Statement of Faith excludes them on the basis of a conjunction of conduct and the belief that the conduct is not wrong.

Given that the remainder of Professor Hamilton’s column reveals that she read CLS’s opening brief, this misstatement of CLS’s position regarding human sexuality is surprising.  Moreover, this approach to sexuality (i.e., differentiating among the experience of same-sex sexual attraction, the participation in same-sex sexual intimacy, and the persistent and unrepentant participation in such conduct) is not unique to CLS; many religious groups (and social scientists) do likewise.  To suggest that groups like CLS embrace and impose more categorical “rules” is misleading, and in a way that does not put CLS in a good light.  Nuances matter when it comes to people, and they matter when it comes to language and the law.

The very next sentence of Professor Hamilton’s column characterizes CLS’s policies this way:  “In other words, homosexuals need not apply.”  This is, at best, grossly misleading.  Individuals who experience same-sex sexual attraction are eligible for membership and leadership in CLS.  To the extent the word “homosexuals” is understood to include such persons, Professor Hamilton’s assertion that “homosexuals need not apply” is false.  To the extent that the word “homosexuals” includes people who do not engage unrepentantly in extramarital sexual behavior, Professor Hamilton’s characterization of CLS’s policies is also false.

Next Professor Hamilton states that “[b]ecause CLS discriminates against homosexuals, the Law School refused to recognize it as an official student group.”  This statement, ambiguous itself, ignores the other reason Hastings gave for denying CLS the valuable benefits of registered student organization status:  the fact that it draws its leaders and voting members from among those who voluntarily sign its statement of faith, something Hastings deemed “religious discrimination.”  This case is not only about the emotionally and culturally explosive conflict over human sexual behavior, but also about the freedom of religious groups to consider religious belief (e.g., whether the Bible is inspired, whether Jesus is divine) in choosing their leaders.

Professor Hamilton next argues that “this case hardly seems worth the candle.”  I respectfully disagree.  First, the column misstates the identity and value of the benefits Hastings confers on every group but CLS.  It is undisputed that Hastings has denied CLS access to the customary means by which student organizations communicate with the student body, such as the annual Student Organizations Fair, the law school newsletter, bulletin boards, mailboxes, or weekly email announcements of activities.  Although Hastings has offered to allow the CLS chapter to use meeting rooms as a matter of sufferance during the pendency of the litigation, Hastings has reserved the right to charge CLS a fee and to revoke the privilege of meeting at any time.

Professor Hamilton’s suggestion that these benefits are not valuable is hard to square with their existence and their widespread use by registered student organizations.  If these benefits were not valuable, why would Hastings go to the trouble and expense of creating them and conferring them upon student groups?  Why would student groups regularly use them to pursue their diverse missions?  I’ve spoken at a number of law schools this semester, and the leaders of various student groups have unanimously confirmed the importance of the various benefits universities provide to their groups.

The denial of such benefits is constitutionally significant.  Healy v. James, Widmar v. Vincent, Rosenberger v. Rector of the University of Virginia, and numerous lower court decisions unambiguously hold that the denial of such benefits is a constitutionally cognizable injury.  The fact that CLS is not utterly without alternative (but undeniably less effective) means of pursuing its mission and communicating its message is both legally irrelevant and factually unpersuasive.  It is hard to imagine that one would so easily dismiss the harm suffered by a group if a law school withheld benefits from the group on the basis of some reason deemed less defensible, e.g., because the group included primarily African-American students.  The bottom line is that it is simply false to suggest, as Professor Hamilton does, that this case is about CLS’s desire for the Hastings “logo and imprimatur.”

Moreover, Professor Hamilton does not consider the additional way that the courts have assessed the burdens that governments impose upon religious organizations through the application of religion and “sexual orientation” nondiscrimination rules.  In addition to examining the benefits denied, courts assess the effect of complying with the rule in question.  In this case, there can be little doubt that forcing CLS to have an atheist lead its Bible studies would undermine its ability to formulate and communicate its preferred message.  Similarly, CLS would not be able to effectively convey its message regarding sexual morality if it were unable to remove a hypothetical Mark Sanford, Tiger Woods, or Eliot Spitzer from a leadership post.

Next, Professor Hamilton asserts that “this case is simply one more in a growing number of disputes in which religious organizations treat government funds as if they were entitlements.”  Religious groups, like all others, are “entitled” to the treatment that the Constitution mandates.  And it is not wrong for religious groups to take action to vindicate their constitutionally protected rights.  Professor Hamilton contends that such groups seek equal treatment “despite the Establishment Clause, the Constitution’s separation of church and state,” apparently suggesting that Hastings would violate that provision of the First Amendment by giving CLS access to its speech forum.  But the Establishment Clause plainly does not require Hastings to withhold registered student organization status from CLS.  The Court’s decisions in Widmar and Rosenberger settled that question.

Professor Hamilton believes that it is somehow inappropriate – even “irrational” – for religious groups like CLS to seek access to speech forums “from government entities that have staked out positions that are diametrically opposed to their core religious beliefs.”  I don’t see why this is inappropriate.  CLS wants to pursue its mission, and access to meeting space, funding, and communications mechanisms provided by the law school will help it do so.  Its receipt of the benefits of recognition is entirely consistent with Hastings’ stated purpose of encouraging a robust debate on a virtually unlimited set of topics.  CLS’s use of meeting space, funding, and communications mechanisms does not cause it to compromise its integrity in any way.  In any event, it is one thing for a government entity to “stake out a position” with which a religious group disagrees; it is quite another for the government to use its power to pressure a religious group to conform its perspective to that of the government.  That is precisely what Hastings is doing, and this goes to the core of the Free Speech Clause.

Professor Hamilton next contends that CLS’s argument that Hastings violated its Free Speech Clause rights “is a real stretch.”  Again, I disagree.  Professor Hamilton fails to address the significance of the Supreme Court’s decision in Boy Scouts of America v. Dale, in which the Court held that the First Amendment forbids the application of a “sexual orientation” non-discrimination law to an organization that considers homosexual conduct immoral.  In my opinion, her attempts to distinguish Rumsfeld v. FAIR and Rosenberger are unpersuasive.  In Rumsfeld, the law schools lost because military recruiters would not become “members” of the law schools, undermining their claim that hosting the recruiters would substantially undermine their ability to communicate their position in favor of homosexual activism.  The Court indicated that if the government were conditioning the receipt of a benefit upon a group’s acceptance of members who oppose the group’s mission, the Constitution would be violated.  Hastings will not recognize CLS unless it allows those who reject its religious commitments not only to become “members,” but also to become officers.  Accordingly, the Rumsfeld decision supports CLS’s position.

Professor Hamilton gets one thing right:  she observes that Hastings is “openly opposed” to CLS’s beliefs.  To be sure, this observation is the starting point for her somewhat strange assertion that it is “irrational” for CLS to seek access to speech forum at a public law school that is committed to punishing CLS because of its disagreement with the prevailing orthodoxy.  In any event, her observation about Hastings’ opposition to CLS’s beliefs gets to the heart of this case.  It is not about Hastings preventing an invidious discriminator from denying protected minorities some valuable benefit.  Instead, it is about Hastings attempting to use its considerable power to pressure a dissenting group to change its counter-cultural message.  Under Professor Hamilton’s logic, it would be “rational” for theologically orthodox Christian students to simply withdraw from Hastings entirely on the ground that the school opposes their viewpoint.  Is this really the result a public law school subject to the First Amendment should desire?

Professor Hamilton asks whether CLS, in order to be “fully satisfied,” needs the law school to entirely eliminate “sexual orientation” from its non-discrimination policy and wonders whether its civil rights action is just “stage one” in some larger “campaign” at the school.  First, it bears noting that Hastings has declared that it forbids any group from invoking any reason to deny any student a membership or leadership position.  CLS’s lawsuit challenges this severe interference with the right of every group to formulate and communicate its own message.  Second, neither CLS national nor any student chapter has mounted any sort of larger “campaign.”  On numerous campuses, CLS chapters were able to persuade administrators to respect their religious freedom.  Once that happened, they did not take any additional actions regarding non-discrimination policies.  They simply went about the business of pursuing their mission.  Simply put, CLS does not object to law schools’ recognition of Outlaw or any other group for that matter, but Outlaw objects to CLS.

Professor Hamilton claims that CLS “misstated the Law School’s policy:  That policy states that no organization is permitted to put its – or its members’ – discriminatory beliefs into action.”  I am afraid that it is Professor Hamilton who misunderstands the law school’s policy – and the nature of CLS’s argument.  At the outset, it is worth noting that Hastings recognized a religious student group with a statement of faith requirement prior to 2003 as well as a group (La Raza) whose by-laws mandated race and/or national origin discrimination in 2004.  When Hastings withheld recognition from CLS in 2004, it invoked the religion and “sexual orientation” provisions of its written non-discrimination policy.  CLS correctly observed that Hastings allowed other groups to organize around secular ideas – to exclude individuals who rejected their core principles.  For example, it observed that the Hastings Democratic Caucus reserved the right to deny leadership positions to individuals who opposed Democratic Party principles.  CLS correctly argued that this constituted discrimination on the basis of viewpoint – something presumptively unconstitutional.  In an apparent acknowledgement of the power of this claim, Hastings subsequently claimed that no group could exclude any person for any reason. Of course, this shift simply magnified the scope and depth of Hastings’ violation of the right of expressive association.

Professor Hamilton asserts that CLS’s argument “rests heavily on the assumption that no Republican would ever want to join a Democratic student group, and vice-versa, on the apparent assumption that those organizations must always be politically pure.”  This assertion reflects a serious misunderstanding of CLS’s argument.  As noted above, CLS argued that it was viewpoint discriminatory for Hastings to allow political groups the freedom to deny leadership to individuals who rejected the group’s political views while denying religious groups the freedom to deny leadership to individuals who rejected the group’s religious views.  The power of that argument does not rest upon any assertion that a Republican would never want to join a Democratic club, or on the assertion that there would never be a circumstance in which a Democratic club might choose to allow a registered Republican to serve as a leader or member. The argument instead rests upon the undeniable observation that Hastings acknowledged the freedom of political groups while denying the freedom of religious groups.

Professor Hamilton concludes her column by arguing that CLS’s pursuit of equal treatment contradicts what she characterizes as the traditional “Republican Party” view that religious organizations should not accept government benefits.  CLS is not the Republican Party and is not a Republican group.  As such, it is unconcerned with whether its effort to vindicate its constitutional rights is consistent with what Professor Hamilton characterizes as Republican Party principles.  Second, I acknowledge that one could argue whether a public university should extract activities fees from its students in order to support student groups.  However, even if one opposes such a system, it is not inconsistent to argue that if such a system exists, it should be administered fairly.  At Hastings, it has not been administered fairly, and that is what CLS has challenged.

Note:  This column was submitted to FindLaw Writ, but it did not agree to publish it.

Right to Belong: Does the Christian Legal Society have the right to exist?

March 30, 2010

Reblogged from abajournal.com: Supreme Court Report: By David L. Hudson, Jr

Right to Belong: Christian Group says it does; California law school says it doesn’t.

“Law professor Erwin Chemerinsky is monitoring the case of Christian Legal Society v. Martinez with a keen eye. One reason is substantive: The case features a clash between the rights of schools to enforce their nondiscrimination policies and student religious groups’ rights of freedom of association. The U.S. Supreme Court is scheduled to hear arguments April 19.”

Click to read the rest of the article.

Preserving the Message of the Gospel

March 26, 2010

Does a desire to preserve the expressive message of a Christian student group conflict with Christ’s call for us to “make disciples of all nations”?  That is the basic question posed by a comment to Greg’s “First CLS, Then the Klan?” post:

As a Christian law student I wonder how we are suppose to reach other people if we keep them out of our groups? Did Jesus speak only to Jews? I don’t know how I am suppose to live like Jesus if I am to seperate [sic] myself from anything that doesn’t believe. Just like Jesus spoke to the Samaritan women and the “sinners” we need to create a space for people of different beliefs to feel comfortable and learn about Jesus without feeling ostracized. Why would we want a club where only chritians [sic] can meet? We should remember that Jesus came for the sick not the healthy.

I agree with the premise of this comment, which is that Jesus came to seek and save the lost.  (Luke 19:10.)  Jesus’ message is one of hope and grace, of showing people that they need to stop running from God and start running toward Him.  Christ’s message was not just for Jews, but also for Gentiles.  But Jesus’ purpose—or message of salvation—does not conflict with His commandment to take this message to “all nations.”

The lack of conflict is evident in who Christ selected to spread His message.  He did not select unrepentant sinners or even those who thought of themselves as the most righteous under the Law.  Rather, Christ selected apostles who believed in Him and his message of salvation.  Those who were unwilling to repent were not the leaders of the early Church.  What happened when some early members of the Church argued that in order to be a true Christian, you had to continue to uphold the old Law?  Paul opposed them and said that they were not preaching the “truth of the gospel.”  (Galatians 2:14.)  Paul and the other apostles maintained the message of Christ by ensuring that false brothers did not infiltrate their ranks.  This occurs throughout the New Testament.  One of the consistent warnings for the early Church from Paul and the other apostles was not to be misled by false teachers.  (See, e.g., Acts 20:28-31; 2 Corinthians 11:1-15; 1 Timothy 1; Titus 1:10-16; 2 Peter 2; 2 John; and Jude.)

In the same way today, many churches do not allow unbelieving people to serve as pastors, leaders or even members.  How could a Christian church remain faithful to Christ’s message if it were led by a non-Christian or one who claimed to be a Christian but adhered to false doctrine?  It would not; its Christian message would evaporate.  In fact, to carry out Christ’s message that we take the gospel to “all nations” our churches must remain faithful to Christ’s message of salvation.  For example, if a non-Christian were allowed to lead a church and preached that salvation comes through obedience to the law, then the church would not be preaching the “truth of the gospel,” which is salvation by faith alone.

This is true especially for a church or parachurch organizations and ministries, but is also true for other kinds of groups.  For example, should an avid hunter be allowed to lead an animal rights group?  And if the hunter was allowed, what would happen to the group’s message?  It is for this reason that our nation recognizes the importance of enabling groups of citizens to come together to express a particular message and the ability of those groups to ensure the integrity of their message by choosing members and leaders who believe in it.  We absolutely need to create a space for people to feel welcome in our churches and in our Christian groups, but that does not conflict with the desire of these groups to preserve their message.  The Christian Legal Society case is not about excluding non-Christians from participating in the group, it is about preserving the message of the group.  Indeed, the facts show that CLS welcomes all students to participate.  Thus, the constitutional right of freely associating with like-minded people who believe in the group’s message is not in conflict with Jesus’ message of taking the hope of the gospel to all nations.  Indeed, it assures our ability to do so.

Please leave a comment below or join the conversation on Facebook. http://www.facebook.com/SpeakUpU

First CLS, Then the Klan?

March 2, 2010

Today, Professor Marci Hamilton and I debated Christian Legal Society v. Martinez at Cardozo School of Law in New York City.  Professor Hamilton argued that the Supreme Court should not hold that Hastings College of the Law violated the Constitution by refusing to confer registered student organization status on its CLS chapter because the chapter draws its officers and voting members from among those who share its religious commitments.

Prof. Hamilton asserted that the “bottom line question” in this case is as follows:  if the Court orders Hastings to recognize CLS, will public law schools be required to recognize the Ku Klux Klan?

Although it is not difficult to imagine that a Justice might ask such a question during oral argument, I find it hard to agree that this question is the “bottom line” in the case.  The bottom line is whether Hastings violated the Constitution by pressuring a religious group to subordinate its religious character.

During the “equal access” debates in the 1980s, opponents argued that requiring public schools to give student Bible clubs access to meeting space would lead to the proliferation of Nazi, skinhead, and Klan groups on campus.  Over 25 years after the adoption of the federal Equal Access Act, we can safely say that these fears were utterly unfounded.  The notion that groups of racist law students are poised to seek official recognition from America’s public law schools, just waiting for the Supreme Court to rule in CLS’s favor, is frankly preposterous.

More fundamentally, there is an enormous distinction between an entity engaging in invidious race discrimination and religious organization requiring its leaders and members to share its religious views.  A synagogue that requires its rabbi to be Jewish is not like the Klan.  A mosque that requires its imam to be Muslim is not like the Klan.  And a CLS chapter that requires its Bible study leaders to be a Christian is not like the Klan.  Sometimes, unfortunately, it is necessary to say what ought to be self-evident.

Jewish Groups Split on CLS v. Martinez

February 21, 2010

JTA, which describes itself as “The Global News Service of the Jewish People,” has posted an article discussing the divergent choices various Jewish groups have made regarding Christian Legal Society v. Martinez.  As the article explains, some groups have filed “friend of the Court” briefs supporting CLS’s constitutional freedom to draw its officers and voting members from among those who share its religious commitments — both doctrinal and moral.  Others plan to file in support of the government or sit the case out.

The article features several remarkable statements by Deborah Lauter, the National Director of Civil Rights for the Anti-Defamation League.  First, she implicitly characterizes CLS as a group that is “opposed” to non-Christians and those who engage in extramarital sexual conduct.  It is profoundly unfair and misleading to characterize CLS’s statement of faith requirement as “opposition” to those who have different religious commitments.  The statement of faith expresses CLS’s core religious beliefs, positively articulating what brings its members together.  The idea that the founders and leaders of CLS started with some “opposition” to non-Christians and then wrote the statement of faith to express that alleged “opposition” is absurd.

Second, Ms. Lauter suggests that if CLS prevails, public universities will be rendered utterly unable to address actual invidious discrimination.  I continue to find it amusing that opponents of CLS’s position, finding themselves unable to mount a persuasive case against CLS itself, must resort to parades of hypothetical horribles.  Her remark reflects a conflation of real discrimination (invidiously taking irrelevant characteristics into account) and the means by which a bona fide religious group legitimately maintains its religious character over time.

Third, Ms. Lauter said that it is “antithetical to democracy” to allow religious groups that consider religion in their hiring decisions to participate in federally funded social service programs.  “Democracy” produced the 1996 welfare reform law, which acknowledged the right of such religious groups to participate in the provision of services to needy people with public money.  Large numbers of both Democrats and Republicans voted for this legislation, and a Democratic president (Bill Clinton) signed it.  Can one plausibly call their handiwork “antithetical to democracy”?  It appears as though “antithetical to democracy” means “stuff ADL doesn’t like.”

Hastings states that no group can deny voting membership and leadership to any student on any basis (not just on the basis of characteristics listed in Hastings’ Policy on Nondiscrimination, like race and religion).  Under such a policy, a student chapter of ADL would not be able to withhold voting membership or an officer position from an avowed anti-Semite.  Does ADL really believe that Hastings would not violate ADL’s constitutional rights by revoking its registered status under such circumstances?  Perhaps ADL is confident that Hastings would selectively enforce such a policy by, say, withholding registered student organization status from CLS while conferring such status on it.  That might not be an unreasonable assumption:  in 2004, Hastings conferred RSO status upon La Raza (“the race”) even though its bylaws expressly limited membership and leadership to those “of Raza background.”

CLS v. Martinez: A Debate at SMU Law

February 18, 2010

CLS v. Martinez Debate - ADF Attorney Greg Baylor, Professor Maureen Armour , Professor Linda Eads

Earlier this week, I participated in a debate regarding Christian Legal Society v. Martinez at Southern Methodist University’s Dedman School of Law in Dallas.  I argued that the U.S. Supreme Court should rule that Hastings College of the Law violated the Constitution when it refused to recognize its CLS chapter because the chapter draws its officers and voting members from among those who share its religious commitments.  SMU law professor Linda Eads energetically but graciously advocated a contrary result.

In my prepared remarks, I shared my belief that Hastings’ disagreement with CLS’s counter-cultural positions on religious doctrine and sexual morality was at least in part behind the school’s treatment of the CLS chapter.  Professor Eads essentially agreed with me, but then said something that truly surprised me – that Hastings should have the power to punish a counter-cultural group like CLS in order to promote “the culture it wants to foster.”

As I see it, a private educational institution, such a religious one, does have (and should have) the power to foster a certain kind of culture, free from the restraints the Constitution imposes upon government educational institutions.  But the First Amendment forbids the government from using its power to restrain the expressive activity of a group whose views contradict the government’s simply because of that disagreement.

My experience has been that many public university administrators fail to adequately grasp that the Constitution limits their power – something their  private school counterparts do not experience.  A greater understanding of this reality by America’s public colleges and universities would go a long way towards restoring freedom of speech on those campuses.

An Unjust Choice

February 10, 2010

As more and more campuses enforce discriminatory ‘nondiscrimination policies’, campus faith communities like Chi Alpha are forced to make an unjust choice:  either compromise our mission, values, and identity or lose the ability to meaningfully engage in campus life. This Supreme Court case will have lasting repercussions on students’ Constitutional rights.  Generations of university students will be impacted.

Joe Gavin- Chi Alpha Vermont

Chi Alpha National Ministries has been a force for the Gospel on universities throughout the United States and around the world since 1953. Its members are college-age men and women earnestly following Jesus. The name “Chi Alpha” is inspired by II Corinthians 5:20. “We are therefore Christ’s ambassadors, as though God were making His appeal through us. We implore you on Christ’s behalf, be reconciled to God.” Inspired by this verse, the ministry chose the designation “christou apostoloi,” meaning “Christ’s sent ones,” to represent its membership. The Greek letters Chi (X) and Alpha (A) are the initials of this phrase which should remind us that we should live to accomplish the commission Jesus gave us.

Chi Alpha campus leaders aspire to embody the mission of the organization.  Because of their uncompromising faith, they have dealt with the non-discrimination statement issue on campuses across America over and over again. Most recently at the University of Vermont.

The Vermont Chi Alpha chapter was denied recognition by the Student Government Association (SGA) for the second time last year. The student chairperson denied Chi Alpha recognition because its constitution requires student leaders to be Christians and live according to Biblical ethics. The committee decided that the group was therefore “discriminating” on the basis of religion, a violation of the school’s nondiscrimination policy.

Failure to obtain official recognition constitutes a heavy penalty for this student campus group. Without recognition, the student members are unable to reserve space on campus for their weekly worship gatherings, information tables, or outreach events. They are also denied access to the student activities funds they themselves contribute to each semester.

While Chi Alpha Vermont continues to work toward recognition, it has its eye on the Court.

If your Christian campus group has faced this kind of injustice on campus, tell us about it.

Deluge of Amicus Briefs: 14 State Attorneys General Agree that Christian Students should not be Forced to deny their Faith.

February 5, 2010

Yesterday, a deluge of amicus (friend of the court) briefs supporting the Christian Legal Society were filed at the Supreme Court.   At least 21 briefs were filed in support of CLS, and I believe there are a few more that I have not seen yet.  This is a  substantial number of supporting amicus briefs, although not a record for the Supreme Court. 

   The broad array of briefs supporting religious liberty and the Christian Legal Society is amazing.  For example, 14 states, through their attorneys general joined togehter in a brief authored by the State of Michigan supporting CLS. The states include a geographic diversity from sea to shining sea of Alabama, Colorado, Florida, Idaho, Louisiana, Nebraska, New Mexico, Pennsylvania, South Carolina, South Dakota, Utah, Virginia and West Virginia.   

    Diverse religious groups agreed that the Constitution protects the right of a private group to define and select their officers and members. Muslim and Sikh groups joined African-American and Hispanic Christian pastors in an amicus brief by the Becket Fund.  Two Jewish groups filed briefs –  the Union of Orthodox Jewish Congregations and Agudath Israel of America also agree with CLS that religious liberty means a private group should be able to use its own theological standards to decide who qualifies as its leaders or members.

    Several briefs deserve special note.  A former Solicitor General of the United States under President George W. Bush, Paul Clement, co-wrote an amicus brief with Jay Sekulow and Walter Weber of the American Center for Law and Justice.  The Solicitor General is an important position in the U.S. Department of Justice that represents the U.S. Government before the Supreme Court.  It is very prestigious to have a former Solicitor General supporting CLS, but it is doubly important because the University of California-Hastings has hired another former Solicitor General, Greg Garre, to defend its use of its discrimination policy to kick CLS off campus.  

   The ACLJ brief is noteworthy because many major Christian campus organizations have joined the brief, such as Campus Crusade for Christ, Intervarsity Christian Fellowship,  Chi Alpha and others.  These organizations have suffered for years on college campuses, when officials require them to allow non-Christians to run or join their Christian organizations as the price to be able to meet on campus.  Of course, no other student group is required to accept students who disagree with the mission of the organization. For example, no university would require a student group supporting animal rights to accept as officers or members students who worked as lumberjacks, taxidermists, or who eat hamburgers at In-N-Out.   The universities with these policies force only the religious groups (really, only the Christian student grouprs) to accept nonadherents as members or officers.

    If you are looking for one amicus brief that advocates the right position in a clear, straightforward manner, I would point you to the brief filed by the Foundation for Individual Rights in Education (FIRE).  FIRE has fought for years on campuses around the nation for the rights of students, their organizations and faculty to speak freely, to advocate their ideas collective in free associations and to protect individual’s right of conscience against university censorship, punishment, banishment and opprobation.  FIRE’s brief is outstanding in its advocacy and model of clarity in its writing.

   Lastly, there is even a brief written by one of the most insightful and influential Christian theologians living today, Wayne Grudem.  Dr. Grudem wrote this brief on behalf of a number of evangelical Christian scholars and heads of the Evangelical Theological Society.  This brief explains the Biblical views followed by CLS on their religious beliefs to lead or join the organization, and their Biblical beliefs surrounding marriage and sexual purity.  It is well worth reading and studying.  Dr. Grudem, as he did in his Systematic Theology book and others, writes in a thorough and easy-to-understand manner.  

      UC-Hastings and its attorneys will have about a month to write their main merits brief.  The amici supporting Hastings will submit their briefs a week later during the second week of March.  Although the Supreme Court has not yet officially set an oral argument date for the CLS case, I predict that it will be during the Court’s sitting, which is the last two weeks of April.  The high court will probably hand down a decision in the case by late June, before the end of the Court’s term.

Who is Defending Liberty?

February 3, 2010

One of the more irritating assumptions in modern cultural/political life is the common theme one encounters on campus (and elsewhere) that the cultural Right restricts liberty while the Left defends it. And no one (allegedly) restricts liberty more than those tyrannical members of the “Religious Right,” with their repressive moral code and puritanical sensibilities.

If this is the case, then why is it — as a card-carrying member of the “Religious Right” — I have never in my career been involved in a case that limited or constricted pre-existing legal rights? Why is it that every successful case has resulted in greater liberty, not just for my clients but for the entire campus community?

Click here to read the rest of the story.

David French, Senior Counsel writing for NRO Phi Beta Cons


Follow

Get every new post delivered to your Inbox.