7
   

Christian Legal Society v. Martinez

 
 
OmSigDAVID
 
  1  
Reply Tue 20 Apr, 2010 09:50 am
@engineer,
engineer wrote:
This could happen anywhere at any time, not just on campus. Why do organizations on campus have special protections from the vagaries of democracy? If a student organization wants to exclude students, they should not be on campus taking student activity funds. This seems like a fair school policy and well within the school's rights. This organization wants an exemption because of its religious nature. To me the question is whether they are asking for special privilege due to their religion or if they are being discrimated because of it. I think the former.
Will u comment on the specifics of my example ?
How is that situation best addressed ?





David
Joe Nation
 
  3  
Reply Tue 20 Apr, 2010 09:56 am
The students, it would appear to the casual observer, are not trying to form a club. They are establishing a church.

Joe(and hoping the State taxpayers will drop some cash in the collection plate.)Nation
OmSigDAVID
 
  1  
Reply Tue 20 Apr, 2010 09:58 am
@Joe Nation,
Sometimes, I like the way u look at things.
0 Replies
 
Thomas
 
  1  
Reply Tue 20 Apr, 2010 10:40 am
I don't say this often, but I think OmSigDavid is right: It isn't discrimination when a club requires that its members subscribe to its mission. If an athletic club can exclude couch potatoes and a pacifist club can exclude militarists, a club of Bible Thumpers can exclude gays and atheists. Personally, I think a club like this is for morons. But that shouldn't affect the outcome of this case. Morons have constitutional rights, too.
Cycloptichorn
 
  1  
Reply Tue 20 Apr, 2010 10:50 am
@Thomas,
Thomas wrote:

I don't say this often, but I think OmSigDavid is right: It isn't discrimination when a club requires that its members subscribe to its mission. If an athletic club can exclude couch potatoes and a pacifist club can exclude militarists, a club of Bible Thumpers can exclude gays and atheists. Personally, I think a club like this is for morons. But that shouldn't affect the outcome of this case. Morons have constitutional rights, too.


I don't think they can, because it's unknowable whether or not someone actually believes in a mission. You certainly can't tell just by looking.

Let us say that you could not exclude atheists from bible study, but you could force them to study the bible and participate in regular order. You can't keep gay members out of a group - what a ridiculous suggestion, as if you can't be both Gay and Christian! - but you could force them to participate in group activities which do demean gay people.

Every group has the right to have internal rules based on participation in the group's core mission. They don't have the right to arbitrarily decide who can and cannot support the core mission based on factors such as race or sexuality - not if they want to accept government/public funding, which is the question here.

Cycloptichorn
0 Replies
 
wandeljw
 
  2  
Reply Tue 20 Apr, 2010 11:19 am
@Thomas,
Thomas wrote:

I don't say this often, but I think OmSigDavid is right: It isn't discrimination when a club requires that its members subscribe to its mission. If an athletic club can exclude couch potatoes and a pacifist club can exclude militarists, a club of Bible Thumpers can exclude gays and atheists. Personally, I think a club like this is for morons. But that shouldn't affect the outcome of this case. Morons have constitutional rights, too.


I believe it is in the actual bylaws of the club to keep out non-Christians or those they interpret as "living in sin" (homosexuals). The school policy is simply that the club bylaws must allow any student to join. The school does not need to prove discrimination. After all, they are the defendant in this case. The club needs to prove discrimination (religious discrimination).
Irishk
 
  1  
Reply Tue 20 Apr, 2010 11:28 am
@wandeljw,
I looked at some of the student groups at UC Hastings here.

Most of the bylaws state that admission is open to all full time students. A few make stipulations that admission is open to full time students "who are committed to the purpose of the organization"...

The Christian Legal Society wasn't listed.

ETA: If the Christian Legal Society didn't comply with the school's nondiscrimation clause (and it sounds like it didn't) then there's obvious good cause for shutting them down, IMO.
0 Replies
 
engineer
 
  2  
Reply Tue 20 Apr, 2010 12:38 pm
@OmSigDAVID,
OmSigDAVID wrote:

engineer wrote:
This could happen anywhere at any time, not just on campus. Why do organizations on campus have special protections from the vagaries of democracy? If a student organization wants to exclude students, they should not be on campus taking student activity funds. This seems like a fair school policy and well within the school's rights. This organization wants an exemption because of its religious nature. To me the question is whether they are asking for special privilege due to their religion or if they are being discrimated because of it. I think the former.
Will u comment on the specifics of my example ?
How is that situation best addressed ?

It's not the job of the school or the Supreme Court to address that. If my home owners organization is overrun with people from the newly developed area and they choose to change the constitution, vote in their partisans and use the money we put aside for improvements we don't like, that's too bad. Democracy is sometimes messy like that. Is it possible that atheists will join this Christian organization and change its nature? Sure, probably not, but sure. Is that possible at every other college club? Once again, sure but it's probably not going to happen. To me the question is why does this club get special privilege? It seems like they are arguing that they are getting penalized for being Christian and that penalty is living by the rules that everyone else does. I would argue that they are asking for special dispensation to discriminate strictly because of religion and that a state school cannot do that.
0 Replies
 
engineer
 
  2  
Reply Tue 20 Apr, 2010 12:41 pm
@Thomas,
Thomas wrote:

I don't say this often, but I think OmSigDavid is right: It isn't discrimination when a club requires that its members subscribe to its mission. If an athletic club can exclude couch potatoes and a pacifist club can exclude militarists, a club of Bible Thumpers can exclude gays and atheists. Personally, I think a club like this is for morons. But that shouldn't affect the outcome of this case. Morons have constitutional rights, too.

I don't have an issue with them forming a club, but if they want a campus club with all the benefits of that designation, they must conform to the campus rules. They are not being singled out for punishiment in any way. If they are really worried about this (and I don't know why they are) then take it off campus.
0 Replies
 
Thomas
 
  2  
Reply Tue 20 Apr, 2010 04:22 pm
@wandeljw,
wandeljw wrote:
The school policy is simply that the club bylaws must allow any student to join.

Indeed. On second thought, I'm realizing that the premise of my "if" statement was false: Under the rules of this university, athletic student organizations would have to allow couch-potatoes, and pacifist student organizations would have to allow militarists. On this rationale, the university's case now looks sound to me.
OmSigDAVID
 
  1  
Reply Tue 20 Apr, 2010 04:59 pm
@Thomas,
wandeljw wrote:
The school policy is simply that the club bylaws must allow any student to join.
Thomas wrote:
Indeed. On second thought, I'm realizing that the premise of my "if" statement was false:
Under the rules of this university, athletic student organizations would have to allow couch-potatoes,
and pacifist student organizations would have to allow militarists.
On this rationale, the university's case now looks sound to me.
Please refer back to my examples
of a preponderant number of KKK members joining the chapter
of the NAACP, electing themselves to positions of leadership
and democratically enacting rules, by Robert's Rules of Order,
that r strikingly inconsistent with the original mission, e.g.:
"all members must work a minimum of 5 hours per week
in service of the election to public office of KKK endorsed candidates,
including door-to-door distribution of such philosophical literature as shall be chosen by the Grand Dragon."

"Financial donations shall be contributed to such organizations
as shall be decided by a vote of the majority."

Do u believe that the Constitution requires this result, Thomas ?





David
engineer
 
  2  
Reply Tue 20 Apr, 2010 06:04 pm
@OmSigDAVID,
OmSigDAVID wrote:

Do u believe that the Constitution requires this result, Thomas ?

The Constitution has nothing to do with it. School rules require it and the school is within its rights to apply uniform and consistent rules to groups it funds. Nothing in the Constitution requires that school to fund an organization that does not follow the same rules everyone else does. The club is asking for special consideration because it is a religious organization and a government entity cannot show special consideration to a religious organization.
Thomas
 
  3  
Reply Tue 20 Apr, 2010 06:18 pm
@OmSigDAVID,
OmSigDavid wrote:
Do u believe that the Constitution requires this result, Thomas ?

I do indeed. But then again, the Klansmen in that case weren't asking any government entity to use its logo, its infrastructure, or its money to pursue their mission. This case is different. The university is not actively forcing the Christian Legal Society to accept atheists and gays. It is merely refusing to subsidize it -- along with every other student organization unless the ones that are open to every student. This viewpoint-neutral test for who gets university subsidies strikes me as constitutional. It also strikes me as utterly fair. The Christian Legal Society remains free not to associate with people who violate its policies -- and so does the university.
Joe Nation
 
  1  
Reply Tue 20 Apr, 2010 08:49 pm
@Thomas,
Well asked. and well answered.

Joe(bravo)Nation
0 Replies
 
joefromchicago
 
  3  
Reply Wed 21 Apr, 2010 08:57 am
@engineer,
engineer wrote:
The Constitution has nothing to do with it.

The litigants and the court would disagree.

engineer wrote:
School rules require it and the school is within its rights to apply uniform and consistent rules to groups it funds. Nothing in the Constitution requires that school to fund an organization that does not follow the same rules everyone else does. The club is asking for special consideration because it is a religious organization and a government entity cannot show special consideration to a religious organization.

Actually, the government shows special consideration for religious organizations all the time. For instance, under section 501(c)(3) of the Internal Revenue Code, religious organizations are permitted to operate as tax-exempt charities. A religious organization, in other words, can qualify as tax-exempt solely by virtue of its being religious.

The constitution recognizes that religion is special. If this had been the He-Man Gurl Haiters Club trying to limit membership to men only, it wouldn't have reached the supreme court, because it wouldn't have involved religion. Your analogies to non-religious cases, consequently, are only of limited use.
engineer
 
  1  
Reply Wed 21 Apr, 2010 02:03 pm
@joefromchicago,
OK then, how do you see it? Can a club with restricted membership demand material and financial support from the school even though it violates the basic requirements set forth by the school because it is a religious club?
joefromchicago
 
  3  
Reply Wed 21 Apr, 2010 03:33 pm
@engineer,
I don't know enough about this area of the law to offer anything more than a guess, and I don't care enough about it to learn enough about it. My guess is that the court will throw up its collective hands in confusion and order the appellate court to explain its summary affirmance of the district court.

As to the substance of the case, religious institutions can be required to adhere to laws of general application, as long as those laws are applied in a non-discriminatory fashion. Thus a church, for instance, may be required to adhere to a city's building code as long as that code isn't used to discriminate against churches. In this case, the club argues that the school's rules are being used to discriminate, which apparently is contrary to what the club said at the district court level.

The supreme court requested the complete district court file, which is rather unusual, so that suggests to me that the court can't figure out if the club stipulated to the non-discriminatory application of the law school's rules. It's not uncommon for a party to stipulate to a set of facts, especially when that party is trying to get a ruling on a narrow question of law, but it is uncommon for a party to stipulate to a set of facts at the trial court level and then assert that it didn't stipulate to those facts at the supreme court level, which may be what happened in this case.
wandeljw
 
  1  
Reply Fri 23 Apr, 2010 11:23 am
Quote:
Can a Public Law School Constitutionally Require a Christian Student Group Not to Exclude Non-Christians and Gay Persons?
(By VIKRAM DAVID AMAR and ALAN BROWNSTEIN, FindLaw Legal News, April 23, 2010)

In this column, we discuss an interesting case on which the Supreme Court heard oral argument this week. It concerns student First Amendment rights and a public university's efforts to combat discrimination and promote diversity.

The dispute arose when the Hastings College of the Law in San Francisco (a public law school) refused to grant official recognition to the Hastings chapter of the Christian Legal Society (which we will refer to as "CLS" or "the Society"), a national organization of lawyers and law students devoted to upholding Christian ideals.

Hastings has a policy that requires all student groups that seek official recognition and the opportunity to obtain a small amount of resources from the pool of money available for student organizations to agree to refrain from discriminating in accepting voting members and choosing officers. Initially, a number of types of discrimination were banned, such as those based on race, sex, sexual orientation, and religion. Later, Hastings expanded its policy to prohibit discrimination on ideology as well so that, in essence, officially recognized student groups must accept all comers.

The CLS students at Hastings maintained that " despite this policy " they had a First Amendment right to receive recognition and support and to exclude non-Christians and gays as voting members, because such individuals do not adhere to the viewpoint that the Society is trying to promote. Litigation ensued. (Full disclosure: One of us, Professor Amar, was on the faculty at Hastings when the CLS lawsuit originated, and gave his views to the law school and assisted it in securing outside counsel in the lower courts.)

The federal district court ruled in favor of Hastings, and the Supreme Court granted review from the Ninth Circuit's very brief opinion in the case.

In the Supreme Court, CLS raises two primary arguments under the First Amendment: one based on expressive associational freedom, and the other based on alleged viewpoint discrimination.

The core expressive association issue is whether CLS has a right to exclude students because their inclusion would impair the Society's message, while still receiving official recognition and a subsidy from Hastings. That issue has been thoroughly discussed by commentators and in the briefs by the parties and so-called "friends of the Court." Thus, we will refrain from reinventing the wheel altogether here.

We think it may be helpful, however, to think more generally about the scope and consequences of a potential Supreme Court decision invalidating the application of Hastings's anti-discrimination policy to the CLS on associational freedom grounds.

One question that may arise if the Court rules in CLS's favor is whether the associational freedom right recognized in this case undermines anti-discrimination policies focusing on suspect characteristics other than religion or sexual orientation. For instance, what if a political or a religious student group argued that its associational freedom is burdened by prohibitions against race discrimination or sex discrimination?

Suppose, for example, a religious student group believes that only men are qualified, under the requirements of their faith, to hold leadership positions in their association. Would that group have a constitutional right to enforce its gender- discriminatory policies as a registered and subsidized student group at a public university" just as CLS argues that it has a constitutional right to discriminate on the basis of religion?

During the Supreme Court oral argument that occurred on Monday, CLS attorney Michael McConnell insisted that CLS challenged only the part of Hastings's policy prohibiting discrimination based on belief, and that Hastings would remain free to prohibit discrimination based on status, such as race.

Yet when asked by Justice Stevens, "What if the belief is that African Americans are inferior?", McConnell reiterated his position that a registered student group "can discriminate on the basis of belief, but not on the basis of status."

That belief/status distinction, however, would presumably allow a student club to limit its membership to only those African Americans who believed (and were willing to proclaim) that African Americans were inferior to White people. We are not sure that a constitutional rule allowing this kind of belief discrimination differs markedly, in its real- world effects, from a rule allowing racial discrimination based on the color of a person's skin.

Another question that might arise is whether the right to discriminate and exclude nonbelievers applies only to voting members and officers, or whether it will apply to any and all students interested in participating in a student group's programs.

We understand that CLS at Hastings welcomes everyone to participate in its activities. The open question is whether this is a discretionary choice, which student groups can make or decline to make " or whether a university can require an open-door policy for participation in events as a condition to registration as a student group.

If we follow the logic of recent Supreme Court cases and the CLS brief, it is hard to explain why a student group's rights would be limited to excluding voting members alone. Attendance at an event by nonbelievers " say, an event involving the showing of a film and a discussion of its content " could arguably change the nature of the event in a significant way, and impair the event's usefulness to the organization.

A final question is whether the same analysis that CLS advocates in this case should apply to what we call "religion and" groups and activities. The groups at issue in such situations are ones that are organized around both their faith and some additional activity that is not intrinsically religious: a Christian Chess club, or a Protestant Math club, or a Judeo-Christian debating society.

Granted, these kinds of generic clubs or societies are more likely to be organized at a high school or college, rather than a law school. However, it is not clear that the associational freedom principle advanced by CLS in the Hastings case would apply differently to these various educational institutions.

The problem, of course, is that associational exclusivity in a "religion and" setting acts not only as a shield to protect the religious organization from interference, but also as a sword that may make it impossible for members of minority faiths to participate in a wide range of extra-curricular activities.

If extracurricular activities at a public high school, for example, may limit their membership to the dominant religions in the community, there may be far too few students adhering to other faiths to develop alternative programs that can match the activities available to the majority.

CLS notes correctly in its brief that this issue was much more pronounced in Boy Scouts of America v. Dale (a case in which the Boy Scouts were allowed to exclude gay scoutmasters and still operate in New Jersey) than it is in the Hastings case, because, unlike the Boy Scouts, CLS is an exclusively expressive association. But the issue remains an open and troubling one nonetheless.

Because the Court in Dale failed to adequately explain how the relevant standard of review actually applied in that case, we have no basis for even beginning to address this issue today. If the Supreme Court's opinion in the CLS case is as incompletely reasoned and under-explained as its opinion was in Dale, there is reason to worry that the CLS case will only exasperate this problem.

The second major theme of CLS's brief is that the Hastings anti-discrimination policy constitutes impermissible viewpoint discrimination. We believe that this argument is not only wrongheaded " it is also dangerous to the cause of religious liberty and equality.

CLS claims that Hastings's anti-discrimination policy is viewpoint-discriminatory in two respects. First, CLS argues that in the Hastings list of bases on which discrimination is forbidden, sexual orientation (which Hastings interprets to include sexual activity, as well as sexual identity) "is the only forbidden ground based on conduct."

All groups, CLS contends, (other than groups that have a problem with homosexuality) are "permitted to insist that [their] leaders conduct themselves in accordance with the group's stated beliefs." Only groups opposed to certain sexual activities " activities that Hastings categorizes under "sexual orientation" " are restricted in their choice of officers by this policy. This, CLS insists, is viewpoint discrimination.

This argument has serious flaws. Does anyone doubt that Hastings would find that discrimination against interracial marriages, dating, or friendships would fall under the prohibition of race discrimination in its policy? But interracial relationships are also conduct. Thus, CLS is simply wrong when it says that anti-gay groups are the only ones that must tolerate the unwanted conduct of prospective members.

Indeed, religion itself has a conduct element, and is not simply about beliefs. One of us is Jewish. That means he holds certain beliefs. But it also means he engages in certain conduct and activities: He practices Judaism. Assume that a registered, non-religious student group at Hastings told a Jewish student, "Look, we are not discriminating against you because of your beliefs. We are discriminating against you because you do Jewish things " you worship the way Jews worship." We have little doubt that Hastings would find this conduct-based discrimination to be religious discrimination and thus to be prohibited under its policy.

Accordingly, we see little in fact or law to support the argument that Hastings is engaged in viewpoint discrimination because sexual orientation is singled out, and groups that oppose gay conduct are distinctly regulated.

The second variant of CLS's viewpoint discrimination argument is even worse. CLS argues in its brief that among the list of categories that Hastings protects against discrimination, religion is "the only forbidden ground that is based on belief or opinion."

According to CLS, this singling out of religious students for protection from discrimination also constitutes viewpoint bias. Why? Because "of all the various opinion-based organizations at Hastings, religious groups are the only ones stripped of their right to control their message by controlling their leadership." Since the "environmentalist club" can discriminate against "climate change skeptics," CLS argues, it is viewpoint-discriminatory to prohibit CLS from discriminating against Non-Christians.

Surely, someone on the legal team writing the CLS brief must have begun to have some second thoughts about the idea that prohibiting religious discrimination is viewpoint discrimination. After all, prohibiting religious discrimination is generally thought to be a very good thing for universities to do, and a very good thing for religious persons in general and members of minority faiths in particular.

In recognition of this reality, the CLS brief does state that "the prohibition on religious discrimination is untroubling, indeed commendable, as applied to governmental institutions, businesses, and even nonreligious clubs. But when applied to groups that are organized around shared religious beliefs, this prohibition is unfair, counterproductive, disabling and unconstitutional." There is, tellingly, no citation to authority provided to support this point.

It's a nice try, but this argument simply won't work and, indeed, ultimately collapses upon itself. The constitutional prohibition against viewpoint discrimination is not so easily cabined or limited. CLS contends that it is viewpoint discrimination to treat student organizations based on religious belief differently and less favorably than student organizations based on secular beliefs. But if that is so, why isn't it equally viewpoint- discriminatory to treat students who hold secular beliefs less favorably than students who hold religious beliefs?

Yet under the very policy that CLS appears to endorse, students who hold secular beliefs would receive no protection against discrimination by nonreligious student groups under Hastings's policy. Only religious students are protected from discrimination on the basis of their beliefs.

Let's assume for a moment that religion is to be considered another viewpoint among all the viewpoints protected by the right to free speech " a viewpoint no different than any other political, social, or cultural belief or message " as CLS seems to argue. If so, why is it ever permissible to treat people who hold religious beliefs and express religious messages differently and more favorably than other people who hold and express other types of beliefs and messages " whether political, social, or cultural?

Or , to put the point another way, if it is viewpoint-discriminatory to allow the environmentalist club to discriminate against climate-change skeptics, while prohibiting the CLS from discriminating against Non-Christians, then why isn't it equally viewpoint- discriminatory to allow the CLS to discriminate against environmentalists while prohibiting the environmentalist club from discriminating against Christians?

Yet CLS seems to see no problem with a policy that prohibits non-religious clubs from discriminating on the basis of religion, while at the same time permitting religious clubs to discriminate on the basis of religious, political or cultural beliefs.

Basically, we think that in this section of its brief, CLS wants to have its cake and eat it too. CLS wants discrimination against religion to constitute viewpoint discrimination that is prohibited by the free speech clause of the First Amendment. But it does not want discrimination in favor of religion to constitute viewpoint discrimination that is prohibited by the free speech clause of the First Amendment.

Unfortunately for CLS, that's not the way free-speech doctrine works. The prohibition against viewpoint discrimination is, and has to be, fiercely even-handed. If disfavoring religious beliefs, expression and association is viewpoint-discriminatory, then favoring religious beliefs, expression, and association is equally viewpoint- discriminatory.

In our judgment, the Supreme Court has moved a long way down a treacherous path in this area of law. The problem is that the Court continually equates discrimination against expressive religious activities as viewpoint discrimination prohibited by the free speech clause of the First Amendment " rather than reviewing these issues under the religion clauses of the First Amendment.

In continuing down this path, the Court seems oblivious to the fact that, from a speech perspective, there is no basis for treating religious beliefs, expression, or expressive assemblies and associations as unique and distinctive, or as deserving of any special constitutional respect or recognition. Continued adherence to this approach is going to increasingly render discretionary religious accommodations subject to challenge under the free speech clause of the First Amendment.

CLS did not have to pursue this argument in its brief in the Hastings case, and we think it was an error for the group to pursue this approach. CLS's willingness to invoke this argument simply adds momentum to a doctrinal train wreck that is looming in the Court's future.
0 Replies
 
ABE5177
 
  -4  
Reply Fri 23 Apr, 2010 12:53 pm
@joefromchicago,
joefromchicago wrote:

I don't know enough about this area of the law to offer anything more than a guess, and I don't care enough about it to learn enough about it. My guess is that the court will throw up its collective hands in confusion and order the appellate court to explain its summary affirmance of the district court.


hell i dunno enought about it either but i wonder, how's with the insane? cna someone insane c laim to be protected and tnentitled to his own club?? how bout we FORCE them ointo theri OWN clybv, what's a nyctnhouse FOR??

just wondering came across a frieak a moment ago, cant that one join another club onlyu for crazies??

i'm sichl and tired to this onw
http://able2know.org/topic/144164-1#post-3970867
0 Replies
 
joefromchicago
 
  1  
Reply Mon 28 Jun, 2010 09:48 am
5-4 affirmed and remanded:

Quote:
The Court considers only whether a public institution’s conditioning access to a student-organization forum on compliance with an all-comers policy violates the Constitution. CLS urges the Court to review, instead, the Nondiscrimination Policy as written—prohibiting discrimination on enumerated bases, including religion and sexual orientation. The policy’s written terms, CLS contends, target solely those groups that organize around religious beliefs or that disapprove of particular sexual behavior, and leave other associations free to limit membership to persons committed to the group’s ideology. This argument flatly contradicts the joint stipulation of facts the parties submitted at the summary-judgment stage, which specified: “Hastings requires that [RSOs] allow any student to participate, . . . regardless of [her] status or beliefs. For example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs. . . .” This Court has long recognized that parties are bound by, and cannot contradict, their stipulations... The Court therefore rejects CLS’s attempt to escape from the stipulation and shift its target to Hastings’ policy as written.


Opinion here (.pdf).
 

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