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Marci A. Hamilton

Must a Public Law School Recognize a Christian Group That Bars Gay Persons From Being Officers or Prayer Leaders? The Supreme Court Will Decide


Thursday, March 4, 2010

In April, the Supreme Court will wade into the culture wars morass, with the oral argument in the case of Christian Legal Society Chapter of University of California, Hastings College of Law v. Martinez.

On one side are the members of the Law School's chapter of the Christian Legal Society (CLS), who demand official recognition as a student group, as well as school funds for their activities.

On the other side is the Law School, joined by OUTLAW (an organization supporting homosexual students). The Law School is denying recognition to the organization because its rules violate the University's anti-discrimination policies.

Putting the doctrinal issues aside, and I will address them shortly, this is an iconic clash of contemporary cultures.

The Organization's Rules, the Law School's Anti-Discrimination Policy, and the Low Practical Stakes Here

Under CLS's rules, which reflect their religious beliefs, anyone can attend their meetings, but no one who engages in sex that occurs outside of marriage between a man and a woman may be an officer or prayer leader. In other words, homosexuals need not apply. There is no doubt that these are sincere beliefs. CLS also has been active in the states in trying to secure the right of landlords to refuse to rent to homosexual couples and to unmarried couples.

The Law School has a policy of non-discrimination, which encompasses a number of categories, including sexual orientation. Because CLS discriminates against homosexuals, the Law School refused to recognize it as an official student group.

At the level of basic common sense, this case hardly seems worth the candle. Registered student organizations at the Law School can use the Hastings logo and name, employ certain means of communicating, access certain law school facilities, and receive some funds. Non-registered organizations, however, still have access to rooms and bulletin boards and other means of communication, not to mention the Internet, which dramatically reduces barriers to promoting any group's message. So CLS is, at base, fighting over a logo – one that represents the school's imprimatur – and relatively small sums of money.

Ultimately, this case is simply one more in a growing number of disputes in which religious organizations treat government funds as if they were entitlements. The logic goes this way: If others are receiving government funds, the religious groups must be permitted to receive them as well, despite the Establishment Clause, the Constitution's separation of church and state, and the fact that they would be taking money from government entities that have staked out positions that are diametrically opposed to their core religious beliefs.

Why CLS's Contentions Are a Poor Fit with the Court's Free Speech Precedents

CLS is attempting to shoehorn the case into the Court's free speech cases, but that is a real stretch. The school is not blocking CLS's recognition based on the content of its message, as was argued to be the case in Rosenberger v. Rectors of the University of Virginia. To the contrary, Hastings is not engaging in content-based suppression and CLS continues to have the right and capacity to get its anti-homosexual message out. Moreover, the rule being applied to CLS is a neutral rule that is applied to all student organizations, regardless of belief. Under the rule, the KKK (which surely would not permit minorities, Catholics, or Jews to be leaders) would not be permitted to receive use of Hastings's logo, either. Moreover, where is the true burden on speech here? If the group discriminates, the law school is neither banning nor silencing the group; rather, it is simply refusing to place its imprimatur on it, because it is engaging in prohibited conduct.

CLS has an even weaker First Amendment argument than did the law schools in Rumsfeld v. FAIR – which objected to the military's "Don't ask, don't tell" policy and therefore tried to exclude military recruiters from campus. Congress passed the Solomon Amendment, though, which required schools to either host military recruiters or lose their federal funding – and the schools sued. Ultimately, the Court held that there was no free speech violation, because the policy did not interfere with the schools' message: Even though the schools would have to host the military recruiters – that is, provide them with rooms and means of communicating with the students – the schools could still affirmatively broadcast their objection to the military's policies.

Under that reasoning, CLS has an even weaker argument than the law schools did. It is not being forced to host or carry message with which it disagrees. Indeed, the FAIR reasoning brings into question why CLS would even want the Law School's logo and imprimatur in the first place. The Law School stands for the proposition that every person deserves equal treatment, regardless of sexual orientation or other characteristics. That proposition is in sharp opposition to CLS's own core and self-defining beliefs. And it seems outright irrational for CLS to seek the imprimatur of an institution that is so openly opposed to CLS's exclusionary beliefs.

Indeed, one has to wonder: in order for CLS to be fully satisfied, wouldn't the group need the Law School to both recognize it and drop its anti-discrimination policy insofar as it protects homosexuals? So is this just "stage one" in their campaign at the school?

The argument that CLS makes in its opening brief to the Court is that other groups are "permitted to maintain their identity, cohesion, and message by limiting their leadership and membership to students who share their core beliefs." Thus, OUTLAW "reserves the right to remove any officer who 'work[s] against the spirit of the organization's goals and objectives.'" Yet, CLS has misstated the Law School's policy: That policy states that no organization is permitted to put its – or its members' – discriminatory beliefs into action. It does not forbid any group from believing or proclaiming whatever it chooses. But to obtain the school's logo and imprimatur, it cannot engage in discrimination.

It is also clear that exclusion is the issue and not content- or viewpoint-based speech discrimination, because the policy wasn't created to affect CLS or any religious group; it applies equally to all law student groups. So if OUTLAW refused to permit heterosexual leaders, or if a feminist organization prohibited male leaders, both would be denied registration by the Law School in precisely the same way that CLS has been denied it.

A Case that Reflects Core Issues Within the Troubled Republican Party

CLS also 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 – and hence, all student groups must have the right to police their own membership in a discriminatory way. According to CLS, it is just acting like any of these "pure" political organizations that obviously would despise and reject anyone who was not in the same Party. But the assumption that there would never be political crossover is just silly, particularly in light of the recent election of President Obama by Democrats and Republicans alike, and in light of the rise of Independents who are perfectly willing to migrate between candidates and policies according to their own lights. Men have worked with feminists, heterosexuals have supported homosexual causes, and students routinely switch between Republican and Democrat parties and views as their political views mature in college.

This case is also a microcosm of what has gone so wrong in the Republican Party. There was a time when the Republican Party and "conservatives" were the monitors of government spending. They believed in limited government, balanced budgets, and fiscal responsibility. They also acted on those principles. Those were the years when Republicans had a transformative vision.

In those years, too, powerful religious groups and leaders on the right side of the political spectrum publicly and vehemently rejected government funding for religious organizations. For example, Moral Majority founder Jerry Falwell said on Beliefnet in 2001:

"I have pastored the same church 45 years, and I've served as chancellor of Liberty University and was the founder for the past 30 years and...we have never accepted any government grants or funding, whether federal, state, or local. We have done that by design so we could never be challenged regarding our philosophy and our practices. It is doubtful that we will ever apply for any assistance under the faith-based initiatives, as Mr. Bush has proposed them. I may change that once I have seen enough years of safety and consistency with no strings attached, but at the present moment I would not want to put any of the Jerry Falwell Ministries in a position where we might be subservient to a future Bill Clinton, God forbid."

Pat Robertson also rejected public funding of religious organizations, on the theory that there was no way to ensure that the money only went to Christians, Jews, and Muslims, but not cults.

But once the Republican Party was in power, these leaders' concerns apparently vanished. Robertson accepted over a million dollars of government funding from Bush's faith-based initiative. According to David John Marley's 2007 book, Pat Robertson: An American Life, "Despite his concerns over certain aspects of the [faith-based initiative] program, Robertson's Operation Blessing was one of the first groups to receive federal funding. In October 2002 the group won a $500,000 grant that was renewable for three years. Robertson never criticized the program after the money started rolling in."

Around the same time, conservative religious groups started to line up for government funds wherever they were available, whether from the federal government for mission, or from universities. Instead of being concerned about the strings attached to the funds, and about having their message diluted, they adopted a position, like CLS's, that if anyone else gets funds, then they are entitled to funds as well.

When religious groups abandon their principles because government funding is available from their cronies, and invest in expensive appellate litigation to obtain whatever government benefits they seek, one can hardly expect that everyone else will not line up, too. So much for the Republican vision.

If anyone needed proof that the Republican Party has fundamentally lost its way, and that it desperately needs someone with vision to return it to its principled base (as opposed to its current so-called "base"), this case is it.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is In the interest of full disclosure, she represents clergy abuse victims and other victims of childhood sexual abuse on constitutional and federal statutory issues, including one who is currently in litigation against the Holy See.

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