It's a decision that is both disappointing and troubling. By a vote of 5-4, the Supreme Court today upheld a California law schools denial of official recognition of a Christian student group. The Christian Legal Society (CLS) refused to agree to let non-Christians to become voting members or leaders. We filed an amicus brief with the high court in the case representing numerous Christian campus organizations.
In addition to being extremely disappointing, the decision significantly damages the constitutional rights of religious organizations. The majority of the Supreme Court missed the mark in understanding that it is fundamental to religious freedom that religious groups are free to define their own mission, select their own leaders and determine their own membership criteria.
By permitting a discriminatory decision by the federal appeals court to stand, the Supreme Court decision represents, as Justice Alito correctly concluded in the dissent, 'a serious setback for freedom of expression in this country.'
The case involved a decision by the U.S. Court of Appeals for the Ninth Circuit siding with the Hastings College of the Law in San Francisco. Hastings denied official recognition to CLS after the group said it could not abide by the schools non-discrimination policy. That policy forbids student groups from discriminating on the basis of, among other things, "religion."
CLS said 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 today upheld the 9th Circuit decision and rejected CLS's position.
In a dissent written by Justice Samuel Alito, and joined by Chief Justice Roberts and Justices Scalia and Thomas, Justice Alito concluded that the majority decision "is a serious setback for freedom of expression in this country."
From Justice Alito's dissent: "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 Courts decision marks a turn in that direction. Even those who find CLSs 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."
It's a dissent that is right on the mark.
In our amicus brief filed at the high court, we argued 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. 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 this case, we represented 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.
You can read our amicus brief here.
We are hopeful that this decision by the high court will be an "aberration" - as Justice Alito put it - and not a shift in First Amendment jurisprudence. Time will tell.