Ken Klukowski: Shocking Setback for Religious Freedom in Supreme Court
ACRU Senior Legal Analyst Ken Klukowski wrote this column appearing on Townhall.com on June 30, 2010.
On June 28, the Supreme Court handed down a deeply-disturbing decision in Christian Legal Society v. Martinez that sets back religious freedom in this country. This case was nothing more than the Court expressing outright hostility to a group because of its orthodox Christian beliefs.
Christian Legal Society (CLS) is an association of Christian lawyers and law students. In 2004 it was denied recognition as a student group at Hastings College of the Law (part of the University of California), making CLS the only group ever denied recognition by the school.
It was denied recognition because of Hastings’ nondiscrimination policy. That policy forbids discrimination on the basis of a number of factors such as race and gender, and includes sexual orientation.
CLS policy requires all its voting members to sign its statement of faith, covering core areas of orthodox Christian belief such as accepting the divine nature of Jesus Christ and that the Bible is the Word of God. Based on biblical teachings on sexuality, CLS also believes that sexual conduct is reserved for marital relationships, with marriage being the union of one man and one woman.
CLS believes that sex outside of marriage is sinful, and persistent, ongoing, unapologetic extramarital sex makes someone ineligible to be a voting member or a leader in CLS. Although CLS welcomes all people to attend its Bible studies and hear its messages, those living in such a way—including sexually-active gays—are ineligible to lead those Bible studies or have voting power to set policy or elect CLS officers.
For that reason, Hastings informed CLS that they could not be a student organization, with access to all the resources and forums that student organizations receive.
Hastings has over 60 active organizations, and CLS is the only one to ever be denied recognition. Eventually, CLS sued.
This case made it to the Supreme Court, where in a shocking decision the Court held 5-4 that there’s nothing wrong with Hastings’ decision.
Part of the outrage in this decision is that it was based on a lie. Despite this policy clearly being a policy that targets organizations with a biblical view of sexuality, the school’s dean said during a deposition that its policy was an “accept-all-comers” policy, that every group at the school is required to accept every student who wants to join.
That assertion is absurd on its face. That policy would allow Democrats to join the College Republicans and vote that the club should endorse Barack Obama. It would allow an NRA member to join the animal-rights groups and push for expanding hunting rights. It would allow for a supporter of Hamas to join the Jewish student organization, and gives speeches calling for the destruction of Israel.
Beyond that, the school’s nondiscrimination policy applies to every action of the school, including faculty and administrative actions. Does it even need to be pointed out that this policy clearly isn’t real, since an all-comers policy would require the school to hire as a professor anyone who applies, regardless of whether they have a college degree or a felony conviction?
No one with even a remote grasp of reality should believe that this is actually the school’s policy. Yet that’s exactly what the five justices in the majority signed on to.
Not only that, but the school admits that this policy is no longer its policy. The first time the policy was announced was conveniently right after this lawsuit started.
Hastings maintained that argument until it was time to go to the Supreme Court, where it changed its argument to now say that it has an accept-some-comers policy, that a group can exclude some people for neutral reasons, such as requiring faculty members to have a college degree (This policy presumably means that you can exclude people for any reason other than their views on sexuality.)
Nonetheless the Court majority, in an opinion written by Justice Ruth Bader Ginsburg, insisted on only considering the all-comers policy because CLS stipulated at the trial level that the all-comers policy is the one at issue.
This, despite the fact that as Justice Sam Alito argued in dissent about this policy (joined by the other conservative justices), “It is a policy that, as far as the record establishes, was in force only from the time when it was first disclosed by the former dean in July 2005 until Hastings filed its brief in this Court in March 2010.”
Justice Alito went on to correctly note that Supreme Court precedent holds that any facts stated in the original filing of a lawsuit, if not disputed by the other party, is automatically considered fact for any court considering the case. In the initial filing—called a complaint—CLS correctly described the real nondiscrimination policy.
Therefore the Court should have considered that policy. In doing so, Supreme Court precedent clearly establishes that this policy is viewpoint discrimination, with is always and automatically unconstitutional under the First Amendment. Groups that join together to promote a message or agenda are exercising a form of free speech called the right of expressive association. That is to say, these people join together to express their beliefs. One of the first major cases on expressive association, Healy v. James (where the Court upheld the right of a student group—Students for a Democratic Society—to be recognized on campus despite embracing a radical agenda that sometimes included violence), is directly on point to the CLS case. Under Healy and all the cases the Court has considered over the past 40 years, the policy at Hastings should have been struck down.
Even so, even if the Court were to accept that the all-comers policy is the real policy, it should still have been struck down. It still requires groups to accept students who disagree with CLS’s mission, and as such disrupts the right of CLS to express the views that CLS exists to express and advance.
Any way you look at this case, then, this case was wrongly decided.
As Justice Alito said for the conservative justices in his dissent, “I do not think it is an exaggeration to say that today’s decision is a serious setback for freedom of expression in this country… I can only hope that this decision will turn out to be an aberration.”
Monday was a sad day for religious freedom in the United States, which as the dissent notes, is one of the only countries in the world that respects religious viewpoints even when they are unpopular with parts of the current culture. CLS v. Martinez should be overruled.