In the spring of 2004, Dina Haddad went to an administrator at Hastings, a law school in San Francisco, to get approval for a new campus club. Haddad was the vice president of the Hastings chapter of the Christian Legal Society — a national group of Christian lawyers, judges and law students that professed to "proclaim, love and serve Jesus Christ through the study and practice of law." Haddad wanted CLS to get recognized by Hastings as an official student organization. But when she met with the school's director of student services she was handed a copy of the university's nondiscrimination policy. The message was clear: Christian groups like CLS weren't welcome on campus.
That simple encounter was the beginning of a classic case of conflict between a university's nondiscrimination policies and a student religious group's freedom to define itself.
Six years later, on June 28, 2010, the Supreme Court of the United States decided the case of Christian Legal Society v. Martinez. The ruling gave public universities an almost bulletproof way to apply nondiscrimination policies that could force religious student groups on campus to admit not only gay students, but atheists and other people who have different religious views. But adopting the same policy as Hastings and enforcing it may have the effect of marginalizing some groups such as evangelicals and Orthodox Jewish congregations.
Supreme Court Justice Samuel Alito, in his dissent, called the majority decision of the court "a serious setback for freedom of expression in this country."
Universities accusing Christian groups of discrimination are not uncommon. The Foundation for Individual Rights in Education is a nonprofit educational foundation that monitors erosion of individual rights at America's universities. These are a few of the cases FIRE has followed over the last decade:
At Ball State University the Christian Student Foundation was required to put language into its constitution (that they would not discriminate on the basis of "religion" and "sexual orientation") that violated their biblical beliefs.
At Boise State University, student activity fee funding was denied for religious groups.
At California State University-San Bernardino, the Christian Student Association couldn't get recognition because they required members to ascribe to the group's religious faith.
At Cornell University, the Chi Alpha Christian Fellowship had its funding frozen after it asked an openly gay member to step down for refusing to accept the club's views on sex outside of marriage.
At Pennsylvania State University-University Park, the Young Americans for Freedom were initially denied recognition for religious discrimination because their constitution mentioned "God-given" rights.
Wright State University refused to recognize Campus Bible Fellowship because they required voting members to "accept Jesus Christ as their personal savior."
Ohio State University said that because the Muslim Student Association, InterVarsity Christian Fellowship, the Christian Graduate Student Alliance, Campus Crusade for Christ, Mosaic, Reformed Christian Students, the Christian Medical Dental Association, Student Christian Fellowship and International Friendships used religious criteria for determining membership and leadership, they were in violation of the university's policy against discrimination on basis of religion.
Greg Lukianoff is president of FIRE and considers himself a non-religious person. He said that when he began working at FIRE he noticed the disdain universities seemed to have for evangelicals. "This weird bending-over-backward to justify excluding or de-recognizing evangelical Christian groups has been one of the biggest surprises of my career, but I see it on a fairly routine basis."
The sticking point for the University of California, Hastings College of the Law was CLS's restrictions on membership.
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.
The court held in a 5-4 decision that the school did not violate CLS's rights because the "all-comers" policy applied equally to everybody. CLS, if it wanted to be recognized on campus, would have to abide by the "all-comers" policy and admit gay students — or anybody else — who did not share the society's core beliefs.
"It was a ruling that didn't bear any resemblance to what was actually occurring on the University of California at Hastings campus," said Frederick Mark Gedicks, another professor at BYU's law school. "What you really want to know is can the university apply a different rule to the Christian Legal Society than they apply to every other student society. And if that is what Hasting was trying to do, I would have said that is outrageous. If you want to let students discriminate on the basis of various factors because those factors define the essence of their organization, then you must let religious organizations discriminate too. So it is all or nothing. Everybody gets to discriminate or nobody gets to discriminate."
Adam Kissel, who is vice president of programs at FIRE, thinks it is too early to see the full impact of what the case is going to mean across campuses: "The decision came out probably too late last year for universities who wanted to implement an 'all-comers' policy to change up their student handbook in time for the fall."
Scharffs said, "Most universities just want to have a policy that will prevent them from being sued."
He said the case gives momentum to the policy because if a university puts an "all-comers" policy into place it could make them "judgment proof."
Lukianoff, however, thinks that an "all-comers" policy has its own problems. It may work for intramural sports, but falls down when you try to apply it to ideological groups. "I can't imagine it working in any other way than just being a total nightmare for every administrator on a campus. And I think that is one of the reasons you haven't seen them pop up too much," Lukinoff said. "You would have situations where the Republicans would show up at the College Democrats meetings just trying to find out what their strategy is for the year and then say, 'Hey, you can't kick me out. You have to accept everybody,' It will turn it into a complete free-for-all."
From case records, it appears that very few public universities probably less than 20 had an "all-comers" policy in place when the case was decided. The question is will other schools follow suit? Universities will have to balance their desires to use an "all-comers" policy to enforce nondiscrimination guidelines with the possibility, expressed by Justice Antonin Scalia during oral arguments, that it will allow "atheists not just to join (Christian groups), but to conduct Bible classes."
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