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.
photo via PhillipC via Flickr