Supreme Court appears to back student group's exclusionary rules

McClatchy NewspapersApril 19, 2010 

WASHINGTON — Conservative Supreme Court justices appeared poised Monday to strike down a San Francisco law school's refusal to recognize a Christian student group because it effectively prohibits gays from joining.

With pointed questions and sharp tones, the court's most vocal conservatives repeatedly challenged the University of California's Hastings College of the Law's treatment of the Christian Legal Society. The skeptics say the school violates the organization's First Amendment rights to define their own membership.

"It is so weird to require the campus Republican club to admit Democrats," Justice Antonin Scalia said, using an analogy. "To require the Christian society to allow atheists not just to join, but to conduct Bible classes, that's crazy."

Chief Justice John Roberts and Justice Samuel Alito voiced similar sentiments. As is customary, conservative Justice Clarence Thomas, a frequent Scalia ally, was silent throughout the hour-long oral argument.

"I'm pretty optimistic," Stanford Law School professor Michael McConnell, the attorney for the Christian Legal Society, said on the Supreme Court steps afterward.

In a sign that the closely watched freedom-of-religion case is heading for a split decision, however, justices Ruth Bader Ginsburg and Sonia Sotomayor questioned whether another group might ban women or minorities under the Christian group's reasoning.

"What is wrong with the purpose of a school to say, 'We don't wish (to recognize) any group that discriminates?'" Sotomayor asked.

Justice John Paul Stevens, participating in one of the last oral arguments of his 34-year career, echoed the point by asking about a hypothetical student group whose "belief is that African-Americans are inferior."

McConnell replied that a student organization could be allowed to require members to hold racist beliefs but couldn't be allowed to restrict membership based on an applicant's racial status.

"You can have a student organization, I suppose, of that type," Scalia offered, but "it wouldn't include many people."

The case involves several parts of the First Amendment, including the freedom of speech, the freedom to exercise religious beliefs and the freedom to associate as one chooses.

Hastings currently recognizes about 60 student organizations, from the Hastings Student Animal Legal Defense Fund and the Association of Muslim Law Students to the Hastings Democratic Caucus. Formal recognition conveys tangible benefits, including use of the school's logo, office space and audio-visual equipment.

The school doesn't recognize the Christian Legal Society.

"We are left out," McConnell argued, adding that "constitutional rights may not be penalized by the withdrawal of benefits."

The Christian Legal Society had about half a dozen members in 2004 when it decided to affiliate with a national organization.

The Christian Legal Society now opens events to all but requires prospective members to sign the national "statement of faith." The statement condemns "all acts of sexual conduct outside of God's design for marriage between one man and one woman, (including) fornication, adultery, and homosexual conduct."

Christian Legal Society President T. Ryan Elder said that gays may fully participate in the group, so long as they don't act on their sexual orientation.

Hastings officials nonetheless deemed the organization's policy a violation of the school's prohibition against discrimination on the basis of religion or sexual orientation. The California School Board Association, the University of Kentucky and 13 separate educational organizations such as the American Association of Community Colleges all endorsed Hastings' position in amicus briefs.

The court's decision could have a sweeping effect for colleges and universities that have nondiscrimination policies similar to Hastings'. Most public universities prohibit exclusion based on sexual orientation.

"This is a not uncommon and a reasonable policy," said attorney Gregory Garre, who represents Hastings.

Alito pressed Garre with particular vigor, suggesting that the school's policy would enable avowedly anti-Muslim students to take over a Muslim organization. Garre responded that there's no prior example of such an occurrence.

Justice Anthony Kennedy, frequently a swing vote in close decisions, asked many questions but didn't clearly tip his hand Monday.

A decision is expected by the time the court's current term expires at the end of June.

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