Supreme Court Missed the Mark on Religious Freedom

The Supreme Court was presented with the
following question: “May a public law school condition its official
recognition of a student group-and the attendant use of school funds and
facilities-on the organization’s agreement to open eligibility for membership
and leadership to all students?”

By a one-vote margin, the high court upheld the
University of California-Hastings College of Law’s application of its policy
withholding recognized student organization status from any group that excludes
members on the basis of religion or sexual orientation (among other things) to
the Christian Legal Society (CLS).  

CLS sought to ensure that its members and leaders
would adhere to a statement of faith and code of conduct, including the belief
that sexual activity should not occur outside of a marriage between one man and
one woman.

CLS said it
could not abide by the school’s non-discrimination policy. That policy forbids
student groups from discriminating on the basis of, among other things,
“religion.”   CLS says its
religious beliefs prevent non-Christians from exercising control over the group
by becoming voting members or serving in leadership positions.  By a one-vote margin, the Supreme Court
upheld a decision by the U.S. Court of Appeals for the Ninth Circuit and
rejected CLS’s position.

This
decision significantly limits the constitutional rights of religious
organizations. The court missed the mark in understanding that it is
fundamental to religious freedom and the freedom of speech that religious
groups are free to define their own mission, select their own leaders and
determine their own membership criteria. By permitting a problematic decision
by the federal appeals court to stand, the Supreme Court decision represents,
as Justice Samuel Alito correctly concluded in the dissent, “a serious setback
for freedom of expression in this country.” 

We have argued that the First Amendment
prohibits a public law school from denying recognition to a religious student
group because the group requires leaders and members to agree with its core
religious viewpoints.

We
filed an amicus brief with the Supreme Court in the case representing more than a dozen Christian leaders
and organizations active on college and university campuses-including
Fellowship of Christian Athletes, Campus Crusade for Christ, InterVarsity
Christian Fellowship, Young Life, the Navigators and the Fellowship of Catholic
University Students.  

In our
amicus brief, we spelled out very clearly our belief that religious groups are
constitutionally protected in following their religious beliefs.

“Religious
groups by their nature embrace religious principles and, as a matter of
organizational identity and coherence, will normally require adherence to such
principles as a criterion for membership and certainly for leadership,”
the brief asserted.

“This
is not ‘discrimination’ but rather part and parcel of what defines them as
religious groups,” it continued. “Wooden application of religious ‘non-discrimination’
policies therefore forces religious groups to choose between their religious
identity and access to the forum. That ‘choice’ is an unconstitutional one
between yielding to government intermeddling and no access at all. Far from a
permissible condition on benefits, this is a choice that the government, under
the Religion Clauses, has no business imposing on religious groups.”

In the majority opinion written by Justice Ruth
Bader Ginsburg, the court concluded that CLS, in order to be recognized as a
student organization, must accept all students who wanted to join the group.
“CLS, it bears emphasis, seeks not parity with other organizations, but a
preferential exemption from Hastings’ policy,” she wrote.  “Compliance with Hastings’ all-comers
policy, we conclude, is a reasonable, viewpoint-neutral condition on access to
the student-organization forum.”  

But
in a well-written and sound dissent, Justice Samuel Alito, joined by Chief
Justice Roberts, and Justices Antonin Scalia and Clarence Thomas rejected the court’s
analysis, calling the decision “a serious setback for freedom of expression in this
country.”

As Justice
Alito wrote: “Our First Amendment reflects a ‘profound national commitment
to the principle that debate on public issues should be uninhibited, robust,
and wide-open.’ New York Times Co. v.
Sullivan, 376 U. S. 254, 270 (1964). Even if the United States is the only
Nation that shares this commitment to the same extent, I would not change our
law to conform to the international norm.

“I fear
that the Court’s decision marks a turn in that direction. Even those who find
CLS’s views objectionable should be concerned about the way the group has been
treated-by Hastings, the Court of Appeals, and now this Court. I can only hope
that this decision will turn out to be an aberration.”

Justice
Alito disagreed with the court’s characterization of the school’s policy as a
neutral “accept-all-comers” policy, noting the existence of numerous
recognized organizations at the university that could be harmed by such a
policy, including political, pro-life, pro-choice, religious, ethnic identity,
feminist and animal-rights groups.

The impact
of the high court’s flawed analysis raises further concern. Justice Alito
compared the Hastings policy to a hypothetical state law, stating: “The
State of California surely could not demand that all Christian groups admit
members who believe that Jesus was merely human. Jewish groups could not be
required to admit anti-Semites and Holocaust deniers. Muslim groups could not
be forced to admit persons who are viewed as slandering Islam.”

Given the court’s
rejection of Justice Alito’s analysis, however, one could make the argument
that a student Jewish Anti-Defamation League organization could be forced to
admit Muslims, or that a black student organization would have to admit white
supremacists to its organization.

What will
happen going forward on college and university campuses?  What will Christian organizations face?  Will other public colleges and universities
modify their anti-discrimination policies to mirror the “accept-all-
comers” policy that the court based its decision on?  Will those outside of the educational system
seek to apply this decision to limit equal access to their facilities for
religious groups?   

Yes, this
decision raises a host of questions. But the fact is that it is simply too
early to tell. The majority opinion does not decide the issue. However, one
thing is clear: There will be more litigation-more challenges-as a result of
this decision. 

It is our hope,
like Justice Alito, that this decision will be an aberration and not a shift in
First Amendment jurisprudence.

Jay Sekulow is chief counsel
of the American Center for Law and Justice (ACLJ), a Washington-based
constitutional law firm focusing on preserving religious liberty. The ACLJ is
online at www.aclj.org.