By the time a lawsuit reaches the U.S. Supreme Court, the facts of the conflict are rarely in dispute. The high court deals with the question of constitutionality—not which policy was in play when a petitioner cried “foul!”
But Monday’s oral argument at the Supreme Court revealed a great deal of confusion over those very basic facts of the case. And it is a very significant case for the LGBT community because it tests the rights of freedom of religion to trump policies prohibiting discrimination based on a variety of categories.
The consequences of that confusion could mean the Supreme Court decides to make no ruling on the case, but if it does, there appeared to be a fighting chance that the non-discrimination policy might prevail this time.
The lawsuit was Christian Legal Society v. Martinez. In the case, a Christian student group says the University of California-San Francisco’s Hastings College of Law violated its First Amendment rights when the school refused it official recognition as a campus group.
The confusion reigned over whether the school refused official status for the Christian Legal Society chapter at Hastings because the group violates the school’s written non-discrimination policy or because the group violates the school’s stated interpretation of that policy—that all official student groups must allow full and equal participation by all students.
Christian Legal says it is willing to abide by the policy that prohibits discrimination based on sexual orientation, but it says the implementing policy—that all students have full and equal participation in all officially sanctioned groups—goes too far. Christian Legal says that policy—by requiring that all students be eligible to vote and serve in leadership positions – violates group’s First Amendment rights to free association and free exercise of religion.
But key to Christian Legal’s contention is whether the school’s implementing policy has equal impact on all groups or a disparate impact on groups formed around certain religious beliefs.
Guided by Justice Sam Alito’s questioning, Christian Legal attorney Michael McConnell asserted that, while UC–Hastings has a written non-discrimination policy that applies to all groups, it applies the implementing policy only against Christian Legal.
Surprisingly, it was the court’s staunchest conservative, Antonin Scalia, who rebuffed that contention, saying Christian Legal had not introduced any evidence to prove it was being treated differently. Justice Ruth Bader Ginsburg noted that Christian Legal had, at the district court level, stated as fact that Hastings requires all student groups to allow any student to participate fully in the organization.
But McConnell suggested the school’s implementing policy “changes with every wind.” He did not mention that Christian Legal’s policy had changed, too. The UC-Hastings chapter had operated in compliance with the school’s non-discrimination policy for more than 10 years. It was only after it adopted the national Christian Legal Society’s policy—of requiring voters and leaders to swear an oath to its religious beliefs—that the school determined the chapter was in violation of the implementing—so-called “all-comers”—policy.
Justice Anthony Kennedy, who, now more than ever, is considered the crucial fifth vote on many split decisions, told McConnell that his argument, “at its most fundamental level, is that religious organizations are different because religion is all about belief.”
“But, at that point, don’t we also have a tradition of separation?” asked Kennedy. “That’s the whole reason why church and state, for many purposes, are kept separate—so that states are not implicated with religious beliefs. And it seems to me we have to consider that when we are considering your argument.”
Several justices tested McConnell’s argument as it might play out with other groups.
Justice Sonia Sotomayor asked, “Is this an exception that you want to talk about as it is applied to religious groups, or are you suggesting that, if a group wanted to exclude all black people, all women, all handicapped persons—whatever other form of discrimination a group wants to practice—that a school has to accept that group and recognize it, give it funds and otherwise lend it space?”
“Not at all,” said McConnell.
“So, what is wrong with the purpose of a school to say, ‘We don’t wish any group that … discriminates’?”
The key, said McConnell, is that the policy prevents groups from excluding students based on “status or beliefs.”
“We have only challenged the beliefs,” he said. “Not status. Race, any other status basis—Hastings is able to enforce. But they may not tell a group that ‘We don’t have to let you in if we don’t agree with you.’”
“What if the belief is that African Americans are inferior?” asked Justice John Paul Stevens.
McConnell said such a group could not exclude someone on the basis of status. By way of example, he said the policy would require an NAACP chapter to allow a racist skinhead to serve in an officer’s role. (In fact, the policy doesn’t require that groups place any person into an officer’s seat; presumably, the group membership would vote to decide which members become officers.)
Ginsburg queried McConnell, again, and this time, he began to contradict his own arguments.
“Let’s say it is the belief of this group, based on their reading of the Bible, that only white men can lead the Bible studies, can become officers of the group, and that’s based on their fundamental belief that that’s what the Bible instructs,” said Ginsburg. “On your view, must Hastings give this organization status as a recognized student organization?”
First, McConnell said no, then he said such a group could “insist that everyone who participates in the group have that belief” but the group couldn’t discriminate against someone because of their status.
“So they would have to negate their belief in their practice,” said Ginsburg. “They could believe this, but they couldn’t implement it?”
“People can believe in all kinds of things that are illegal,” said McConnell. “That doesn’t mean that they can do them.”
Scalia jumped in to help, noting that Christian Legal was complying with the policy forbidding discrimination based on sexual orientation because it did “not discriminate on the basis of orientation, only on the basis of belief.”
Justice Stephen Breyer asked whether Christian Legal would allow full participation by “a homosexual person” who agrees with the principle of no sex before marriage and that’s why the person is working for same-sex marriage. McConnell said yes, such a person could, but it was another stumble that Scalia quickly moved to correct.
“[Christian Legal] doesn’t have any belief that marriage is between a man and a woman?” asked Scalia.
“It does,” said McConnell, and acknowledged he had misspoken.
The going was rough for the attorney defending the school’s position, too—Gregory Garre, who was Solicitor General for the last few months of President George W. Bush last term. Under intense questioning from Scalia and Chief Justice John Roberts, Garre tried to clarify the two policies. The Christian Legal challenge, said Garre, is just to the all-comers policy.
Both Scalia and Roberts disagreed.
Scalia said the two policies are just plain “weird.”
“To require this Christian society to allow atheists not just to join but to conduct Bible classes –right?” asked Scalia. “That’s crazy.”
And this time, Kennedy seemed to agree with Scalia.
“What interest does the school have in this policing mechanism that it’s imposing?” asked Kennedy.
Garre explained that Christian Legal claims its concern is just about beliefs, but when it comes to status, he said, they don’t discriminate based on any status other than sexual orientation.
Alito sought to understand the implications of the policies in other contexts.
“Suppose at a particular campus there is a great deal of anti-Muslim animus,” said Alito. “And there is a small Muslim group; it has ten students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say the First Amendment allows that?”
Garre seemed stumped and said it’s a hypothetical that “has never happened at Hastings in 20 years.”
“It has really never happened in the history of American education,” said Garre.
“Well, [Christian Legal] obviously thinks this is a real threat,” said Alito.
Near the end of the one-hour argument, it was clear several justices felt they did not have the information they needed to decide.
Breyer said he felt the court was being “asked to decide a constitutional issue where I feel I need more facts, and I don’t have them.”
It is possible the court will decide to dispense with the case without issuing a ruling at all. It is not a common occurrence but it does happen. The lack of a decision would be a small victory for non-discrimination policies because both a federal district court judge in San Francisco and a 9th Circuit panel ruled in favor of the school. Those rulings would stand.
But it is not expected to be the end of an ongoing battle between right-wing religious groups and non-discrimination policies. Previous Supreme Court decisions have included Boy Scouts v. Dale and Rosenberger v. UVA. In Boy Scouts, in 2000, a majority ruled 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. In Rosenberger, in 1995, the majority ruled that the University of Virginia could not withhold student funding from a campus Christian group to disseminate a publication that derided gays and other minorities.
The National Center for Lesbian Rights provided representation to the UC-Hastings gay group Outlaw, which was designated as a party to the lawsuit, as an intervenor, to help defend the policy.
Other LGBT groups are watching the case carefully. Lambda Legal Defense and Education Fund, along with Gay & Lesbian Advocates & Defenders (GLAD), submitted a brief to the court in favor of the school, saying that public funds and student fees should not be used to support discrimination against any student.
“No one is telling [Christian Legal] that they can’t shut their doors to whomever they want. But they can’t do that if they expect university funds,” said Jon Davidson, legal director for Lambda Legal. “It’s wrong of them to expect taxpayers and students to pick up the tab for engaging in discrimination against select [the school’s] students.”
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Belief v. Bias is distinction with no difference and this article (with all due respect) begs the question: Does any religion’s belief system exempt it from the law on First Amendment grounds and if not why not?
While “religion [may be] all about belief,” the First Amendment’s Freedom of religion is about not imposing those religious beliefs on others – especially where the proselytizer seeks tax dollars to further his dogma. The mere fact of a ‘religious’ belief does not shelter a bigot who seeks to impose those beliefs on others while taking tax dollars. If one religious faction has the deeply held religious belief that a human sacrifice is necessary forgive our sins, or if another faction LIKEWISE believes a child must be tossed into a volcano to appease another angry god, does “freedom of religion” permit them to take tax dollars to secure a public forum to further such insane beliefs? Of course not.
What is missing in this discussion is legal education and the ability to make distinctions with a real difference. For instance Joseph Smith believed in and the Mormon church mandated polygamy. It was not a mere belief but a religious command. Yet Utah could not become a state unless Mormons abandoned this practice. Though not a mere belief but a religious command, still, Freedom of Religion does not permit polygamy. Understand and explain why and you have an answer to this issue.