Members Only?

Christian Legal Society’s Desire To Discriminate At California Law School Sparks ‘Culture War’ Clash At Supreme Court

Under normal circumstances, the membership rules of the Christian Legal Society (CLS) chapter at Hastings College of the Law in California would hardly be a matter of widespread interest.

But the question of who may and may not join the CLS affiliate reached the Supreme Court last month, forcing the issue onto the national stage. Although it may seem an obscure question, Christian Legal Society v. Martinez could be a sleeper: It presents the court with an opportunity to address the legality of public funding of religious groups that openly discriminate on theological grounds; thus, it has the potential to affect the “faith-based” initiative and a host of issues related to tax funding of religion.

The case centers on a policy in place at Hastings, a San Francisco school that is part of the University of California system of higher education. Hastings requires all student groups that receive official recognition and funding from student activity fees to abide by a policy of non-discrimination. (See “The Battle of Hastings,” February 2010 Church & State.)

Leaders of the CLS chapter are demanding the right to limit membership to Christians who agree with the group’s creed and deny it to gays and non-Christians. When Hastings officials denied the club recognition, CLS enlisted the aid of a high-powered Religious Right legal group, the Alliance Defense Fund, and sued.

CLS lost in court twice, but last year the Supreme Court announced it would hear the case. Almost immediately, defenders of the church-state wall and wall bashers began squaring off.

Although the Martinez case lacks the emotional tug of other church-state issues such as battles over governmental displays of the Ten Commandments or the teaching of religion in public schools, Court watchers say the legal questions it presents are important.

“Any time the Supreme Court takes up a case that could affect tax funding of religion, we need to pay close attention,” said Ayesha N. Khan, Americans United’s legal director. “For many people, the right to support only the religion of their choosing – or support no religion at all – is central to the right of conscience.

“This case,” continued Khan, “could chip away at that right.”

To be sure, the situation in the Martinez case is not a perfect analogy to faith-based funding. The CLS chapter at Hastings seeks a slice of the student funding pie. This revenue stream, created by a mandatory fee imposed on students, is common at universities throughout the country, but it’s not exactly the same as a tax.

If the court rules for CLS, it could do it in a narrow way that mainly affects student-activity-fee funding at public colleges. But a more sweeping ruling that lays down broad new rules for how and when government may steer tax aid to sectarian groups is certainly possible.

Religious Right legal organizations and their allies know this – and that’s why they are paying so much attention to the Martinez case. These forces, determined to erode the church-state wall, are adept at pushing the boundaries.

If the conservative-leaning Roberts court rules their way, they’ll undoubtedly use the precedent to argue that government has the right – or perhaps even an obligation – to fund religious groups even if they engage in flagrant forms of discrimination in hiring.

The impact of such a ruling could be immediate and staggering. Questions of religious discrimination in tax-funded programs have continued to dog the faith-based initiative. For example, in March, a charity called World Relief announced that all of its employees must be evangelical Christians – even though some two-thirds of the group’s budget comes from the federal government. (See “World Relief Grief,” May 2010 Church & State.)

With so much at stake, organizations are lining up to comment on the Martinez case. Forty friend-of-the-court briefs have been filed in the case, 23 siding with CLS, 16 with Hastings and one on neither side.

Religious Right groups, including Jerry Falwell Jr.’s Liberty Counsel, Phyllis Schlafly’s Eagle Forum, Chuck Colson’s Prison Fellowship, the National Association of Evangelicals and TV preacher Pat Robertson’s American Center for Law and Justice have, not surprisingly, sided with CLS. The U.S. Conference of Catholic Bishops did the same, along with the Union of Orthodox Jewish Congregations.

The Hastings policy has drawn support from the American Civil Liberties Union, the American Bar Association, the Anti-Defamation League, Lambda Legal Defense Fund, the Association of American Law Schools and a wide array of education groups.

Americans United filed a brief jointly with the American Jewish Committee and the Union for Reform Judaism. The three groups argue that public universities have a vested interest in stamping out discrimination and says the Hasting policy is a reasonable way to achieve that.

AU’s Khan fleshed out the organization’s perspective during an April 7 panel discussion at the National Press Club in Washington, D.C. During the event, sponsored by the American Constitution Society, Khan pointed out that student-run organizations that don’t want to follow the rules don’t have to accept activity-fee funding.

“This is like me telling my kids, ‘You get your allowance if you do your chores,’” Khan said. “That’s a real choice, and I’ll tell you, my daughter wants her allowance and my son doesn’t. His room is a mess and hers is pristine.”

CLS, Khan said, “wants a special exemption from a policy that applies to everyone else.”

Michael McConnell, a law professor and former federal appeals court judge who argued the case on behalf of CLS at the high court, sees it differently. Adding a dose of “culture war” rhetoric to the issue, McConnell told USA Today March 30, “It has to do with who has power. Certainly universities and a lot of state and local governments are dominated by leftists.”

Several right-wing groups that have sided with CLS have also attempted to frame the issue as one of free speech and free association. Religious groups like CLS, they argue, should have the right to determine their own membership policies.

Groups like Americans United agree that the CLS chapter at Hastings would have the right to operate under its own rules and regulations if it relied on private funds. But, AU and its allies say, organizations shouldn’t have the right to force a public university to subsidize discriminatory policies or pick and choose which rules they will follow. As long as the school is treating all groups equally by imposing the same regulations on all, no rights are being violated, says AU.

The Supreme Court heard oral arguments in the Martinez case April 19 and will issue a ruling by early July.

“I find it remarkable that religious groups think they should be able to receive public support and not even meet minimal regulations,” Khan said. “I hope the Supreme Court sees through this gambit and rules against CLS.”