The Supreme Court and the Christian Legal Society

An important and interesting Supreme Court ruling was decided on June 28th, 2010 concerning the Hastings College of Law, a school within the University of California, and a student organization called the Christian Legal Society.  The case seemed important enough to me that I took the time to read the 85 page majority opinion of the court and dissenting opinion.  I thought it would be helpful to summarize in very friendly laymen terms what I consider to be the key elements of the case and make some brief commentary.

The Hastings College of Law has established a means to officially recognize student groups on campus called the “Registered Student Organization” (RSO).  Any student group who wishes to enjoy the benefits offered by Hastings must submit an application for inclusion in the RSO.  Benefits include, but are not limited to, the availability of campus meeting space and materials, the use of the college’s means of communicating agendas, meetings, etc, and at times the access to special funds for traveling and other purposes for student groups.  When CLS applied for RSO recognition, their application was rejected on the grounds that it violated the school’s Nondiscrimination Policy.  They were the first student group in the school’s history to be turned down.  Specifically, the reason for the rejection was the requirement for all CLS members to sign a Statement of Faith which among other things, rejects homosexuality as immoral behavior.  The Supreme Court of the United States upheld the ruling from the lower courts that Hastings did not violate the First and Fourth Amendment by refusing CSL a RSO status.  

As I suspect many cases at this level operate, the thrust of the decision ultimately falls on how the court interprets one critical factor of the case.  That critical factor in this instance is the difference between the Nondiscrimination Policy and the alleged “All-Comers Policy” that Hastings asserted has been in place all along.  Although the two seem to be fairly identical in nature, they actually convey quite different things.  The Nondiscrimination Policy offered by Hastings falls in line with many other colleges and schools in terms of what it is meant to protect, with a few differences.  The “All-Comers” policy on the other hand is fairly unique to Hastings and asserts that every student organization must accept anyone into their student group.  Period.  Now, here is where things get interesting.

The Supreme Court, despite the request of CLS, did not consider the Nondiscrimination Policy in their ruling.  Only Justice Stephens attempted to bring that particular policy into his ruling, ineffectively.  Instead, the Court considered only the All-Comers policy because the policy was joint stipulated by both Hastings and CLS.  So, according to the majority opinion, CLS cannot joint stipulate to the fact of the All-Comers policy and then try to circumvent said policy after the proceedings have begun.  Thus, the majority opinion is written by only taking into consideration the All-Comers policy and if Hasting’s actions constitutionally violated that policy alone. 

Justice Alito, who wrote the dissenting opinion, disagrees with the majority opinion concerning the denial of considering the Nondiscrimination Policy.  Although he agrees that join stipulation is a crucial thing that must be upheld, he disagrees with the full implications of this particular joint stipulation in the arena of the All-Comers Policy.  Listen to what Alito says:

“I agree that the parties must be held to their Joint Stipulation, but the terms of the stipulation should be respected.  What was admitted in the Joint Stipulation filed in December 2005 is that Hastings had an accept-all-comers policy.  CLS did not stipulate that its application had been denied more than a year earlier pursuant to such a policy. . .Indeed the parties did not even stipulate that the accept-all-comers policy existed in the fall of 2004.”

Thus, according to Alito, if the Court were to recognize the absence of the apparent all-comers policy in 2004 and instead recognize the Nondiscrimination Policy in its stead, the outcome of the opinion would have surely been different.  The reason is because basic Nondiscrimination Policies have been routinely upheld by the courts to mean something very different than just “anyone can join, anyone can participate.”  The Court has previously recognized that “the forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints.”  Expressive association is the key phrase there.  For these reasons, Alito almost humorously summarizes by saying, “it is no wonder that the Court makes no attempt to defend the constitutionality of the Nondiscrimination Policy.”

So, at the end of the day the Court’s decision is riding on the legitimacy of their refusal to take into consideration the Nondiscrimination Policy and the date of the awareness of the so-called “all comers” policy.  If the All-Comers policy is accepted and the Nondiscrimination policy is not considered, as the majority has done, then it is difficult to argue with the decision.  If the reverse is true, then it would be difficult to uphold the decision.

As for me, Hastings seems to be more concerned about religion than they are the actual historical enforcement of an all-comers policy.  Their decision to create and stick to this policy might leave them with unwanted results.  Already, in order to consistently apply the policy and avoid further legal entanglements, school officials have been meeting all RSO groups to make sure they begin rigidly adhering to the standard that has been set; a standard that all civil society understands is not only impractical, but harmful.  The school, by definition, must now allow those who are in favor of using animals for cosmetic testing to be included in an animal rights group.  A hard conservative must be allowed in a pro-democrat organization.  And so on.  Headaches could abound for everyone and it is primarily because the school does not want a conservative, Christian based organization doing what it does on campus.  It is the classic “pick any color you want so long as it is black” motto.

How will this decision affect the lower courts?  Some Christian commentators are concerned that lower courts could take this ruling and run with it in ways that are not consistent with the specific issues of this case.  Christian groups could be denied recognized access to organizations because of the Supreme Court citing over and above the actual policies in place at the school. 

There are other equally interesting aspects to this case that I don’t have time to write about here, such as the argument that a public school should not be considered the same as the public square, or the differences between conduct and status.  Regardless, I think one clear aspect of this case is the continued scrutiny of religion among the people and if this ruling has any future influence on other judges and courts, times will continue to become more difficult for the conservative evangelical Christian who operates based on the words of Scripture.  Of course, that is exactly what Scripture tells us to expect.               

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