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More Legal Maneuvering by the Religious Right

More Legal Maneuvering by the Religious Right

Today the Supreme Court granted review of a case sure the stoke the simmering resentments in the class between the exercise of certain religious practices and belief and anti-discrimination laws. The case, Christian Legal Society v. Martinez asks the Court to decide if a California law school violated the constitutional rights of a Christian student organization by denying it recognition as an official campus organization because the group excludes gays and lesbians.  The case represents a very real, and very unsettled constitutional challenge that could have profound reach depending on the outcome.

The Christian Legal Society is a national organization with a branch at the University of California’s Hastings College of Law.  The organization requires officers and voting members to share their religious beliefs, including that “Christians should not engage in sexual conduct outside of a marriage between a man and a woman.”  In 2004 the group learned that it was being denied recognition by the University as an official student group because of its policy of exclusion and sued.  The school responded that because all officially recognized student groups are eligible for funding and other benefits those organizations cannot exclude people on the basis of religious belief, race, gender, sexual orientation, and others.  If a group does not allow membership and leadership positions to be open to all it is allowed to operate on campus, it just doesn’t get to do so with the help of federal dollars.

The group lost at both the trial court and the appellate court level.  And they knew they would because this lawsuit represents a cohesive element in a nationalized litigation strategy targeted at getting widespread religious exercise claims established as a “trump” to countervailing anti-discrimination laws.

The Christian Legal Society has brought identical claims in the 7th Circuit Court of appeals and won.  In Christian Legal Society v. Walker the court of appeals held that the group’s ability to convey its message would be hampered if it was forced to accept members who disagree with it and that the state school, in this case Southern Illinois University School of Law, lacked a compelling interest in imposing the policy on the organization. 

It is very hard to get to the Supreme Court these days, due in no small measure to the strident efforts of the same Federalist Society interests now backing CLS, ironically enough.  But one sure way to get there is by splitting the circuits, and splitting the circuits on a fundamental constitutional question is about as close a thing to a sure bet as exists in the granting of a writ. 

The Southern Illinois case represents only one additional suit by CLS.  There have been many more, all settled out of court. 

Members of the Christian Legal Society should be totally free to chose whoever they like to fill their leadership roles, and law students should feel free to be members of the organization if they like without fear of ridicule and persecution.  But the Christian Legal Society, because it is a religious organization, should not get school funds.  No religious organization should get school funds even if they don’t have a policy of exclusion because of the fact that they are religious groups.  But just like political advertising, in constitutional law the space where speech and money meet seldom makes for bright lines.

These cases get at our fundamental disagreement of the place of faith in people’s lives and how that shows up in governance.  We see it in health care reform with the actions of the Council of Bishops, Rep. Kennedy, and the Stupak amendment.  We see it in electoral politics with the nationalized campaign against statewide voter-led initiatives against same-sex marriage.  And now we see it in an effort to dismantle affirmative action protections.  Just how much religion can we tolerate in our public lives, and how much do we have to help support as taxpayers? 

Religious freedom works in this country when members of faith govern by those principles rather than treat governance as a mission.  It disrespects members of other faith and members of no faith.  It is inherently undemocratic and it is dangerous.  Secularism, not religious ideology must govern for it is the only vehicle that carries all voices.

If the Supreme Court sides with CLS, and there is a good chance it will, then we will have created a jurisprudential bias in favor of the exercise of religious belief over equal access.  It’s not the ever-encroaching federal government I worry about, it’s the church and persistent efforts to slide us from democracy to theocracy.  For any of you who my concern about the excessive entanglement between government and religion, this is a case to watch.

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photo via PhillipC via Flickr

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69 comments

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5:24AM PDT on Apr 4, 2013

Religion belongs in church and your own home.

10:26AM PST on Dec 20, 2009

Where there's religion involved there's trouble! The only thing that religion teaches is discrimination. Read the bible! It's against gay people, there's no respect for women, Men rule... I was raised as a Christian but now I'm reluctant that I was forced to do many things just to please the ones around me. People have to thing of others as they thing about themselves. Respect above all.

12:47PM PST on Dec 14, 2009

If that so called christian students organization excludes gays then they are simply not christian. In actuality they are a hate group and groups like that can and should be barred from campuses.

8:14AM PST on Dec 14, 2009

The "Religious Right" should just leave the rest of alone. It was their policies over the past 8 years that got us in the mess we are in.

12:34PM PST on Dec 13, 2009

Well, I really doubt that. I think it's more a matter of being selective about what parts of your religion you personally want enforced. As far as I'm aware the US still practices capital punishment, which contradicts one the commandments. Bit of a salad bar, isn't it?

9:20PM PST on Dec 12, 2009

Unfortunately, I can't manage how the taxes are used, hence why there are PLENTY of things funded with my tax dollors that I do not agree with. HOWEVER none of those things funded with my tax dollars that I don't agree with conflict with a religious law or doctrine, and therefor it continues to keep the seperation of church and state.

7:03PM PST on Dec 12, 2009

I'm curious as to how you would pay all the rest of your taxes-- you know, all the civic ones that have nothing to do with anything religious or controversial-- while ensuring none of the monies went to anything that might conflict with your religious beliefs. I'm also curious as to how you would manage the same exemptions for me, based on things I find morally objectionable, like religion.

11:36PM PST on Dec 10, 2009

I have only heard that there are many democrats who are not voting on the bill because there won't be a public abortion option paid for by the government. But if it is the case that that amendment will stay in place, then I am fine with that. If a woman wants to go do an abortion because they didn't use birth control, whatever, it's her deal. So long as they never use tax dollars to fund it, I could care less what that woman does.

And does any one know why I am not getting replies to the comments? I have marked track comments, but I do not get the replies, and it is annoying having to back track my way back to this page when ever I want to check replies. Thanks

6:00PM PST on Dec 10, 2009

Katherine-
The debate about abortion in health care presumes the Hyde Amendments will stay in place. Hyde prohibits federal funding of abortions. Any information that disputes this is misinformation designed to inflame rather than educate. In fact, the Stupak amendment would prohibit PRIVATE dollars going to provide abortion services--so an extension of Hyde. So, the reality is federal dollars will never go to fund abortions unless we undo the Hyde amendments. Since Democrats have taken Hyde as an acceptable floor, that wont happen.

1:27PM PST on Dec 10, 2009

Freedom of religion also means freedom from religion. I have mine, you have yours and we are free to practice our respective religions as we see fit...just please don't force yours on me...and vice versa. We would all get along much better that way.

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