Freedom of All Student Groups at Stake in CLS case at Supreme Court
	By GREGORY S. BAYLOR
	Monday, April 19, 2010

Marci Hamilton's column for this site regarding Christian Legal Society v. Martinez states that this case will cause the Supreme Court to "wade into the culture wars morass." To be sure, this case arises out of a leftwing university's attack on a theologically orthodox religious group. However, the legal principles involved transcend the particular positions taken by the contending sides on religious and moral questions. At stake is the freedom of all student groups to choose leaders who share their respective missions, free from undue government pressure. For decades, counter-cultural groups have invoked the First Amendment to protect themselves from hostile university administrators. In the past, groups on the Left resisted officials they perceived to be conservative. Now the roles are reversed. Just as the courts vindicated the Constitution in those cases, they should do so now as well. There is no need for the Court to "choose sides" in the culture war. It simply needs to uphold the Constitution.

Professor Hamilton declares that "no one who engages in sex that occurs outside of marriage between a man and a woman may be an officer or prayer leader." This is simply incorrect. CLS stated as follows on pages 35-36 in its opening brief filed in the Supreme Court:

In accordance with traditional Christian teaching, the CLS chapter does not exclude all those who engage in what they regard as immoral conduct, sexual or otherwise: The CLS membership policy excludes only those who do so "unrepentantly," which is religion-speak for those who do not regard the conduct as wrong or sinful and resolve to cease acting in that manner. Thus, far from excluding people on the basis of orientation, the CLS Statement of Faith excludes them on the basis of a conjunction of conduct and the belief that the conduct is not wrong.

Given that the remainder of Professor Hamilton's column reveals that she read CLS's opening brief, this misstatement of CLS's position regarding human sexuality is surprising. Moreover, this approach to sexuality (i.e., differentiating among the experience of same-sex sexual attraction, the participation in same-sex sexual intimacy, and the persistent and unrepentant participation in such conduct) is not unique to CLS; many religious groups do likewise. To suggest that groups like CLS embrace and impose more categorical "rules" is misleading, and in a way that does not put CLS in a good light. Nuances matter when it comes to people, and they matter when it comes to language and the law.

The very next sentence of Professor Hamilton's column characterizes CLS's policies this way: "In other words, homosexuals need not apply." This is, at best, grossly misleading. Individuals who experience same-sex sexual attraction are eligible for membership and leadership in CLS. To the extent the word "homosexuals" is understood to include such persons, Professor Hamilton's assertion that "homosexuals need not apply" is false. To the extent that the word "homosexuals" includes people who do not engage unrepentantly in extramarital sexual behavior, Professor Hamilton's characterization of CLS's policies is also false.

Next Professor Hamilton states that "[b]ecause CLS discriminates against homosexuals, the Law School refused to recognize it as an official student group." This statement, ambiguous itself, ignores the other reason Hastings gave for denying CLS the valuable benefits of registered student organization status: the fact that it draws its leaders and voting members from among those who voluntarily sign its statement of faith, something Hastings deemed "religious discrimination." This case is not only about the emotionally and culturally explosive conflict over human sexual behavior, but also about the freedom of religious groups to consider religious belief (e.g., whether the Bible is inspired, whether Jesus is divine) in choosing their leaders.

Professor Hamilton next argues that "this case hardly seems worth the candle." I respectfully disagree. First, the column misstates the identity and value of the benefits Hastings confers on every group but CLS. It is undisputed that Hastings has denied CLS access to the customary means by which student organizations communicate with the student body, such as the annual Student Organizations Fair, the law school newsletter, bulletin boards, mailboxes, or weekly email announcements of activities. Although Hastings has offered to allow the CLS chapter to use meeting rooms as a matter of sufferance during the pendency of the litigation, Hastings has reserved the right to charge CLS a fee and to revoke the privilege of meeting at any time.

Professor Hamilton's suggestion that these benefits are not valuable is hard to square with their existence and their widespread use by registered student organizations. If these benefits were not valuable, why would Hastings go to the trouble and expense of creating them and conferring them upon student groups? Why would student groups regularly use them to pursue their diverse missions? I've spoken at a number of law schools this semester, and the leaders of various student groups have unanimously confirmed the importance of the various benefits universities provide to their groups.

The denial of such benefits is constitutionally significant. Healy v. James, Widmar v. Vincent, Rosenberger v. Rector of the University of Virginia, and numerous lower court decisions unambiguously hold that the denial of such benefits is a constitutionally cognizable injury. The fact that CLS is not utterly without alternative (but undeniably less effective) means of pursuing its mission and communicating its message is both legally irrelevant and factually unpersuasive. It is hard to imagine that one would so easily dismiss the harm suffered by a group if a law school withheld benefits from the group on the basis of some reason deemed less defensible, e.g., because the group included primarily African-American students. The bottom line is that it is simply false to suggest, as Professor Hamilton does, that this case is about CLS's desire for the Hastings "logo and imprimatur."

Moreover, Professor Hamilton does not consider the additional way that the courts have assessed the burdens that governments impose upon religious organizations through the application of religion and "sexual orientation" nondiscrimination rules. In addition to examining the benefits denied, courts assess the effect of complying with the rule in question. In this case, there can be little doubt that forcing CLS to have an atheist lead its Bible studies would undermine its ability to formulate and communicate its preferred message. Similarly, CLS would not be able to effectively convey its message regarding sexual morality if it were unable to remove a hypothetical Mark Sanford, Tiger Woods, or Eliot Spitzer from a leadership post.

Next, Professor Hamilton asserts that "this case is simply one more in a growing number of disputes in which religious organizations treat government funds as if they were entitlements." Religious groups, like all others, are "entitled" to the treatment that the Constitution mandates. And it is not wrong for religious groups to take action to vindicate their constitutionally protected rights. Professor Hamilton contends that such groups seek equal treatment "despite the Establishment Clause, the Constitution's separation of church and state," apparently suggesting that Hastings would violate that provision of the First Amendment by giving CLS access to its speech forum. But the Establishment Clause plainly does not require Hastings to withhold registered student organization status from CLS. The Court's decisions in Widmar and Rosenberger settled that question.

Professor Hamilton believes that it is somehow inappropriate – even "irrational" – for religious groups like CLS to seek access to speech forums "from government entities that have staked out positions that are diametrically opposed to their core religious beliefs." I honestly don't see why this is inappropriate. CLS wants to pursue its mission, and access to meeting space, funding, and communications mechanisms provided by the law school will help it do so. Its receipt of the benefits of recognition is entirely consistent with Hastings' stated purpose of encouraging a robust debate on a virtually unlimited set of topics. CLS's use of meeting space, funding, and communications mechanisms does not cause it to compromise its integrity in any way. In any event, it is one thing for a government entity to "stake out a position" with which a religious group disagrees; it is quite another for the government to use its power to pressure a religious group to conform its perspective to that of the government. That is precisely what Hastings is doing, and this goes to the core of the Free Speech Clause.

Professor Hamilton next contends that CLS's argument that Hastings violated its Free Speech Clause rights "is a real stretch." Again, I disagree. Professor Hamilton fails to address the significance of the Supreme Court's decision in Boy Scouts of America v. Dale, in which the Court held that the First Amendment forbids the application of a "sexual orientation" non-discrimination law to an organization that considers homosexual conduct immoral. In my opinion, her attempts to distinguish Rumsfeld v. FAIR and Rosenberger are unpersuasive. In Rumsfeld, the law schools lost because military recruiters would not become "members" of the law schools, undermining their claim that hosting the recruiters would substantially undermine their ability to communicate their position in favor of homosexual activism. The Court indicated that if the government were conditioning the receipt of a benefit upon a group's acceptance of members who oppose the group's mission, the Constitution would be violated. Hastings will not recognize CLS unless it allows those who reject its religious commitments not only to become "members," but also to become officers. Accordingly, the Rumsfeld decision supports CLS's position.

Professor Hamilton gets one thing right: she observes that Hastings is "openly opposed" to CLS's beliefs. To be sure, this observation is the starting point for her somewhat strange assertion that it is "irrational" for CLS to seek access to speech forum at a public law school that is committed to punishing CLS because of its disagreement with the prevailing orthodoxy. In any event, her observation about Hastings' opposition to CLS's beliefs gets to the heart of this case. It is not about Hastings preventing an invidious discriminator from denying protected minorities some valuable benefit. Instead, it is about Hastings attempting to use its considerable power to pressure a dissenting group to change its counter-cultural message. Under Professor Hamilton's logic, it would be "rational" for theologically orthodox Christian students to simply withdraw from Hastings entirely on the ground that the school opposes their viewpoint. Is this really the result a public law school subject to the First Amendment should desire?

Professor Hamilton asks whether CLS, in order to be "fully satisfied," needs the law school to entirely eliminate "sexual orientation" from its non-discrimination policy and wonders whether its civil rights action is just "stage one" in some larger "campaign" at the school. First, it bears noting that Hastings has declared that it forbids any group from invoking any reason to deny any student a membership or leadership position. CLS's lawsuit challenges this severe interference with the right of every group to formulate and communicate its own message. Second, neither CLS national nor any student chapter has mounted any sort of larger "campaign." On numerous campuses, CLS chapters were able to persuade administrators to respect their religious freedom. Once that happened, they did not take any additional actions regarding non-discrimination policies. They simply went about the business of pursuing their mission. Simply put, CLS does not object to law schools' recognition of Outlaw or any other group for that matter, but Outlaw objects to CLS.

Professor Hamilton claims that CLS "misstated the Law School's policy: That policy states that no organization is permitted to put its – or its members' – discriminatory beliefs into action." I am afraid that it is Professor Hamilton who misunderstands the law school's policy – and the nature of CLS's argument. At the outset, it is worth noting that Hastings recognized a religious student group with a statement of faith requirement prior to 2003 as well as a group (La Raza) whose by-laws mandated race and/or national origin discrimination in 2004. When Hastings withheld recognition from CLS in 2004, it invoked the religion and "sexual orientation" provisions of its written non-discrimination policy. CLS correctly observed that Hastings allowed other groups to organize around secular ideas – to exclude individuals who rejected their core principles. For example, it observed that the Hastings Democratic Caucus reserved the right to deny leadership positions to individuals who opposed Democratic Party principles. CLS correctly argued that this constituted discrimination on the basis of viewpoint – something presumptively unconstitutional. In an apparent acknowledgement of the power of this claim, Hastings subsequently claimed that no group could exclude any person for any reason. Of course, this shift simply magnified the scope and depth of Hastings' violation of the right of expressive association.

Professor Hamilton asserts that CLS's argument "rests heavily on the assumption that no Republican would ever want to join a Democratic student group, and vice-versa, on the apparent assumption that those organizations must always be politically pure." This assertion reflects a serious misunderstanding of CLS's argument. As noted above, CLS argued that it was viewpoint discriminatory for Hastings to allow political groups the freedom to deny leadership to individuals who rejected the group's political views while denying religious groups the freedom to deny leadership to individuals who rejected the group's religious views. The power of that argument does not rest upon any assertion that a Republican would never want to join a Democratic club, or on the assertion that there would never be a circumstance in which a Democratic club might choose to allow a registered Republican to serve as a leader or member. The argument instead rests upon the undeniable observation that Hastings acknowledged the freedom of political groups while denying the freedom of religious groups.

Professor Hamilton concludes her column by arguing that CLS's pursuit of equal treatment contradicts what she characterizes as the traditional "Republican Party" view that religious organizations should not accept government benefits. CLS is not the Republican Party and is not a Republican group. As such, it is unconcerned with whether its effort to vindicate its constitutional rights is consistent with what Professor Hamilton characterizes as Republican Party principles. Second, I acknowledge that one could argue whether a public university should extract activities fees from its students in order to support student groups. However, even if one opposes such a system, it is not inconsistent to argue that if such a system exists, it should be administered fairly. At Hastings, it has not been administered fairly, and that is what CLS has challenged.

Gregory S. Baylor is senior legal counsel with the Alliance Defense Fund, which is jointly defending the CLS chapter at Hastings College of the Law together with the CLS Center for Law & Religious Freedom before the U.S. Supreme Court.