USA Today and CLS v. Martinez

USA Today took on Christian Legal Society v. Martinez (to be heard by the Supreme Court on April 19) in a recent opinion column by Tom Krattenmaker.  In this case, the Supreme Court will decide whether Hastings College of the Law violated the Constitution by refusing to recognize a Christian Legal Society chapter because it draws its officers and voting members from among those who share its religious commitments (both doctrinal and ethical).

Mr. Krattenmaker’s primary points are (1) this case is hard; and (2) there should be some compromise.

As to the assertion that this case is hard, the unstated underlying assumption seems to be that the law has never considered what to do with religious groups that want to choose their leaders and members based on religious beliefs.  This assumption is demonstrably false.  The law almost always respects the freedom of religious groups to use religious criteria to define themselves.

Examples abound.  Title VII of the Civil Rights Act of 1964 exempts religious employers from its ban on religious discrimination in employment.  More generally, the law respects the freedom of churches and other religious congregations to select their members and their clergy.   The proposed Employment Non-Discrimination Act exempts religious employers from its ban on “sexual orientation” discrimination.  Non-discrimination “strings” attached to federal money do not include “sexual orientation,” most do not include religion, and the Department of Justice has opined that forcing religious groups to give up their religious staffing freedoms as a condition of receiving federal funding violates the Religious Freedom Restoration Act.  The Supreme Court has already held that “expressive associations” have a right to deny leadership to individuals who reject a group’s message through their beliefs, speech, and actions.

Accordingly, it is Hastings — not CLS — that seeks a radical departure from the prevailing way that the law has dealt with religious groups  that consider religious beliefs when choosing their leaders and members.

Mr. Krattenmaker’s second main point is that there ought to be some “middle ground.”  He cites approvingly two specific examples offered by Robert O’Neil, director of The Thomas Jefferson Center for the Protection of Free Expression.  Here is the first:  “The justices could rule, for instance, that the Christian student group might rightly be expected to include gay students as rank-and-file participants, but not as officers.”   There are many problems with this proposed “compromise.”

First, it is misleading (at best) to suggest that this case is all about the ability of “gay students” to serve as leaders and voting members of CLS.  Hastings originally said that CLS could not consider religious belief or same-sex sexual conduct in choosing officers and members.  In other words, it could not deny voting membership to an atheist who rejected CLS’s core religious beliefs.  Hastings later said that CLS was required to admit anyone to leadership or membership.  In other words, it is simply wrong to say that this case is all about “gay students.”

Second, this proposed compromise is, in a very real sense, what CLS is already doing.  Anyone can be a “rank-and-file participant of CLS,” without regard to their beliefs, sexual “orientation,” or sexual practices.  Hastings deemed this insufficient, declaring that CLS was required also to open up voting membership and leadership to students who reject its core religious commitments.  In my view, Hastings has not persuasively argued why participation is insufficient and why eligibility for voting membership and leadership is also required.

Third, to the extent one modified this “compromise” to require students who reject CLS’s beliefs to be voting members (as opposed to mere rank-and-file participants), it ignores the fact that voting members choose the group’s leaders and thus have a significant role in maintaining the group’s religious character and message.  Moreover, voting members (students who have voluntarily signed the CLS Statement of Faith) lead CLS Bible studies.  Does it make sense to force CLS to allow individuals who reject the Bible to lead a study of it?  Is this a sensible compromise?

The second proposed compromise Mr. Krattenmaker proposes is as follows:

Clearly communicate the anti-discrimination code, and [the] expectation to abide by it, to all student groups. But refrain from action against any of them unless a real-life, excluded individual steps forward with a legitimate grievance.

There is actual a kernel of common sense here.  No actual person who rejected CLS’s religious views sought to be a leader or voting member of CLS at Hastings.  If Hastings simply responded to complaints, this dispute might have never arisen.  The problem, though, is that Hastings required CLS to promise in advance that it would never consider religious belief or immoral conduct in selecting its officers and voting members.  CLS could not secure access to meeting space, funding, and communications mechanisms without making that advance promise.  Hastings essentially said to CLS, “you can’t use your Statement of Faith in choosing your leaders and voting members.”  Understandably, CLS could not make such a promise, and Hastings ejected it from the speech forum it set up for student groups.

The O’Neil/Krattenmaker suggestion points out what is really going on in this case.  Hastings is not really trying to open CLS to students who reject its religious beliefs but nonetheless desire not only to attend and participate (which CLS already allows) but to serve as leaders and voting members.  There is no evidence that such a student ever existed, and it is difficult to imagine what legitimate motive such a student might have.  Instead of protecting actual people from the unjust denial of some valuable benefit on an irrelevant and invidious basis, Hastings is simply trying to “send a message.”  Its message is that CLS’s religious and moral beliefs are wrong.  Hastings is trying to communicate its own view that same-sex sexual conduct is not immoral.  Hastings wants to loudly proclaim that it disagrees with CLS.

Yet, the essence of the First Amendment is that the government cannot use its power to disfavor messages it disagrees with.  Hastings’ treatment of CLS goes to the core of the First Amendment, and CLS should not be expected to compromise away its fundamental liberties so that Hastings can better proclaim its own message.