Religious clubs face hurdles on campuses

Published: Tuesday, April 12 2011 11:00 p.m. MDT

CLS would allow anybody to come to their meetings at Hastings, but to be a member or a leader you had to sign a statement of belief. The statement excluded people who didn't believe in the Trinitarian concept of God (such as Mormons). An addition to the statement said, "In view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership."

Haddad applied for a $250 stipend to help some members of CLS to travel to a national conference. The request was approved. But then Haddad submitted the request for official recognition and the trouble started. After review by the school's general counsel, the university found CLS's statement of belief violated the institution's non-discrimination policy because it discriminated on the basis of sexual orientation. Hastings withdrew recognition of the group — and the money for the trip.

Like many other religious groups in similar situations at universities across the country, CLS sued Hastings to regain recognition. It looked like a fairly common case.

For example, in an almost identical case in the 7th Circuit, Christian Legal Society v. Walker, the CLS student chapter at Southern Illinois University Law School prevailed.

But somehow the Hastings case was different.

The university, according Brett Scharffs, a professor of law at BYU's J. Reuben Clark Law School, basically said that CLS was beyond the bounds of acceptable affiliation. "It felt like they were being singled out and discriminated against," Scharffs said.

But then two things happened.

First, the school's dean said that CLS had its recognition taken away, not because of its nondiscrimination policy, but because CLS was in violation of the university's "all-comers" policy.

An "all-comers" policy means that no group can exclude anyone who wants to participate. Ethnic background, country of origin, religion, sexual orientation, politics and opinions don't matter. All clubs had to be open to everybody.

Second, CLS told the court it agreed or stipulated that Hastings had the "all-comers" policy. Scharff said this agreement, made before the case went to the Supreme Court, was a blunder. It prevented CLS from making arguments based on Hasting's nondiscrimination policy — arguments that had been successful in the Southern Illinois University Law School case. It also prevented CLS from arguing that the "all-comers" policy was a pretext or just a litigation strategy made up after the fact. They had difficulty even talking about whether Hastings applied the "all-comers" policy fairly. (Before CLS sued the university, for example, the Hastings chapter of La Raza limited its membership to people of Hispanic descent. Other clubs were allowed similar exclusionary membership rules.)

They couldn't say anymore that a nondiscrimination policy was being used selectively against them. "The most powerful argument CLS had was: 'Yes, this is a discrimination case and we are the ones being discriminated against,'" Scharffs said.

Now that argument was gone and everything centered on the "all-comers" policy.

As the Christian Legal Society case made its way to the U.S. Supreme Court, CLS was left to argue that the university violated its constitutional right of freedom of association, which is the right to decide who will belong to any given group.

"If you allow the freedom to organize around beliefs, that naturally includes the freedom to exclude people who don't share that belief. They are two sides of the same coin," Lukianoff said.

Michael McConnell, director of the Stanford Constitutional Law Center and a member of the Deseret News Editorial Board, joined the case and argued for CLS before the Supreme Court.

But the majority of the Supreme Court wouldn't go past the "all-comers" agreement to examine whether Hastings evenly enforced the "all-comers" policy.

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