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Michael Kessler Michael Kessler is managing director of the Berkley Center for Religion, Peace, and World Affairs at Georgetown University, a visiting assistant professor of Government, and an adjunct professor of...

Ethical values, based on religion and reason, shape the kinds of law and policy citizens desire to govern their community. At the same time, the law shapes how we become moral persons and the kinds of communities we hope to build. Law, morality, and religion are intertwined. Yet ideologically-charged policy debates, the grittiness of political compromise, and the impersonal rule of law often don't correlate with--and can even damage--our deepest religious and moral commitments. We talk about law achieving a just order, but we too often struggle to develop notions of justice that rise beyond "efficiency" measured by markets and the "balancing" of preferences. Just Law and Religion rejects the cynic's reduction of law and politics to an amoral arena of clashing interests. It recognizes the crucial role of law and policy in achieving social stability, but focuses on how fundamental rights and moral values both shape and are shaped by contemporary legal and political institutions. Just Law and Religion will take the "moral temperature" of current events and issues across a vast array of political institutions, law, and culture in order to comprehend the ethical stakes, and the promise and perils, of our common life. Just Law and Religion asserts that law and politics can only be âœjust❠when they concede there is more to human value and meaning than legal and political institutions can achieve.

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>> more

Religious freedom to exclude

June 28, 2010

The Supreme Court handed down its long-awaited opinion in Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez (CLS). The decision may go largely unnoticed since it arrived on the first day of future Justice Kagan's confirmation hearings and, McDonald v. Chicago, another decision released the same day, is gaining much more attention after it extended the Second Amendment to limit state gun control laws. Yet the CLS decision hits all the fault lines of the clash between non-discrimination requirements and claims about religious freedom. Welcome to the future of the so-called "culture wars."
The decision is complicated and I'll confess to a lingering unease about each of the four opinions.

Likewise, while the case involves religious freedom and non-discrimination issues, the majority opinion sidesteps most of these major issues. Instead, Justice Ginsburg crafted a constrained examination of whether or not Hastings could legitimately limit the Christian Legal Society's access to the limited public forum it had created (that is, to be recognized with status as a registered student organization), since CLS had refused to open its membership to all students.

At a simple level, the case is straightforward: a small group of students at a state-funded university wanted to form a religiously-based association (associated and chartered by a national organization) and have it recognized as a student organization, thereby opening access to funds (very minimal), use of space, access to channels for official communications, and the right to use the Hastings "branding" and logo.

As a religious group formed for Christians of an evangelical persuasion, they shockingly wanted to associate around a common set of beliefs (the CLS national organization has a statement of faith). As a morally conservative organization, the requirements included restrictions on sexual activity. As the majority described:

CLS chapters must adopt bylaws that...require members and officers to sign a "Statement of Faith" and to conduct their lives in accord with prescribed principles...Among those tenets is the belief that sexual activity should not occur outside of marriage between a man and a woman; CLS thus interprets its bylaws to exclude from affiliation anyone who engages in "unrepentant homosexual conduct."

Hastings, on the other hand, had a non-discrimination policy that stated:

[Hastings] is committed to a policy against legally impermissible, arbitrary or unreasonable discriminatory practices. All groups, including administration, faculty, student governments, [Hastings]-owned student residence facilities and programs sponsored by [Hastings], are governed by this policy of nondiscrimination. [Hasting's] policy on nondiscriminationis to comply fully with applicable law. "[Hastings] shall not discriminate unlawfully on thebasis of race, color, religion, national origin, ancestry,disability, age, sex or sexual orientation."

The right of educational institutions to create non-discrimination policies, while contested, has generally been upheld as long as they meet certain criteria. Under Justice Ginsburg's pen, the doctrine is clear and she quickly judged that what Hastings did is without doubt constitutional. As she stated, the Court has consistently prohibited public universities from excluding a student organization's access to a school-sponsored forum (like being a registered student organization) on the basis of their viewpoint. Reiterating this point a number of times, Justice Ginsburg summarized established doctrine: "the State may not exclude speech where its distinction is not reasonable in light of the purpose served by the [limited public] forum...nor may it discriminate against speech on the basis of . . . viewpoint."

The problem was, CLS was a student group wanting recognition as an official organization while associating around a set of beliefs and mores. Some of those principles inherently discriminated on the basis of an issue that was specifically forbidden by the nondiscrimination policy.

The Court refused to consider the legitimacy of the non-discrimination policy itself, thereby preserving the right of educational institutions to define neutral and objective nondiscrimination policies that ensure equal access.

Instead, Ginsburg narrowed in to specifically address whether it was permissible for the school to require RSOs to "accept all comers" and not limit membership on the basis of belief. As Justice Ginsburg stated, "Hastings interprets the Nondiscrimination Policy, as it relates to the RSO program, to mandate acceptance of all comers: School-approved groups must 'allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her] status or beliefs.'" This, according to the majority, is deemed a "reasonable" limitation that does not amount to viewpoint discrimination. At an abstract level, this result seems reasonable.

Yet, in this particular instance, problems persist. Apparently, it was only after the lawsuit was filed that the so-called "all comers" requirement was imposed, formulated (for the trial deposition) as part of the law school Dean's interpretation of the non-discrimination policy and not previously explicitly stated as binding on any RSO.

And, as Justice Alito pointed out, up through 2005, a wide range of student organizations had requirements in their bylaws limiting participation to those who adopt specific beliefs:

the record is replete with evidence that, at least until Dean Kane unveiled the accept-all-comers policy in July 2005, Hastings routinely registered student groups with bylaws limiting membership and leadership positions to those who agreed with the groups' viewpoints. For example, the bylaws of the Hastings Democratic Caucus provided that "any full-time student at Hastings may become a member of HDC so long as they do not exhibit a consistent disregard and lack of respect for the objective of the organization as stated in Article 3, Section 1." ...The constitution of the Association of Trial Lawyers of America at Hastings provided that every member must "adhere to the objectives of the Student Chapter as well as the mission of ATLA." A student could become a member of the Vietnamese American Law Society so long as the student did not "exhibit a consistent disregard and lack of respect for the objective of the organization," which centers on a "celebrat[ion] [of] Vietnamese culture." Silenced Right limited voting membership to students who "are committed" to the group's "mission" of "spread[ing] the pro-life message." La Raza limited voting membership to "students of Raza background."

These facts will fuel the fires of concern that Hastings had it out for the conservative Christians. The possibility of "pretextual hostility" against a religious group is here not improbable--indeed, the case is remanded back to the lower court to deal with this claim. The evidence is significant, at least as Justice Alito depicts it.

Worse still, was that after CLS was denied status as an RSO, and thus shut out of formal affiliation, they were in principle still allowed to associate, act as a group, and use facilities (if space was available). All would have been technically well, except, as Justice Alito strenuously pointed out, every time the group requested space, the Director of Hastings' Office of Student Services, who had previously denied their request for affiliation, apparently sat on the email request until after the date they requested had passed. I've been in universities most of my life, so it is not at all shocking that a university administrator didn't promptly answer an email, especially to a student, but the combined effect of the denial and the shut-out certainly exacerbated the situation and understandably exacerbated a tense situation.

But the deeper problems this case confronted will continue to fuel fires of discontent and conflict. Any statement of a shared sets of beliefs will necessarily divide student bodies. Is the University constrained to only recognize those groups that espouse those collective opinions that are banal enough to not run afoul of policies meant to promote equal access and toleration? What kind of an robust and plural academic community is that? What society will flourish--even survive--if our associational ties are so weak and dispirited?

More troubling still, for me, is the implication that religious groups (or any group founded around common principles) who take seriously their commitments--(and let me plead the caveat: I don't share these mores and beliefs)--may be locked out of association in their student environments if those beliefs are unpalatable to others. Surely the educational mission of any law school is only fully robust when persons of similar persuasions are given the formal opportunity to come together to support each other under the banner of their particular commitments, even while they participate in a larger, diverse community. That's true accommodation of plural opinions, beliefs, and conscience-based practices. I disagree with some of their positions, but my freedom and safety are much more threatened by stifling the group's existence than by their forming a recognized group and participating in the community.

I wouldn't particularly want to pay for what I consider others' discriminatory practices, but in this case it's not a funding issue (since the funding available to student groups is de minimis). Far more important is whether the student group can gain the formal recognition that they are a legitimate part of the community.

And I'm not convinced by Justice Ginsburg's "Facebook changes everything" argument. One way she tries to soften the blow for the group's denial as an RSO is to point out that with the advent of "substantial alternative channels that remain open for CLS-student communication," the need for "official" channels that comes with RSO status is mitigated. The CLS group can exist apart from formal RSO status, and the students can informally host a Facebook site and yahoo message board for broadcasting CLS activities and communicate with the Hastings community just as effectively. This may be true to an extent. The reality is, many students don't read official emails. But that's hardly a constitutionally-viable support for denying access. Facebook has not relegated the demands of the First Amendment to history, at least not in this regard.

At the very same time, this particular CLS group wanted to form an association that had as part of its inherent identity a set of restrictions on membership that necessarily excluded other members of the community. This was in direct conflict with the school's nondiscrimination policy. It would be hard to be sympathetic to a group of students wanting formal recognition for a Hastings College of Law KKK chapter. Some want to draw parallels between ethnic/racial discrimination and discrimination regarding sexual identity. I tend to think these arguments are strong and not yet adequately met with counterarguments. And the underlying fact remains: if the non-discrimination policy is constitutional, then any RSO seemingly would have to abide, as the majority has concluded.

This result is required given current case law, even if the Court had taken seriously CLS's claim that their religiously-motivated beliefs and restrictions were especially (uniquely?) restricted by the Hasting's "all-comers" policy. As Justice Ginsburg said:

Hastings' requirement that student groups accept all comers, we are satisfied, "is justified without reference to the content [or viewpoint] of the regulated speech." The Law School's policy aims at the act of rejecting would-be group members without reference to the reasons motivating that behavior: Hastings' "desire to redress th[e] perceived harms" of exclusionary membership policies "provides an adequate explanation for its [all comers condition] over and above mere disagreement with [any student group's] beliefs or biases."

Did you catch that? What's at issue is not the special status of the motivations and beliefs--religious or otherwise--and how the nondiscrimination requirements may pose harmful burdens on CLS. Instead, it's whether or not the neutral and generally applicable requirement that any RSO not act in an exclusory fashion is permissible. Take a moment to ponder this irony: Justice Ginsburg, the liberal, is citing back to the conservative minority the nefarious principle that Justice Scalia himself penned in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)! Religiously-motivated acts, regardless of the free exercise clause of the 1st Amendment, do not exempt one from neutral and generally-applicable laws. The burden imposed on the CLS students--to act in spite of their religious beliefs so as to not discriminate--is merely incidental and therefore an acceptable burden. That is the Scalia-Smith principle, with the act-belief distinction, applied in a slightly different context. Ginsburg might have simply said: As Justice Scalia told us in 1990, religion isn't a trump card, so get over it.

And therein lies the deeply distressing result of this case, whichever way it came out. In the messiness of diverse communities, real commitments to tolerance, equality, and openness are going to collide headlong with real commitments to specific beliefs and practices that exclude other members of the larger community. So long as associations and religious communities are formed through actual commitments, then some of us will be excluded from these groups. Unless we all commit to preserving and respecting each others' freedoms, regardless of whether we agree (or despise) their opinions, beliefs, and practices, there are no winners.

Such freedom would require those who personally condemn looser sexual mores to tolerate the persons in their midst who believe and act differently, even while arguing for alternative practices and principles. And such freedom would require those with more progressive views to tolerate and be open to those who disagree on the basis of different starting principles and beliefs.

Freedom is uncomfortable, especially when it requires openness to those views, beliefs, and practices we find foreign or wrong. However, the alternative is stifled liberty and stunted lives. May the human tendency to tyranny in its many forms be stamped out by the spirit of freedom. Even freedom that wants to express itself through associations bonded by belief.

Happy Fourth of July.