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By Lisa Keen
When Concerned Women of America, the Boy Scouts, and Evangelical Scholars, line up on one side of a legal case, one might naturally assume that gay groups are lined up on the other side.
Christian Legal Society v. Martinez is not that case – at least not perfectly.
A group called Gays and Lesbians for Individual Liberty has submitted a friend-of-the-court brief in support of a religious student group’s effort to receive public benefits while refusing full and equal membership to gays.
It is the latest in a series of cases brought by conservative religious groups who challenge non-discrimination policies that prohibit discrimination based on sexual orientation. They do so by claiming that the policies interfere with the free exercise of their religious beliefs – beliefs they say require discrimination against gay people.
It is also the first of such cases to be dealt with by the conservative-leaning court of Chief Justice John Roberts Jr.
And it is a case that revisits a virtual golden oldies hit-list of gay-related decisions from the Supreme Court: Hurley v. Irish-American Gay, Boy Scouts v. Dale, Gay Lib v. University of Missouri, NEA v. Finley and Rosenberger v. UVA.
In Christian Legal v. Martinez, a Christian law students’ group contests a decision by the University of California’s Hastings College of Law, headed currently by acting chancellor Leo Martinez. The case also includes a gay student group, OutLaw, at the same school as a party to the defense.
The Christian Legal Society is a national group with chapters at various universities and elsewhere with the aim of helping law students integrate their Christian beliefs with their legal work. According to the group’s petition to the Supreme Court, the group also “promotes justice, religious liberty and biblical conflict resolution.”
The group does not prohibit anyone from attending its meetings, however, it requires that its officers and voting members “affirm their commitment to the group’s core beliefs by signing the national CLS Statement of Faith and pledging to live their lives accordingly,” explained the petition. And it explicitly prohibits from offices and voting anyone who engages in “fornication, adultery and homosexual conduct.”
Like many universities, UC-Hastings College has a policy against discrimination based on a wide variety of reasons, including religion and sexual orientation. When CLS applied for official status at the school, seeking to enjoy the various benefits that status provides, Hastings officials rejected its application, noting that the group appeared to violate both the religion and sexual orientation aspects of the non-discrimination policy. When CLS tried to parse its policy by noting that it allows anyone to attend its meetings – just not vote or take leadership roles – the university parsed its non-discrimination policy saying it applies to enable all students to be members and full participants of any group.
Pointing to two historic Supreme Court losses for gays, attorneys for Christian Legal argue the group has a constitutional right to “control their own message and identity.” They say the denial of the group’s status as official campus groups violates its First Amendment constitutional rights to speech, association, and to free exercise of their religion. And this is where the old gay cases come in.
The group’s attorneys cite the 1995 Supreme Court decision Hurley v. Irish-American Gay in which the high court said a St. Patrick’s Day parade organizer in Boston could exclude an openly gay contingent. And they cite Boy Scouts v. Dale, a 2000 decision in which the high court said the Boy Scouts had a First Amendment right to expect its belief that homosexuality is not “morally straight” warrants greater deference than the state of New Jersey’s human rights law prohibiting sexual orientation discrimination.
To make its First Amendment speech argument, Christian Legal drags out numerous other cases in which federal appeals courts have ruled that universities could not deny campus recognition to gay groups – cases such as Gay Student Services v. Texas A & M, from the 5th Circuit in 1984, Gay Lib v. University of Missouri, from the 8th Circuit in 1977 and even an obscure case, Gay Students v. University of New Hampshire, from the 1st Circuit in 1976.
Not surprisingly, Evangelical Scholars and Evangelicals for Social Action submitted a brief arguing, bluntly, “Evangelical Christian churches and organizations cannot comply with such a non-discrimination policy.”
“Not only (Christian Legal), but all other evangelical organizations which similarly hold the Bible as the inspired Word of God, will find it impossible to comply with a non-discrimination policy like the one in the case at bar, and thus they will be forced to suffer exclusion from recognized status as a student organization,” says the Evangelical groups.
Gays and Lesbians for Individual Liberty agrees. While GLIL is not a well known national gay litigation group, it is a national group that supports the civil rights of gay people and has been in existence since 1991. And while GLIL does not agree with Christian Legal’s views regarding homosexuality, its brief says Christian Legal’s views “are entitled to First Amendment protection, including protection of (Christian Legal’s) right to preserve the integrity of its message by excluding non-adherents.”
GLIL’s brief also recalls earlier cases in which universities have tried to ban gay student groups and parades that have sought to ban gay contingents.
“It is not the role of the government of a free people to cleanse speech and thought of all actual or perceived biases by forcing expressive groups to relinquish control of their messages,” said the GLIL, echoing the Supreme Court’s 1995 decision in Hurley.
Gay & Lesbian Advocates & Defenders, which is a well-known gay litigation group, defended the right of the gay contingent in Hurley. And GLAD, along with another well-known gay litigation group – Lambda Legal Defense and Education Fund – filed a friend-of-the-court-brief in support of the UC-Hastings College position.
The university, says GLAD and Lambda, is not trying to force Christian Legal to change its views concerning homosexuality or to accept members that disagree with its views.
“Hastings is simply conditioning access to modest public funding and other benefits on compliance with a general non-discrimination policy applicable to all student groups,” writes GLAD and Lambda.
“Like every other student group on Hastings’ campus, it too has a choice,” says GLAD and Lambda. “It can adhere to Hastings’ general non-discrimination policy or forego school funding.”
The federal district court in San Francisco and the 9th Circuit U.S. Court of Appeals agreed with that logic and ruled for the university and OutLaw. Christian Legal, with the aid of the right-wing Alliance Defense Fund, has appealed to the U.S. Supreme Court. And in agreeing to hear that appeal, at least four justices had to indicate a willingness to consider their arguments.
The case will be argued on April 19.