Here are seven reasons why we at the Alliance Defense Fund are battling for the constitutional rights of the Christian Legal Society before the U.S. Supreme Court:
1. The Constitution protects CLS’s rights. The Constitution protect the rights of private groups to pick their members and officers without government interference or punishment. The Supreme Court wrote in Healy v. James back in 1972 that the First Amendment protects “the right of individuals to associate to further their personal beliefs,” and the “denial of official recognition *** to college organizations burdens or abridges that associational right.” 408 U.S. 169, 181. The University of California at Hastings is simply wrong that its nondiscrimination policy trumps the First Amendment rights of private student groups.
2. Universities can deny recognition in order to stigmatize unpopular groups. University officials can misuse their authority and deny groups official recognition because they do not like what the groups advocate, thereby ostracizing or punishing them. A university essentially brands a group as “bigoted” for doing what CLS did in this case. Universities can also implement the stigmatic insults in subtle ways. For example, before the litigation ensued that CLS won, school officials at Southern Illinois University asked the local Christian Legal Society chapter to remove its coffee pot immediately from the closet where “recognized” groups kept their equipment.
3. The policies are illogical and ridiculous. Many state universities require Christian organizations to accept nonadherents as members and officers, but allow other student groups to exclude students for not agreeing with their message. That means the campus Socialists can exclude free market libertarians. The campus feminist group can continue to exclude prolife women from their group. Why then must the Christian groups allow nonbelievers to speak or lead their Bible studys? Changing the policy to say that all groups must accept anyone as a member can create strange results. For example The Attorney General of West Virginia, who joined the brief by the 14 state Attorneys General, disclosed in a footnote that his daughter attends UC-Hastings Law School and is the President of the Hastings Democrats. UC-Hastings recently informed the Hastings Democrats that it must be opened to Republicans and other non-Democrats in order to remain a recognized student group. This is absurd.
4. Other students can use these policies to undermine or abolish groups they don’t like. The amicus brief by the Foundation for Individual Rights (FIRE) tells the chilling story about the chapter of Young Americans for Freedom, a conservative political group, at Central Michigan University. In 2007, school officials told YAF that it could not require students to be “like minded” and would have to accept students who were explicitly seeking to join YAF and disband it. This is not the only incident of students joining a group under the “nondiscrimination policy,” and then seeking to dissolve the group or alter its message or use the nondiscrimination policy to retaliate against disfavored groups.
5. It debases the discourse on civil rights. Our nation continues to walk through a long battle for racial equality. Like governments that add base metals to gold coins, universities debase the currency of civil right discourse by claiming that when the Christian Legal Society requires its officers to be Christians, they are just as bad as white supremecists using Jim Crow laws to segregate blacks from whites. If what CLS is doing in this case is equal to what racists did to blacks in the past, then universities have lost their ability to define cogent and reasonable categories for discussing issues surrounding discrimination.
6. It will spread if not stopped here at the university. This improper use of nondiscrimination laws to violate the rights of private groups right now is limited to university campuses. But it could spread to other places where the government permits freedom of speech – city parks, parade permits, etc. Many religious groups rent public schools for meetings on weekends. A malicious school board could “open” its facilities to all groups, but deny them to those who discriminate on the basis of “religion.” That would include a church that requires its pastor to believe certain Christian doctrines, and not be an atheist. This subtle gerrymandering would exclude churches from meeting in facilities open to all other groups. This pernicious error must be stopped at the Supreme Court before it spreads!
7. It teaches wrong ideas to the next generation of our nation’s leaders. The misuse of these nondiscrimination policies by school officials are teaching our next generation of leaders that it is OK under the Constitution to single out religious groups and exclude them from campuses, etc., because their ideas and practices “discriminate” against non-believers. Instead, universities should be teaching their students the value of robust debate in the market place of ideas, the need for respect for others and the importance of tolerating (and not squelching) conflicting viewpoints. The university policy in this case wrongly teach students that unconstitutional government censorship of private speakers and private groups is OK and maybe even admirable.