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The U.S. Supreme Court has affirmed a “nondiscrimination” demand at Hastings College of Law in San Francisco for all student groups – a rule that even its supporters say would demand that black students allow a Klan member to join and even lead them.

But a dissent from Justice Samuel Alito said it was the court’s endorsement of viewpoint discrimination against a Christian group that required its leaders to be Christian.

“Here, the nondiscrimination policy permitted membership requirements that expressed a secular viewpoint. … For example, the Hastings Democratic Caucus and the Hastings Republicans were allowed to exclude members who disagreed with their parties’ platforms. …  But religious groups were not permitted to express a religious viewpoint by limiting membership to students who shared their religious viewpoints. Under established precedent, this was viewpoint discrimination,” Alito warned.

Alito’s dissent in the 5-4 ruling also suggested there will be problems as a result of the Supreme Court’s shift toward international precedents.

“Our First Amendment reflects a ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.’ … 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 (the Christian Legal Society’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,” he wrote.

The majority opinion written by Justice Ruth Ginsburg affirmed a school “nondiscrimination” policy that requires officially sanctioned student groups at the school to allow anyone to participate – and even lead.

“This is an extremely disappointing decision that significantly damages the constitutional rights of religious organizations,” said Jay Sekulow, chief counsel of the American Center for Law and Justice.

“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.’ And, we, like Justice Alito, hope this decision will be an aberration and not a shift in First Amendment jurisprudence.”

Alito shared Sekulow’s concerns.

“It bears emphasis that permitting religious groups to limit membership to those who share the groups’ beliefs would not have the effect of allowing other groups to discriminate on the basis of religion. It would not mean, for example, that fraternities or sororities could exclude students on that basis. As our cases have recognized, the right of expressive association permits a group to exclude an applicant for membership only if the admission of that person would ‘affec[t] in a significant way the group’s ability to advocate public or private viewpoints.’ Groups that do not engage in expressive association have no such right. Similarly, groups that are dedicated to expressing a viewpoint on a secular topic (for example, a political or ideological viewpoint) would have no basis for limiting membership based on religion because the presence of members with diverse religious beliefs would have no effect on the group’s ability to express its views. But for religious groups, the situation is very different. This point was put well by a coalition of Muslim, Christian, Jewish and Sikh groups: ‘Of course there is a strong interest in prohibiting religious discrimination where religion is irrelevant. But it is fundamentally confused to apply a rule against religious discrimination to a religious association,’” he explained.

“CLS has a particular viewpoint on this subject, namely, that sexual conduct outside marriage between a man and a woman is wrongful. Hastings would not allow CLS to express this viewpoint by limiting membership to persons willing to express a sincere agreement with CLS’ views. By contrast, nothing in the Nondiscrimination Policy prohibited a group from expressing a contrary viewpoint by limiting membership to persons willing to endorse that group’s beliefs. A Free Love Club could require members to affirm that they reject the traditional view of sexual morality to which CLS adheres. It is hard to see how this can be viewed as anything other than viewpoint discrimination,” he documented.

“All college students, including religious students, should have the right to form groups around shared beliefs without being banished from campus,” said Kim Colby, senior counsel at the Christian Legal Society Center for Law & Religious Freedom. “Today’s ruling, however, will have limited impact. We are not aware of any other public university that has the exact same policy as Hastings.”

“The conflict still exists. This decision doesn’t settle the core constitutional issue of whether nondiscrimination policies in general can force religious student groups to allow nonbelievers to lead their groups,” explained senior legal counsel Gregory S. Baylor of the Alliance Defense Fund.

“Long-term, the decision puts other student groups across the country at risk, and we will continue to fight for their constitutional rights. The Hastings policy actually requires CLS to allow atheists to lead its Bible studies and the college Democrats to accept the election of Republican officers in order for the groups to be recognized on campus. We agree with Justice Alito in his dissent that the court should have rejected this as absurd.”

The court’s majority opinion, by Ginsburg, said, “Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum.”

The college, through Leo Martinez, acting chancellor, said it was pleased.

“The college’s intent has always been to ensure the leadership, educational and social opportunities afforded by officially recognized student organizations are available to all students attending public institutions,” Martinez said.

The origins of the case date back several years to when the Christian Legal Society was rejected in its request for official campus student group recognition because of its requirement that officers and voting members subscribe to Christian beliefs. Specifically, it required that leaders affirm support for traditional marriage between one man and one woman, thereby excluding homosexuals. The school classified the requirement as “discrimination.”

A subsequent federal civil-rights lawsuit alleged the University of California’s Hastings College of Law violated the First Amendment rights of expressive association, free speech and free exercise of religion.

The lower court and the 9th U.S. Circuit Court of Appeals concluded a college can impose such discrimination and the Supreme Court now has agreed.

Martinez, in an interview on PBS, admitted that the school’s policy could create some uncomfortable situations.

Asked if a Jewish Anti-Defamation League chapter would be required to admit Muslims, he said, “It would.”

How about a black group admitting white supremacists?

“It would,” he said.

A black student organization would have to admit members of the KKK?

“Yes,” he said.

Alito also noted that the school’s “policy” apparently evolved during the course of the court case.

Dozens of groups, including a long list of attorneys general from various states, had submitted arguments in support of the Christian student group.

Among those was James Bopp Jr., counsel for the James Madison Center.

Representing the Students for Life America, the College Republican National Committee and the Republican National Lawyers Association, all of whom have student chapters, Bopp said, “This type of policy threatens the existence of any student organization that organizes to promote an ideology – conservative, liberal and everything in between.”

He said under the 9th circuit decision, a Republican would be fully qualified to be a member – even the chairman – of a Democrat student group. A proabortion group of students would be forced to allow someone who is vehemently opposed to the procedure to become a member and even lead.

“The First Amendment protects student organizations’ ability to define themselves along political, ideological or religious grounds,” Bopp said.

A similar battle has arisen at the University of Florida, where arguments stated if “nondiscrimination” laws were followed to the letter, they could be interpreted as opening up a women’s chorale to men and the men’s ice hockey team to women.

The issue also reared its head at the University of Wisconsin, where attorneys challenged the school after officials decided “to force campus student organizations to violate their core beliefs.”


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