Supreme Court Appears to Back Student Group's Exclusionary Rules

Published on
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McClatchy Newspapers

Supreme Court Appears to Back Student Group's Exclusionary Rules

by
Michael Doyle

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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