April 19, 2010 | by Chris Johnson
High court hears arguments in LGBT discrimination case

The issue of whether a religious student organization can deny full participation to LGBT people and maintain eligibility as an official group at a public university came before the U.S. Supreme Court on Monday.

The case of Christian Legal Society v. Martinez came before the high court after the University of California in Hastings denied the Hastings Christian Fellowship status as an official student group on the grounds that it prohibits LGBT people from taking positions within group leadership.

In the 2004 academic year, the school affiliated itself with the Christian Legal Society, which has bylaws saying that officers must abstain from “acts of the sinful nature” that includes “unrepentant participation in or advocacy of a sexually immoral lifestyle,” including homosexual behavior.

Consequently, the group has no right to meet on campus, can’t communicate through the law school’s newsletter or weekly e-mail announcement, and can’t receive school funding. The Hastings Christian Fellowship contends the school’s decision violates the group’s First Amendment rights of association and free speech.

Arguing on behalf of the Christian group before the Supreme Court was Michael McConnell, a law professor at Stanford Law School and former judge for the U.S. Circuit Court of Appeals for the Tenth Circuit. He said that the non-discrimination policy at the law school infringes on the beliefs of chapter members and is a “front assault on freedom of association.”

“A public forum for speech must be open and inclusive, but participants in the argument must be entitled to their own voice,” McConnell said.

He said the policy at the law school would mean that an NAACP chapter would “have to allow a racist skinhead” to participate in board meetings to maintain eligibility as an official school group.

On the other side of the argument and representing the college was Gregory Garre, a partner at the D.C.-based office of Latham & Watkin and a former solicitor general for President George W. Bush.

Garre said the non-discrimination policy the school has in place is neutral and doesn’t target any particular viewpoint or make a distinction between religious and non-religious speech.

“The whole purpose of the policy is to stay out of the argument and have an all-comers policy,” he said.

Garre said similar non-discrimination policies are “not uncommon and reasonable policy” and in place at many colleges, including Georgetown University Law School.

Indicating that LGBT people may in fact be interested in the Hastings Christian Fellowship, Garre noted the record shows that an out lesbian took part in the group’s activities before the group affiliated itself with the national organization.

“The record shows she participated in the discussions,” he said. “The officer of the group said he enjoyed having her there.”

During oral arguments before the Supreme Court, justices volleyed questions at both attorneys on issues ranging from whether the non-discrimination was applied consistently to all college groups to the tradition of giving schools deference in non-discrimination policies.

Associate Justice Antonin Scalia asked several questions about whether the school had been consistently applying its policy to all groups in at the college and whether the standards for the non-discrimination policy had morphed since the lawsuit began.

He said the current policy would allow Democrats to become leaders in a Republican group or allow atheists to conduct Bible classes in a Christian group.

Also expressing concern was Associate Justice Samuel Alito. He questioned whether current policy would enable vehemently anti-Muslim people to take over the leadership of a Muslim group at the school.

But Associate Justice Ruth Bader Ginsburg dismissed the notion that the policy could allow for takeover of some groups, calling such ideas “hypotheticals about sabotage takeover that haven’t happened.” She noted that the law school’s current policy enables diversity.

“Hastings takes the position that it favors diversity not just among the groups, but within the groups,” Ginsburg said.

Also demonstrative some apparent sympathy for the school’s policy was Associate Justice Sonia Sotomayor, who asked whether the policy actually prohibited the group from fulfilling in its mission or meant that the group was being “ostracized or excluded from the school.”

Following the oral arguments, Shannon Minter, legal director for the National Center of Lesbian Rights, told DC Agenda the proceedings went “fantastically well” for the defendants, although he said predicting how justices will rule was difficult.

“They recognized that the policy that’s in front of the court is all-comers policy,” Minter said. “It was just very encouraging that a lot of justices understand that that is, under their existing doctrine, a viewpoint-neutral policy.”

A number of national organizations weighed in both sides of the issue, filing friend-of-the-court briefs with plaintiffs and defendants.

In a statement, Jon Davidson, legal director of Lambda Legal, which filed a brief in support of the law school, said plaintiffs put forth arguments that are substantively ludicrous.

“No one is telling CLS that they can’t shut their doors to whomever they want,” Davidson said. “But they can’t do that if they expect university funds. It’s wrong of them to expect taxpayers and students to pick up the tab for engaging in discrimination against select Hastings’ students.”

Davidson called the lawsuit “another case of an anti-gay group claiming it deserves sympathy when its foot hurts due to kicking gay people in the head.”

But Mat Staver, a prominent social conservative and founder of the Liberty Counsel, said in a statement that the current policy jeopardizes First Amendment rights for the Christian group and potentially others.

“Of all places, one would think a public law school would respect the First Amendment,” he said. “The First Amendment is strong medicine to political correctness. If the government can drive out Christian viewpoints today, it can drive out any viewpoint tomorrow.”

A decision in the case is expected before the end of the current term for the Supreme Court in July.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

4 Comments
  • Who decides what constitutes “acts of the sinful nature” or what is “a sexually immoral lifestyle” ?
    We Christians can’t even agree among ourselves what is or is not sinful or immoral. Since Christians have a diversity of beliefs, why should not a Christian club accommodate those beliefs without adherence to only one narrow-minded, mean-spirited interpretation.

  • One does get tired of these so-called Christians talking about other people’s sinfulness and supposedly immoral lifestyles. Given the current make-up of the Supreme Court, I wouldn’t be surprised to see a ruling against the gay & lesbian students. One bill that needs to get moving in this Congress is Jarod Polis’ Student Non-Discrimination Act, because this will ease discrimination against gay & lesbian students and likewise prevent backward states like Virginia from passing laws that ban the existence of gay-straight student alliance organizations.
    On another front, I understand that Congress is going to take up the issue of full voting rights for Washington DC’s Congressional Representative. I fully support this idea, but I am also worried that the gay bashing religious right Republicans will use the occasion to tack on an amendment to the bill that calls for a public referendum on same-sex marriage in DC. If polls are to be believed, then a public vote by DC residents would result in a ban on same-sex marriage. Hopefully, this won’t happen, but these hate mongers are relentless and I fully expect to see this tactic when the bill is being argued.

  • This country did not become great because we excluded certain people from our lives. It became great and influential and powerful because of the exact opposite: we as a people demanded that we each INCLUDE as many others as possible who are different from us… to break down the US/THEM wall as much as possible, to reduce the wall to as low a wall as possible.

    I hope our Supreme Court Justices have the decency and wisdom to see that.

    Let alone the fact that millions of christians are L, G, B or T…. meaning they are not the “right” kind of christian for some “other” christians to want to associate with…

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