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
Academic Freedom File 
March 2, 2010 at 9:41 am |
[…] Attorney Greg Baylor writing at the Academic Freedom File: “Today, Professor Marci Hamilton and I debated Christian Legal Society v. Martinez at […]
March 8, 2010 at 9:10 am |
I share Prof. Marci Hamilton’s basic views on child sexual abuse, an issue I never realized existed until after I started practicing law and had privileged and confidential relationships with many survivors of that horror, but she has gone off the deep end here in equating the Christian Legal Society chapter at a public law school requiring its officers to adherre to its fundamental Christian beliefs with a public university affording similar recognition to a chapter of the Ku Klux Klan, Nazis, or the like. Frankly, after reading a lot of her work on FindLaw, etc., I begin to perceive a more or less subtle anti-Christian bias.
The better analogy would be a student chapter of the Sierra Club requiring its officers and members to support its sometimes controversial political positions while remaining open, as CLS is, to visitors and cooperation with those of all religious and political beliefs. Otherwise, any small chapter or organization with a point of view or position has no defense against being taken over by its opponents.
The university’s and Hamilton’s position also has the Constitutional vice of tending to fall most heavily upon religious students or those whose views are influenced by their religion.
March 13, 2010 at 2:44 pm |
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 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 can meet? We should remember that Jesus came for the sick not the healthy.
March 26, 2010 at 3:33 pm |
[…] 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 […]