Top Court's Ruling in School Case Skirts Bigger Issue

(June 29) -- The Supreme Court has decided a California law school can deny university recognition to a campus club that bars non-Christians from its membership. But the ruling still hasn't settled the larger issue of how far colleges can go in pressing student groups not to discriminate.

Many public universities have policies requiring campus groups not to discriminate on the basis of things like religion, sexual orientation and race. However, in making its decision Monday the court passed up the opportunity to rule on how those policies apply to religious groups -- whether a Christian group, for instance, could require voting members to agree with its Christian beliefs, including opposition to sex outside of marriage.

Instead, the Supreme Court decided the case on the basis of a different policy at California's Hastings College of the Law. It said the university is entitled to require that all groups winning school recognition admit any interested member of the student body.

The Christian Legal Society v. Martinez case was decided 5-4. Some backers of the Christian Legal Society (CLS) believe that even though they lost the case, the nation's top court does not have a majority in favor of letting colleges similarly apply the broader nondiscrimination policies to religious groups.

"It's a policy and decision that is not going to stand the test of time," said Kim Colby, counsel for CLS. "It's a hostile policy toward true diversity, pluralism and First Amendment rights. What we're going to end up with is the Politics Club rather than the Republican Club and the Democratic Club."

Students should be able to form groups around shared beliefs, she said. Her group allowed non-Christians to attend but not to be voting members, or leaders, who head up Bible study.

Both sides agree that the difficult balancing act among various parts of the First Amendment -- the rights to free association, exercise of religion and free speech -- and the desire to prevent discrimination will continue to end up in the courts. For instance, cases involving doctors or pharmacists who morally object to providing some types of medical aid will pop up. Religious charities that provide government-contracted social services will likewise have conflicts between their religious beliefs and government nondiscrimination rules.

And universities will still need guidance on how to apply their nondiscrimination policies.

"What [the Supreme Court] didn't address is a much more important issue," said James Bopp Jr. of the James Madison Center for Free Speech in Indiana. "To tell a Christian group you cannot use religion as a criterion for membership is discriminatory based on viewpoint. Under the Constitution you could not say: 'We will recognize pro-choice groups but not pro-life groups.' "

But Rabbi David Saperstein, head of the Coalition to Protect Religious Liberty, said the court struck a perfect balance between the legitimate desire to fight discrimination and the right to freely exercise religion. "It's always difficult when the court pits valid moral principles against each other," he said.

Saperstein said many colleges will see the decision as endorsing their nondiscrimination policies. And some may adopt the specific "all comers" policy that Hastings employs, requiring that officially recognized campus groups accept any student who's interested.

But Bopp said few universities are likely to adopt the "all comers" policy that the Supreme Court gave approval to.

"They are not going to require the black students to accept white segregationists as members. They are not going to require the Muslim student group to accept Jews," Bopp said. "This defies common sense."

An "all comers" policy would be the end of the Greek system, Colby added, since fraternities and sororities choose their members.

Hastings officials have said groups like the Christian Legal Society are free to set their own membership requirements -- if they forgo university recognition and the funding and perquisites that go with it.

So for now, the Christian Legal Society meets in members' apartments instead of campus rooms. It posts its notices on a single basement billboard on campus set aside for community groups without school recognition. It misses crucial recruitment opportunities like the school's fair for campus groups. And without the lifeblood of university publicity and recognition, its numbers are dwindling.

But what it does have is another legal avenue.

Colby said the CLS will take the case back to lower courts to show the "all comers" policy was applied to it unfairly, instead of across the board for all groups. And, she said, it will argue that the school came up with the policy only as a pretext, after the court dispute began.

They likely will have plenty of company in court.

"The whole area of the balance of free exercise [of religion] and conscience rights and nondiscrimination is rippling through the legal world, and will continue to be," Saperstein said.