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.
Tags: christian legal society, CLS, CLS vs. Martinez, freedom of association, Freedom of Religion, Freedom of Speech, Hastings, Higher Education, non-discrimation, Public Universities, Student rights, Supreme Court, UC-Hastings