Rod Dreher

Rod Dreher


Religious freedom rolled back by SCOTUS

posted by Rod Dreher

I forgot to note the recent 5-4 Supreme Court decision denying the rights of a Christian group on a California college campus to deny membership to gays who don’t believe in traditional Christian teaching on sexual morality. The Court said that the college was within its rights to deny the Christian Legal Society official recognition. Wendy Kaminer — who is a liberal feminist civil libertarian, mind you — finds this ruling objectionable. Excerpts:

The Court’s ruling in Christian Legal Society v Hastings is more like an endorsement than a rejection of official loyalty oaths. It upholds state power to condition the benefits extended to private associations on their willingness to conform to an official ideology – in this case a particular view of sexual morality.

More:

Private associations, however, do not have any inherent rights to public support, and the Court stressed that CLS was not denied the right to exist or organize on campus; it was the denied the benefits of official recognition. The trouble is that CLS appears to have been denied recognition and benefits because state university officials disapproved of its ideological opposition to homosexuality: If the states chooses to extend benefits to private groups, it can’t discriminate between them on the basis of their viewpoints; CLS appears to have been the victim of viewpoint discrimination, (or political correctness).

Kaminer goes on to explain what she means, and how in her view, the majority ruled as it did not out of consistent principle, but because it didn’t like the viewpoint expressed by the Christian Legal Society.

[Full equality for gays is] a vision I share and would impose on employers and other commercial entities pursuant to civil rights laws — while opposing its official imposition on private, non-commercial associations. Atheist groups that require prospective members to sign statements disavowing belief in a deity, or religious groups requiring members to affirm particular articles of faith should not lose their not for profit tax status because they engage in religious discrimination.

I might have argued before that it’s important for all people who care about freedom of speech and religion to support the CLS, even if they do not agree with its viewpoint, because protecting CLS’s right to decide who gets to be a member is protecting every group’s right to decide its own membership. Apparently, though, our Supreme Court believes that it’s licit to protect other groups, while singling traditional Christians out for special discrimination. As Cathy Young wrote at the libertarian site Reason:

How would people feel if, at a public university that happened to be dominated by religious conservatives, a gay-rights group was denied recognition because it refused membership to people who openly espouse anti-gay views?

I would feel that would be very wrong. No gay group should be forced to accept members who deny its organizing principles as a condition of being allowed to be a member of the campus community. Then again, I believe in strong First Amendment rights of association. This ruling is a bellwether, I fear.



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celticdragonchick

posted July 7, 2010 at 9:25 pm


I would feel that would be very wrong. No gay group should be forced to accept members who deny its organizing principles as a condition of being allowed to be a member of the campus community.
You’re kidding, right?
Religion is a (very) legally protected class. There is absolutely no way that any glbt group in a school that accepts tax payer funds for tuition can deny membership to Christians or any other religion, no matter how hostile to glbt people.
The only reason you haven’t seen that happen yet is because of the social stigma that might ensue for any Christians. That will change fairly quickly, and I expect to see a conservative Christian group force the issue successfully and gain membership to a glbt group to disrupt them.
This ruling cuts both sides equally. I expect schools will stop recognizing many groups altogether to stop tit for tat retribution.



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kevin s.

posted July 7, 2010 at 9:38 pm


Tit for tat retribution is what is needed here. Conservative groups will be vilified for making sport of this horrendous decision, but there is no other compelling way to protest this flagrant violation of religious freedom.



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Peter

posted July 7, 2010 at 9:48 pm


Let’s be clear. Religious freedom wasn’t “rolled back by SCOTUS.” It’s not clear that religious groups at public campuses ever had the right to discriminate on the state dime when a neutral policy existed. The right of non-ministerial groups or person to discriminate at will and violate state law under the guise of religious belief is not part of the First Amendment.



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Peter

posted July 7, 2010 at 10:11 pm


Apparently, though, our Supreme Court believes that it’s licit to protect other groups, while singling traditional Christians out for special discrimination.
But that’s not happened. CLS requested special rights that no one else gets and wanted to be exempted from a neutral policy that applied to everyone. That’s not special discrimination, that’s discriminators being treated like everyone else and not granted special rights.



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kevin s.

posted July 7, 2010 at 10:16 pm


“It’s not clear that religious groups at public campuses ever had the right to discriminate on the state dime when a neutral policy existed.”
The problem is that the court upheld an uneven application of the policy, which is, indeed, a rollback of religious freedom.



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Peter

posted July 7, 2010 at 10:22 pm


It wasn’t uneven. It was an all-comers policy that applied to every student group. The policy was applied to the only set of discriminators to ever violate the policy, but the rule is neutral and applies to Christians, the KKK, gays, and athiests.



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kenneth

posted July 7, 2010 at 10:30 pm


Since when does religious freedom include a right to public funding? Christians have enjoyed an unwritten and unconstitutional veto power over the public sphere for so long that the leveling process of late I’m sure feels like persecution. I wonder how long (in seconds) these sallies would have lasted under Nero’s Rome or the real persecution faced by Christians in the Middle East?



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cobi

posted July 7, 2010 at 10:36 pm


The very first sentence in your post is wrong, and, like most of the errors of fact on this blog, wrong in an inflammatory way that makes religious conservatives seem besieged by the rest of us. The group can have whatever members it wants – it just cannot get official recognition from the university if it refuses to follow the university’s anti-discrimination policies. If the Korean Students Association kicked out white people or the College Democrats kicked out Catholics they would also get de-listed. And, contrary to the impression created by the third paragraph you quote from Kaminer, this decision had nothing to do with tax status of non-profit groups.



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JustMe

posted July 7, 2010 at 10:58 pm


If the Korean Students Association kicked out white people or the College Democrats kicked out Catholics they would also get de-listed.
What if so many white people joined the Korean Students Association that it was no longer, in any real sense, Korean? Under this ruling, the Korean Students Association would have no choice but to accept that situation or else lose official recognition.
How long do you think it will be before college students start gaming this ruling in order to pressure or delist organizations they don’t like? Pandora meets box.



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Larry

posted July 7, 2010 at 11:07 pm


How long do you think it will be before college students start gaming this ruling in order to pressure or delist organizations they don’t like?
Not long, and then you’re going to hear whining and crying like you wouldn’t believe out of those who are currently praising this decision. Wait until a GLBT student organization gets taken over by fundamentalist Christians. It all depends on whose ox is being gored.



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Franklin Evans

posted July 7, 2010 at 11:26 pm


Why is it necessary to drag non-political groups into this sort of discussion? It is beyond a non sequitur, well into the realm of ridiculous and skirting the line of egregious.
Rod, I think better of your analytical skills (and my civility seems to have gone out the window, so grains of salt, etc.) There are plenty of religious groups on campuses. They have explicit charters to serve those for whom their religious identity matches that of the group. There’s Hillel, Campus Crusade for Christ, even a smattering of Pagan groups.
Here’s the thing: Not one of them come even close to the line of demarcation with politics. Not one. Why is it so difficult to see that a Christian Legal Society by its very nature is about politics? Why is it so difficult to make the simplest of logical connections between that and the political issue of gender and sexual orientation discrimination?
No religion is restricted in any way from having and expressing their beliefs on their own dime, completely free of taxation. No religion is promised the right to have and express those beliefs on someone else’s dime, especially when they not only don’t agree with those beliefs, they are prohibited by law from supporting them?
It’s an extreme analogy, but it fits my intention: Some fringe religious group can get free space and such on a campus if they fill out the right forms. The moment they start grabbing stray cats to sacrifice on an altar, they have violated a law and not only don’t get free space, they get kicked off campus (and prosecuted by local law enforcement). Someone, anyone, please explain to me that a group that denies anti-discrimination laws should get free space on a college campus.
And yes, I’m prepared and willing to apply that same logic to every cause I support.



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Franklin Evans

posted July 7, 2010 at 11:29 pm


…and I’d like to see the Christian Legal Society spend money and time defending that fringe group. After all, the principle is the same.



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Brian

posted July 7, 2010 at 11:42 pm


Nobody’s rights were denied. If anyone wants to start a club, they have every right to do so. What they don’t have a right to is government money if it constitutes an establishment of religion. The CLS can discriminate against anyone they wish, but they have to do it on their own dime.



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strech

posted July 7, 2010 at 11:43 pm


Apparently, though, our Supreme Court believes that it’s licit to protect other groups, while singling traditional Christians out for special discrimination.
This isn’t actually true; I assume this comment is because the Atlantic writer quoted parts of Alito’s dissent:
An official La Raza chapter limited voting membership to “students of Raza background.” A pro-life group limited voting membership to pro-lifers. In other words, while La Raza was allowed to discriminate on the basis of ethnicity, CLS was denied recognition for discriminating on the basis of religion: “CLS (is) “the only student groups whose application has ever been rejected.”
However, as much as this may be true, the court did not rule that restricting CLS membership was not okay while restricting the membership of other organizations was not. There’s a bunch of legalese, but basically both parties (the group and the school) agreed to have the court decide only the narrow issue of whether or not a generic all-comers policy (that would also allow Democrats to join campus Republican groups and become leaders, require ethnic student groups to allow non-ethnic students to join and become leaders, and so on), whether or not that was actually what was going on:
The Court considers only whether a public institution’s conditioning access to a student-organization forum on compliance with an all-comers policy violates the Constitution. CLS urges the Court to review, instead, the Nondiscrimination Policy as written ….. This argument flatly contradicts the joint stipulation of facts the parties submitted ….. This Court has long recognized that parties are bound by, and cannot contradict, their stipulations.
…..
Neither lower court addressed CLS’s argument that Hastings selectively enforces its all-comers policy. This Court is not the proper forum to air the issue in the first instance. On remand, the Ninth Circuit may consider this argument if, and to the extent, it is preserved.



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Kevin F.

posted July 7, 2010 at 11:45 pm


One of the many absurdities of this case is that Hastings justified its action as a defense of minorities; yet this case gives the possibility of tyranny by majorities. Any majority group can quash all minority groups by joining them and voting changes in their purpose.
The minority opinion by Justice Alito is excellent–and very blunt.



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Peter

posted July 7, 2010 at 11:53 pm


The majority deals with the sabotage concern and says it can’t rule based on hypotheticals that don’t have an history of reality. And should infiltration become a problem–which isn’t likely–the college can change their policy.



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TruthisStrong

posted July 7, 2010 at 11:58 pm


Like the feminist liberal (who is against the ruling) said, this ruling (if applied evenly) would force an NAACP group to accept a neo-nazi who secretly wanted to disrupt their plans and meetings.



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hlvanburen

posted July 8, 2010 at 12:18 am


Can anyone show me in the text of the First Amendment where the issue of funding is addressed? Here…allow me to post the text of that amendment for you, just for ease of reference:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Can anyone…any of you…show me where that amendment mentions funding of groups by public entities?
Next, can anyone show me in the Supreme Court decision where the Court held that the group in question (or any other group for that matter) was to be prevented from assembling (meeting) by the University? Anyone?
As I read the decision it seemed to focus on a very narrow issue regarding the nature of the school policy regarding membership requirements of “officially recognized” groups. The primary benefits of that official recognition being access to school facilities for publicity and meeting space and access to funding from the school coffers (I presume the student activity fund).
Some have made the case that the Court decision would require groups to accept members who do not adhere to the group’s stated membership requirements. I fail to see where that argument holds water. The Christian Legal Society, at least according to my reading of the decision, can still exclude homosexuals, can still restrict membership to Christian students, and can still meet freely. The primary benefit that they have lost is the financial support that other groups enjoy.
Where in the First Amendment is the issue of funding mentioned?
The school has established policies governing those groups who wish to receive this “official recognition” from the school. Does the school have a right to establish how student activity funds are to be spent? Does it have a right to set policies for those groups who wish to gain endorsement of the school (thereby benefiting from the good name of the school)?



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the stupid Chris

posted July 8, 2010 at 12:43 am


What part of “he who pays the piper calls the tune” is so hard to comprehend?
By accepting (or demanding) funding from people who do not share their values religious groups wind up fundamentally undermined. This is why separation of church and state is so important, and why decisions like this actually serve to help religious groups stay true to their faith.



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Brett in Oregon

posted July 8, 2010 at 1:00 am


Rod, do you believe that a religious group that doesn’t have enough members to be recognized by the university is a violation of said groups religous freedom?



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trotsky

posted July 8, 2010 at 1:23 am


What I can’t understand is why it is even legal to have a Jewish Law Students Assn. or a Catholic Law Students Assn. — both of which exist at Hastings — not to mention the various racial and ethnic groups. Yeah, in theory they have to accept anyone who joins — as if atheist would join the Catholics or Buddhists the JLSA or Turks start hanging out with the Armenian Law Club (which also exists at Hastings). Would Hastings for a moment accept the existence of a White Protestant Law Students Assn.? Of course not.
When the courts try to draw these lines, they just expose the absurdities. Scrap them all and let them have private clubs like the grown-ups these law students are.
And just for the record, the court was nigh-unanimous that no real money was involved here.



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Erin Manning

posted July 8, 2010 at 1:58 am


The stupid Chris, who is paying the piper at a state university? In this case, the people of California generally, and all the students attending the school who pay into the activities fees specifically.
Having said that, though, I have to admit that I’m finding it hard to be overly concerned about this–not because it’s not, as Rod said, indicative of how people view religious freedom in 21st century America, but because it’s merely the latest example of the de facto establishment of the unofficial American religion, the religion of secularism.
American secularism as a belief system holds the following tenets:
1. People do not need God or gods or deities etc. in order to be good.
2. There is no such thing as “good” or “evil” in the classical religious-inspired view of morality. All morality is legality. What is good is what is legal; what is bad is what is illegal.
3. Legality or illegality (e.g., good or evil) is determined ultimately by a series of judicial calculations which weigh the potential freedom and satisfaction of the individual against the potential harm to the group. Thus, theft (on the individual level) will always be illegal no matter how much individual people might want to steal, because the harm done to the common good and the social order is too great; however, theft done by groups with government oversight is quite possibly legal (and therefore good), depending on how creatively the theft is conducted and from whom the goods or money are being stolen. Abortion, to use another example, is legal (good) regardless of religiously-inspired ethical considerations, because the freedom and satisfaction of the woman who wishes to kill her offspring outweighs any harm to social order or common good; indeed, the common good almost demands that women in some demographics abort more children than they give birth to, if the percentage of poverty-stricken children who will likely commit crimes is to remain at a manageable level.
4. At times, what is “good” (legal) or “bad” (illegal) has not yet been established. However, precedent plus present trending legal decisions not only in America but in Europe can help establish whether something will ultimately be ruled “good” or “evil.” Gay marriage is an example of this–the precedent of secularism’s tendency to see all adult consensual sexual activities as good (legal) except when they specifically interfere with the social order (e.g., sex in public places), combined with the number of European nations which have legalized either gay marriage or gay civil unions, makes the eventual outcome of this debate all but a foregone conclusion.
5. While people are free in private to disagree with secularism, they are not free to do so in many public places or in any job, location, etc. which involves government funding. This is because government funding is not seen as coming from the people the government represents and taxes, but as belonging to a special pool of resources whose only proper use is to support the government while furthering the spread of secularism. Thus, a state-funded meal for seniors must forbid its partakers from being led in prayer (unless the news media catches on and makes a big deal out of it) even if many residents are religious believers and the meals are served in a state with a high population of religious believers, because while it is seen as just and legal to take the money of believers while forbidding them to pray, it is not seen as just and legal to take the money of non-believers and expose them unwillingly to prayer.
6. Whenever possible, the beliefs and practices of any religious believers is redefined as “discrimination.” It is then forbidden, because unauthorized discrimination is illegal (bad). The secular state itself, however, can and does discriminate against those who are unwilling or unable to follow the secular tenets.
7. Freedom of religion is not really a secular value; the proper way to term this freedom is “freedom FROM religion.” Either way, the term means that the secular state views all religions with equal contempt, and that people are free to worship as they like, but not free to act on their beliefs away from religious premises or the privacy of their own homes.
Given the above, who should be surprised that the Supreme Court would rule against a student group that refused to stop acting according to its beliefs merely because it was on public property and receiving the same student funding as “Hastings OUTLAW” (the law school’s LGBTQ group) or any other student group? All of the student groups are permitted to exist on sufferance; that is, they may function so long as they don’t directly challenge the implied secularism of the school, the state, and the nation.



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Geoff G.

posted July 8, 2010 at 2:33 am


Erin Manning
Having said that, though, I have to admit that I’m finding it hard to be overly concerned about this–not because it’s not, as Rod said, indicative of how people view religious freedom in 21st century America, but because it’s merely the latest example of the de facto establishment of the unofficial American religion, the religion of secularism.
Baloney.
A quote from Hastings OUTLAW’s bylaws (PDF):
ARTICLE III-MEMBERSHIP
Section 1. In order to become a member, and individual must be a full-time student at Hastings and attend one full meeting; after attending that meeting and putting his/her name on the membership roster, she/he becomes a full voting member at the next meeting.
Section 2. Part-time students, faculty, staff and others associated with Hastings may become honorary members upon attending a meeting and expressing a desire to do so.
That’s it. There’s nothing there that says you have to be gay, lesbian, bisexual, transgendered or questioning. There’s nothing there that even suggests you have to support the group’s aims. All you have to do is be a full-time student, show up to a meeting and sign up. That’s it.
CLS, on the other hand, required its members to “adhere to the CLS Statement of Faith.”
What if you might be interested in becoming a Christian but want to check out a few meetings first? You can’t be a member. What if you’re a Jew who wants to hang out with your Christian friends and largely supports their aims? You can’t be a member. What if you’re a gay Christian (yes they do exist) who actually does believe everything in the Statement but somehow runs afoul of the mysterious “Resolution on the Statement of Faith and Sexual Morality Standards” that the CLS keeps hidden from public view? You can’t be a member.
So please, please explain to me why all of the citizens of California and all of the students at Hastings, including those who aren’t Christians, should see any of their tax and tuition money go to support this nice little exclusive country club the CLS is running?
As usual, you’re comparing apples and oranges and whining because CLS isn’t being given a privileged status that no other group enjoys.
I’ll also note that for once, I wasn’t the one to drag gay marriage into the discussion ;)



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thomasAlex

posted July 8, 2010 at 2:39 am


Separation of Church and State at its finest!!!!



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thomasAlex

posted July 8, 2010 at 2:44 am


Or should I say separation of mythological beliefs and factual state.



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BobSF

posted July 8, 2010 at 3:26 am


There is so much distortion about this decision and its context, even at the hands of Justices of the Supreme Court. They, in particular, should be ashamed of themselves.
This is not a “roll-back” of religious freedom, it is a reinforcement of it. There is no such thing as Group Freedom of Religion. Freedom of Religion is an individual right. Hastings is a public law school, a part of the University of California. It is funded by tax dollars. Students contribute to the fund for activity groups. This is the fund that CLS wanted access to, along with university recognition as an official student group.
Imagine, just for a moment, that the decision had gone 5-4 the other direction. Then, imagine yourself a student at Hastings. You pay (dearly) to attend university. You pay taxes that support the university, as well. And you want to join the Jewish Student Union. But there’s a problem. You’re Hasidic and the JSU has long been a bastion of Reform Judaism. They won’t let you in.
Where did your freedom of religion go? A state-funded organization, part of a public university, funded with YOUR student fees and YOUR tax dollars won’t let you in. That is an organ of the state violated YOUR freedom of religion.
This is, in fact, very close to what the CLS case is all about. CLS was founded in 1961 as an association of Protestant, evangelical Christians. It was founded, in part, as an alternative to mainline Protestant student groups. It cast a wide net, with a fairly loose set of Articles of Faith, encompassing both conservative denominations and liberal ones (back before those became theologically applicable terms), segregated denominations and inner-city black denominations. Everyone was welcome. It was a big tent.
I have no doubt that if you looked up the denominational affiliations of the founders and members of CLS in its early decades, you would find people whose denominations now tolerate gay people on some level, some might even bless our unions. I wonder if CLS would even allow those alumni to attend reunions now.
What happened is very similar to what happened to the Boy Scouts. Back in the early 90s, the CLS board — whether by accident or design, I don’t know — fell under the control of very conservative leaders and they took a stand in the Culture War. They added an amendment to the articles of faith, one they’re none too proud of, it seems, as you can’t find it online. (I believe there’s a copy in the SCOTUS decision). They drew a line in the sand and made a very broad Christian organization into a narrow one. They mixed broad belief in Jesus Christ with petty American politics. So now there’s an organization with a very open Articles of Faith and a very narrow Amendment and they want to take everyone’s money but keep out whom they choose.
In this country, you can do the former OR the latter, but you CANNOT do both.



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Erin Manning

posted July 8, 2010 at 3:26 am


So, Geoff, if the former members of the CLS all joined OUTLAW as voting members, ran for board positions according to the group’s policy, and took over the group, effectively ending its LGBTQ advocacy, you’d have no problem whatsoever with this, right?
Because that’s pretty much what the school’s “accept all comers” policy means, and in light of the SCOTUS decision I’d expect to see that sort of thing at Hastings in the future.



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Erin Manning

posted July 8, 2010 at 3:29 am


Oh, and Geoff, it would appear that people who didn’t sign the CLS statement of faith could be members, just not voting ones. What’s wrong with that? Are voting requirements in general some sort of illegal discrimination?



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BobSF

posted July 8, 2010 at 3:43 am


Because that’s pretty much what the school’s “accept all comers” policy means, and in light of the SCOTUS decision I’d expect to see that sort of thing at Hastings in the future.
Why in the future? Why not in the past? The gay student group at Hastings has always been open to any student, just like every other recognized student organization. Why hasn’t it already been taken over?
And why haven’t “takeovers” been happening all over the country for decades? This ruling isn’t putting in place new rules, it’s giving legal support to anti-discrimination policies that exist all across the country at PUBLIC colleges and universities.



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BobSF

posted July 8, 2010 at 4:53 am


BobSF, it’s because those who aren’t poisoning others groups have had better things to do with their lives. Now, however, they may feel threatened–because they are–and should now act with vigor.
Those of the faith that believes “there is no God” have become the Establishment Religion. Submit.



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Heritage Hills

posted July 8, 2010 at 4:56 am


I don’t support homosexual activity. Why should a homosexual group be forced to accept me?



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G

posted July 8, 2010 at 5:43 am


Erin Manning,
Much of what you wrote regarding the “tenets of American Secularism” seems wrong to me but I do not claim to be an expert on this (as you desribe it) vast social, religious and legal phenomenon, so may I ask that you direct me to what must surely be your extensive research and documentation so that I might re-evaluate my suppositions?
Unless of course this is simply your opinion (or feeling or..whatever) in which case it is absurd on a number of levels, not least of which is an incredible (and, does it require saying, decidedly un-Christian) self-regarding, rather bitter inhumility and I fail to see why I or anyone else should give any of it a second thought.
Criminy…



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public_defender

posted July 8, 2010 at 5:57 am


Manning and Dreher correctly point to a practical problem that the policy might allow, but that’s a practical problem that applies to everyone, not just to Christians who share your political beliefs.
Under this SCOTUS opinion, anti-gay students could join a group that supports gay rights, and change its direction. The school’s policy required that all school-funded groups be open to all students.
But practical problems are not the same as discrimination, unfair discrimination or unconstitutional discrimination. As others have pointed out, Christian groups have the right to free association, but if you take Caesar’s money, you play by Caesar’s rules.
“SCOTUS” didn’t “roll back” any freedom. This group of Christians SOLD their freedom from a few pieces of Caesar’s silver. And it’s a bargain that Caesar will let them out of any time the Christians want.
On a more legal note, take a look at Eugene Volokh’s characteristically calm analysis of the law: “On Free Association, the Court Makes the Right Call”. Volokh is no liberal, and he’s one of the most levelheaded First Amendment commentators out there.
Dreher can write very well about religious and cultural issues (even where I disagree), but his writing about legal issues is often disappointing. Come on, you can do better.



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Cultural conservative

posted July 8, 2010 at 6:08 am


To those who agree with this decision, can we clarify the principle here?
If the CLS did not take a cent of government money, or use public premises, would you support their right to set their own membership policy?



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DeeAnn

posted July 8, 2010 at 7:00 am


it’s my understanding that this ruling was based on the university’s rule that ALL groups must accept anyone who wants to join. It’s also my understanding that no other University in the nation (or very few) has (have) such a policy so it doesn’t really affect anything.



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G

posted July 8, 2010 at 7:10 am


OK, so as not just to be the anti-matter Erin…
I admit to being little more than an occasional, if sincerely interested, lurker here but I thought to actually engage this time because it seemed there was an actual discussion to be had.
Normally I have zero patience for modern American churches’ and religious groups’ have-it-both-ways demand to participate in the greater society’s political process and commercial enterprise to whatever benefit it may bring, only to then demand as well an exemption from any financial, legal or social consequence for their actions on the grounds of “religious freedom”. Whatever else, it is a stance most manipulatively cynical in the extreme and it frankly astonishes me that those among you who truly honor the integrity of your faith aren’t continually embarrassed.
To the specifics of the case at hand though it seemed, for once, there might be more to be said. Stipulating the facts as presented (despite, as has already been noted, Rod’s unfortunate tendency towards hysteria on such issues), it looked at a glance that the while decision may have been ‘correct’ from the standpoint of black letter law, in practice it’s hard to see how it reflects any practical reality and is quite likely, as has also been pointed out, ultimately destructive to all parties, present and future. How can that possibly be a positive development, regardless the foundational principle, and, let’s say it, regardless of my impulse to agree with it?
So I thought, coming here to the comments maybe to learn something.
And what do you find? A deceptively articulate mini-essay on The Evils of American Secularism As Exemplified by Its Tenets which rightly wouldn’t survive a high school English teacher’s red pen (source? source? SOURCE???) it being based on nothing – repeat, nothing – more substantive than “anyone who doesn’t believe what I do is incapable of true moral intelligence and more probably is a conscious agent of the destruction of The Family, Our Traditional Way of Life and America As We Know It”.
This by the esteemed author of “Gay Partners are House Plants”, oh say hey by the way. Please. I mean really: Please?
Or should it be: you know what, I really don’t give a damn and I’m going with The Other Side now, just because! I honestly can’t decide. Any of you who are inclined to agree with Erin want to give me the benefit of the doubt in making a sincere request for help and, well, help me out here?
And Erin: not long ago, you wrote a lovely and (to me surprisingly, for which I sincerely apologize) generous post in defense of Rod’s unemployed friend during the course of which you described your (again surprising, repeat apology) disavowal of Rush Limbaugh. Right now, based on what you wrote about Secular America, all, what, 30, 40, 50, 100 million of them (us) I’m really not seeing the difference between you.
Tell me what it is. I’m listening. I really am.
Thanks.
G



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G

posted July 8, 2010 at 7:12 am


OK, so as not just to be the anti-matter Erin…
I admit to being little more than an occasional, if sincerely interested, lurker here but I thought to actually engage this time because it seemed there was an actual discussion to be had.
Normally I have zero patience for modern American churches’ and religious groups’ have-it-both-ways demand to participate in the greater society’s political process and commercial enterprise to whatever benefit it may bring, only to then demand as well an exemption from any financial, legal or social consequence for their actions on the grounds of “religious freedom”. Whatever else, it is a stance most manipulatively cynical in the extreme and it frankly astonishes me that those among you who truly honor the integrity of your faith aren’t continually embarrassed.
To the specifics of the case at hand though it seemed, for once, there might be more to be said. Stipulating the facts as presented (despite, as has already been noted, Rod’s unfortunate tendency towards hysteria on such issues), it looked at a glance that the while decision may have been ‘correct’ from the standpoint of black letter law, in practice it’s hard to see how it reflects any practical reality and is quite likely, as has also been pointed out, ultimately destructive to all parties, present and future. How can that possibly be a positive development, regardless the foundational principle, and, let’s say it, regardless of my impulse to agree with it?
So I thought, coming here to the comments maybe to learn something.
And what do you find? A deceptively articulate mini-essay on The Evils of American Secularism As Exemplified by Its Tenets which rightly wouldn’t survive a high school English teacher’s red pen (source? source? SOURCE???) it being based on nothing – repeat, nothing – more substantive than “anyone who doesn’t believe what I do is incapable of true moral intelligence and more probably is a conscious agent of the destruction of The Family, Our Traditional Way of Life and America As We Know It”.
This by the esteemed author of “Gay Partners are House Plants”, oh say hey by the way. Please. I mean really: Please?
Or should it be: you know what, I really don’t give a damn and I’m going with The Other Side now, just because! I honestly can’t decide. Any of you who are inclined to agree with Erin want to give me the benefit of the doubt in making a sincere request for help and, well, help me out here?
And Erin: not long ago, you wrote a lovely and (to me surprisingly, for which I sincerely apologize) generous post in defense of Rod’s unemployed friend during the course of which you described your (again surprising, repeat apology) disavowal of Rush Limbaugh. Right now, based on what you wrote about Secular America, all, what, 30, 40, 50, 100 million of them (us) I’m really not seeing the difference between you.
Tell me what it is. I’m listening. I really am.
Thanks.
G



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public_defender

posted July 8, 2010 at 7:20 am


To flip this around, conservative Christians successfully lobbied to ban groups that advocated for abortion rights from receiving federal funds, even if that advocacy was with separate money (Obama rolled these back somewhat, but they were the law under Republican administrations). Doctors who receive federal payments can also be limited as to what they can say about abortion.
Dreher and Manning, if you believe its wrong for government to condition its money on the viewpoints advocated by recipients, would you agree that it was wrong for the Republicans to only allow federal family planning money to go to groups that have no role in advocating abortion rights, even with their own money?
Finally, despite what some “believe,” SCOTUS did not rule that this school could discriminate on the basis of viewpoint. The Court ruled on a very narrow question–whether it’s constitutional for a school to restrict student group funding to groups open to all students. You can make fair criticisms of that policy. You can fairly criticize the Court if you think they answered the wrong question. But the US Supreme Court did not “roll back” the right to free association in this ruling.
And, to put a different twist on my previous post, isn’t it imprudent for a religious group to seek federal funding? Taxpayers have at least some right to control taxpayer money, and isn’t it imprudent for a religious group to give taxpayers who do not share the group’s religious faith a voice in what the group does? If you choose to deal with Caesar, you deal with Caesar. And in this case, Caesar is perfectly willing to leave you alone to spend your own money as you choose.



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public_defender

posted July 8, 2010 at 7:53 am


Bottom line: Government gives out government money to advance the government’s goals. If your private group’s goals align sufficiently with the government’s goals that you are eligible for government money, the fact that you are religious should not count against you. But if you want to advance your own goals that are different than those of governments, well, that’s why you have your own money.
Also, sometimes government money has stings attached that involve the recipient’s other activities (don’t advance abortion rights, don’t discriminate against gay people). Sometimes those restrictions can go too far, but as a matter of principle, it’s fair for government to decline to fund activities (directly or indirectly) that government finds offensive. After all, don’t taxpayers get some say in who taxpayer dollars are spent?
Caesar spends his money to further Caesar’s goals, not yours. That’s one reason why it’s imprudent for religious groups to sell some of their freedom for some of Caesar’s silver.



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Richard

posted July 8, 2010 at 8:25 am


Public Defender, some of what you wrote simply isn’t true. For example:
“To flip this around, conservative Christians successfully lobbied to ban groups that advocated for abortion rights from receiving federal funds…” You mean like Planned Parenthood that receives billions in federal money?
And it is, by the way, NOT the government’s money – it’s my money and your money which is why we’re having a debate in the first place.
And “Bottom line: Government gives out government money to advance the government’s goals.” So if we elect a Christian president in 2012 whose goal is the de-secularization of public education, you’re ok with that?
I’ll be the first to say that I don’t think any student groups should be subsidized or supported by universities period. You want to meet on campus? Fine – here’s the user ideology-free user agreement. That’s a business arrangement.



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kevin s.

posted July 8, 2010 at 9:55 am


“Someone, anyone, please explain to me that a group that denies anti-discrimination laws should get free space on a college campus.”
Anti-discrimination laws have not been read so as to preclude membership in affinity or religious groups. If it did, it would interfere with the right to assemble. Nobody is credibly arguing that the CLS has violated anti-discrimination laws.
“Bottom line: Government gives out government money to advance the government’s goals.”
Perhaps that’s the way it is, but your bottom line does not reflect the intent of the Constitution.



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kevin s.

posted July 8, 2010 at 10:07 am


The posts here reflect the urgent need for Christian groups to directly challenge the logic of this decision by exploiting “all-comers” policies. In particular, I think they should hit Ginsburg where it hurts, by joining and re-directing feminist groups.
I can guarantee you that schools will find a way to have their cake and eat it too, w/r/t these policies, and that the courts will be just as sympathetic to their case.



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Peter

posted July 8, 2010 at 10:11 am


What a charming Christian response, Kevin. Incivility is always the wrong response.



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Rod Dreher

posted July 8, 2010 at 10:23 am


It should be said that the college refusing to recognize the CLS harmed the CLS in that it wasn’t allowed to be present as a group at campus events. That’s nothing to do with money.



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Franklin Evans

posted July 8, 2010 at 10:31 am


Kevin, you ignored the gist of my question: the right to free space on campus. On that basis, your response is a non sequitur.
Rod, being denied free space (and listings in college publications, etc.) is not the same as being denied a presence on the campus. Being barred from college-sponsored (and funded) events is not a denial of rights, it’s a inconvenience.



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Loudon is a Fool

posted July 8, 2010 at 10:39 am


Alito in his dissent also concludes that money has nothing to do with this. It’s $85. That said, the 8 students from CLS should take over the gay group with 5 members and use their $85 to buy material from Focus on the Family that they can distribute on the free speech quad. Rinse, repeat. This happens all the time at colleges. It’s good times for all involved. Why this case went to the Supreme Court is beyond me when self help would be far more effective and would better illustrate the idiocy of an all comers policy. Presumably, if Hastings did not have an all comers policy they could not require that CLS embrace sodomy (I think that’s basically what Rosenberger holds; if a college is going to allow political and religious groups on campus the institution can’t engage in viewpoint discrimination to determine which groups it likes and which groups it doesn’t like). In truth, as Alito points out, it’s not really an all comers policy but CLS might as well take Hastings at its word for what it’s worth (which is not much).



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Peter

posted July 8, 2010 at 10:53 am


Why this case went to the Supreme Court is beyond me
National CLS was hunting for a test case. A CLS not affiliated with the national organization lived with the rules for a decade at Hasting and a conflict only arose when they joined the national group which had a more militant approach



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kevin s.

posted July 8, 2010 at 11:01 am


“What a charming Christian response, Kevin. Incivility is always the wrong response.”
Hogwash. The Bible is full of calls to incivility. Christ was uncivil on many occasions. Student protests are uncivil. By your standard, refusing to give up your seat on a bus is uncivil.
“Kevin, you ignored the gist of my question: the right to free space on campus. On that basis, your response is a non sequitur.”
No it isn’t. Your questions was flawed in its premise.



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Franklin Evans

posted July 8, 2010 at 11:01 am


Occam’s Razor indicates that the stated and demonstrated purpose of a group intended for students is the primary point of all of this. The only reason a cabal of CLS members would join another group would be to circumvent the college policies and sabotage the purpose and intent of the other group. They would do well to read Machiavelli first, to at the least console their Christian consciences concerning deception and malicious intent.
C’mon, people. Why is it so easy to lose sight of the reason young people show up at college? Why do we tolerate the arbitray and capricious agenda promotion of religious and political groups whose only intent is to impose their beliefs on others? Do we really want college groups to become the training ground of future ideological tyrants like the leaderships of the Democan and Republicat parties?
Do you want to normalize lying and cheating?



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Your Name

posted July 8, 2010 at 11:04 am


“this case gives the possibility of tyranny by majorities. Any majority group can quash all minority groups by joining them and voting changes in their purpose.”
EXACTLY like what happened with Prop 8.



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Franklin Evans

posted July 8, 2010 at 11:05 am


Describe the flaws, then, Kevin. From where I sit, all you did was answer a question I did not ask. I spend inordinate amounts of time responding to flawed questions by pointing out those flaws, and I have no difficulty being on the receiving end.
If, as I often do, you want to draw a line between two distinct questions, then do so explicitly. Quoting my text would not be necessary.



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hlvanburen

posted July 8, 2010 at 11:05 am


Erin Manning: “So, Geoff, if the former members of the CLS all joined OUTLAW as voting members, ran for board positions according to the group’s policy, and took over the group, effectively ending its LGBTQ advocacy, you’d have no problem whatsoever with this, right?”
What is preventing that from taking place today, Ms. Manning? Or for that matter, what prevented it from happening a year ago? How does this court decision change anything affecting the idea of a hostile takeover?
This seems like an argument that really does not apply here, as the situation you described existed well before the filing of the lawsuit against CLS.



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hlvanburen

posted July 8, 2010 at 11:07 am


Interesting that the “Resolution on the Statement of Faith and Sexual Morality Standards” on the CLS website is kept under lock and key, open to members only.
What are they ashamed of, I wonder?



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Chuck Anziulewicz

posted July 8, 2010 at 11:10 am


This was never about freedom of expression or religion, since the Christian Legal Society is still free to discriminate against whomever they wish. At issue here is whether a PUBLICLY-funded school was obligated to support, and thus tacitly approve, an organization that discriminates. Would you want YOUR tax dollars being used to fund organizations that discriminated against Christians? NO? I didn’t think so. Nor do I want MY tax dollars being used to fund organizations that discriminate against Gay people.



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Robert Shibley

posted July 8, 2010 at 11:38 am


There is a lot of confusion in these comments about certain facts about this case. Let me clarify some of these issues:
1. CLS’s restriction only applied to voting members and leaders. Anyone was allowed to come to meetings, Christian or not.
2. Student fee funding is not “tuition money” or “tax money” or even “government money.” The Supreme Court has determined that student fees are money belonging to the students, not the government, which is why it is allocated by student governments. See the Supreme Court cases of Southworth and Rosenberger (you can Google them).
3. The issue of subsidy here was not primarily about access to actual cash (which would be minimal) but more about access to university resources such as meeting in empty classrooms, setting up tables on the quad to distribute literature, e-mail listservs, etc. As Justice Alito points out, the Martinez decision legitimizes preventing CLS from using any of these, even if they would not actually cost the university any money at all (for instance, setting up a table to pass out pamphlets). Justice Ginsburg argued that this was not a problem because CLS could use things like Facebook to organize if they were banned from university mail servers, and suggested that there were plenty of secret societies on campuses that did that and remained successful, so it was OK for CLS to have to do that as well.
According to this ruling, at universities with “all comers” policies, Democrats must allow Republicans to join their clubs, become leaders, attend all meetings, etc., and vice versa. Muslims must allow Jews to join their clubs and vice versa. While Justice Ginsburg dismissed the idea of problems stemming from this as improbable, I think that represents a serious failure of imagination, especially considering the tension between Muslim and Jewish groups on California campuses like SFSU and UC Irvine. If such a takeover were to take place, I would submit that things would get very ugly very fast.
My organization, FIRE, submitted an amicus brief in support of CLS in this case. You can read a lot more about out take on the decision on FIRE’s blog at thefire.org/thetorch, if you are interested.



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Dan K

posted July 8, 2010 at 11:49 am


Rod -
You seem to want to have it both ways. Following the thinking you seem to want exclusive religious organizations to be able to accept funds from a state chartered/public entity, yet still be able to maintain the right to exclude people who do not subscribe to their religious beliefs. Following this logic, you would seem to have no problem if Congress appropriated tax money to specific denominations for charitable works, and let those denominations provide the work for only their members.
A GLBT group at the school in question would also have to allow non-GLBT students, even those not supportive of GLBT-friendly policies. Equal treatment, same as the CLS. This allows the school to balance free exercise, free speech, and non-establishment.
The First Amendment non-establishment clause means simply this — if you want to remain an exclusive organization, you must remain PRIVATE.



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Geoff G.

posted July 8, 2010 at 11:52 am


Erin MAnning
So, Geoff, if the former members of the CLS all joined OUTLAW as voting members, ran for board positions according to the group’s policy, and took over the group, effectively ending its LGBTQ advocacy, you’d have no problem whatsoever with this, right?
Read the bylaws I linked to, Erin. It’s not a question of whether I’d have a problem with it or not; I’m not a member, nor am I eligible to be one (because I’m not a full time student at Hastings).
According to OUTLAW’s bylaws, yes indeed, the entire membership of CLS is perfectly welcome to show up and join as voting members, regardless of their orientation or beliefs.
Might they serve on OUTLAW’s board? My reading of the bylaws suggests that board members don’t even need to be drawn from the voting membership of the group, only that the “members should reflect the demographic make-up of the general membership.” Other than that, “anyone may volunteer to serve on the Board.”
Personally, I think it would do some of the CLS membership good to get involved in an organization like OUTLAW. I think that would go directly to supporting OUTLAW’s stated mission, “to educate the community at large about the issues and concerns specific to lesbians, gay men, bisexuals, transgendered, and queer persons in order to alleviate and eradicate homophobia, transphobia, racism, sexism, and other affronts to the dignity of individual human beings.” Reading the opinions, I find that Justice Kennedy agrees with me and concurred for precisely this reason.



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Loudon is a Fool

posted July 8, 2010 at 11:52 am


Chuck,
Although the case is convoluted, it does not appear to prohibit a student group at a public university from requiring that its members eschew crimes against nature. The ruling is that an all comers policy does not violate the rights to freedom of association of student groups. Period. If the university did not have an all comers policy I suspect they could not require, for example, that La Raza welcome Klansmen into their organization.
Franklin,
Agreed that growing up on dirty tricks is problematic. But with the universities putative all comers policy there is no need to lie. You show up on election day and tell the member of the gay group: “To bad you didn’t have a bigger showing today. We’re voting ourselves in and then we’re going to use your $85 to do $85 worth of things you won’t approve of.”
Of course, $85 is nothing. When I was in college the gays would get a few thousand dollars to show John Waters flicks in an auditorium of 6 people. Then again, these are law school student groups which tend to be far less active than undergraduate groups due to the need for law students to do things like study.



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Chuck Anziulewicz

posted July 8, 2010 at 12:08 pm


In response to “Loudon is a Fool” …
You may take some comfort in knowing that there are already conservative Christians students who are responding to the SCOTUS decision by planning to infiltrate Gay student organizations specifically for the purpose of destroying them. Sounds positively Breitbartian to me!



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the stupid Chris

posted July 8, 2010 at 12:09 pm


who is paying the piper at a state university? In this case, the people of California generally, and all the students attending the school who pay into the activities fees specifically.
That’s correct, which is why it’s proper to not have that money spent on religious organizations.
I grew up in California when prayer was allowed in the public schools. When my parents discovered that under that rubric I was being taught that the Catholic “Our Father” was wrong and the Protestant one was correct, and when they learned that I was being taught that Catholics didn’t know how to pray properly but Protestants did, they yanked me into parochial school within a week.
You complain about secularism, I’d rather have a secular state than one that created a kind of non-demonimational porridge of my faith.
Hastings acted properly. CLS is free to have its presence but not with school sponsorship. In fact, one of the things that might be talked about is why universities are sponsoring clubs at all, but that’s another topic.



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Franklin Evans

posted July 8, 2010 at 12:10 pm


Loudon, you may want to reconsider your initial agreement (for which I’m grateful, regardless).
I’m not willing to offer a free pass to those with nefarious intent because they can take advantage of a “loop hole” in a policy, of which “anyone” can do the same. How is that not a somewhat ambiguous endorsement of “dirty tricks?” Just because a thing is possible, not explicitly prohibited, doesn’t make it ethical.
Despite my combative tone, I do take both sides seriously*. I intend to take the time to follow up on Mr. Shibley’s post, for which I also thank him. I won’t apologize for my criticism of the piles of straw and misdirection taking place in this thread. I found the premise and logic simple, but so far Kevin is the only person on this thread whose posts give me rational hooks to latch onto.
* If members of a GLBT group infiltrated another group with anti-GLBT positions for the sole purpose of sabotaging it, they’d lose my respect and personal support in a heartbeat.



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Dan O.

posted July 8, 2010 at 12:11 pm


“The posts here reflect the urgent need for Christian groups to directly challenge the logic of this decision by exploiting “all-comers” policies. In particular, I think they should hit Ginsburg where it hurts, by joining and re-directing feminist groups.”
Let’s not get wedgies over this.
They can go ahead. In the process they’ll alienate entire campus communities. The faculty advisor will drop the group after takeover. The original members wills start a new group (with their original faculty advisor) and get rushed funds by an ad-hoc faculty or student assembly vote. They’ll schedule meetings (which must be announced for votes to occur) at the same date and time of the older group, thus neutralizing those who took it over. All the while, it’ll give feminist groups lots of neat press about the invasion of safe-spaces.
College students have handled this in the past and will handle it again. In the process they’ll learn that ideological zealotry and paranoia is pointless and self-destructive. I think that’s a useful education. And maybe, just maybe, as Geoff indicates, opponents will learn something about the humanity of each other.



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Dan O.

posted July 8, 2010 at 12:16 pm


P.S. As somebody who was an officer of several student organizations as an undergraduate, we were granted money for *specific items consistent with our bylaws* every academic year, applied for at the end of the previous academic year. It’s not so easy for a group to take over another and make off with their budget. The outing club wouldn’t be given money to put on a tractor pull.
So, please everyone, some sanity. On the other hand, a takeover group could’ve housed my coffee and donuts money for philosophy discussion. It would’ve been tragic.



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Loudon is a Fool

posted July 8, 2010 at 12:43 pm


Franklin,
I wouldn’t liken it to scooping out all of the pennies from the penny tray. (“For the crippled children?” “No, that’s the jar.”) An all comers policy is idiotic. If speech at issue regarded anything other than criticism of homosexual sex acts the usual suspects would recognize its idiocy.
The groups at issue are student groups where students with similar interests come together for discussions and the organization of campus activities and they anticipate (and typically require) that their organizing body and voting members be made up of persons of like outlook. All student organizations in all places throughout history have functioned this way. All student organization, I guess, except for those opposed to sodomy. In California the contra-sodomy position is verboten.
Oddly, in spite of the protestations of Hastings’ to the contrary, that’s also how Hastings functioned prior to CLS bringing their case. Which is why the by laws of La Raza, the College Democrats and the College Republicans were all exclusionary. And that is the way college organizations should function.
But per this opinion they no longer function that way at Hastings. Which is absurd. When that absurdity prevents CLS from functioning as a legitimate student group because the college insists on quelling the ability of those students to associate I think the should should exploit it. It’s political speech. It’s a bit unseemly. And reminiscent of the kinds of things hippies and Democrats of old engaged in (which does gives me pause). But it’s also college. Provided the CLS students follow only the play book a radicals and not their hygiene it’s probably ok. At least until they get jobs and have more important things to worry about. Hastings, by their actions, apparently desires chaos. Give it to them. Maybe they will decide they don’t like chaos and adopt a more rational policy.



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kevin s.

posted July 8, 2010 at 12:45 pm


“They can go ahead. In the process they’ll alienate entire campus communities.”
Alternately, they can employ the college Republicans to help with the effort. Or, they can simply wait until a student from another group demands membership, and return fire.
And yeah, the whole enterprise will be alienating. I don’t think we should surrender basic freedoms because the exercise of those freedoms is unpopular.
“The faculty advisor will drop the group after takeover.”
Most groups aren’t required to have one.
“The original members wills start a new group (with their original faculty advisor) and get rushed funds by an ad-hoc faculty or student assembly vote.”
Isn’t this exactly the sort of thing opposed by supporters of this decision? You have certain affinity groups, which, by virtue of their ideology or philosophy, move to the front of the line in terms of funding?
If your scenario plays out, then we have discovered that, indeed, the membership standard will be applied inconsistently.
To me, that’s the point. Colleges are happy to have membership requirements, de jure or de facto, as long as Christianity is not a requirement.



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Loudon is a Fool

posted July 8, 2010 at 12:55 pm


Dan O.,
I suppose different groups work in different ways. When we took over the College Democrats as a joke we technically took over the bank account containing money raised from members and campus activities and presumably could have put on the same events with student fee money that had been budgeted for in the preceding year (although in all probability had the faculty sponsor resigned and the state party sent nasty letters to the chancellor things would have never proceeded that far; but how those issues would have been resolved was far from clear). It didn’t come to that because we gave the group back. And if it’s any consolation, Franklin, I did feel kind of bad about it (mainly due to the embarrassment and frustration felt by the members of the organization who really were good folk and didn’t deserve to become the but of someone else’s joke). Although it was very funny. And that has to count for something.



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Dan O.

posted July 8, 2010 at 1:35 pm


“Isn’t this exactly the sort of thing opposed by supporters of this decision? You have certain affinity groups, which, by virtue of their ideology or philosophy, move to the front of the line in terms of funding?
If your scenario plays out, then we have discovered that, indeed, the membership standard will be applied inconsistently.
To me, that’s the point. Colleges are happy to have membership requirements, de jure or de facto, as long as Christianity is not a requirement.”
If you like free speech, let a thousand flowers bloom. If one group is steadfastly committed to a campaign of silencing others with a certain viewpoint, it will be known. Starting a new group simply furthers the conversation. There’s still open membership. What’s the problem?
Faculty assemblies or student associations may or may not have the discretion to fund the new groups. But I see no reason why they should not.
And, btw, my playbook works equally well for feminists or Christian groups. So no trouble with unequal application there.
Furthermore, do you really think Christian groups could just employ College Republicans to do their bidding? You’re ability for self-caricature rivals a Vice Presidential candidate’s.



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Karl G

posted July 8, 2010 at 1:35 pm


Erin,
Point 5 is where you fall apart (aside from the oxymoron of branding “secularism”- the de facto nature of the state- as a religion) You also are trying too hard when you try to twist “legal and illegal” into “good and evil”. The state’s concerns are matters of legal and illegal, and ethical and unethical. It necessarily must be completely orthogonal to good and evil- those aren’t its domain to act on, because it has an obligation to allow for all interpretations of morality that fit within the ethical and legal guidelines that you noted in your first four points.
The main failing on 5 is a reflection of that. It’s outright false to say that the state forbids anyone to pray, it only forbids people from forcing others to pray as a precondition to receiving a state benefit or otherwise lending the impression that the state favors any one religion over the other. From there you proceed even further into the mistake of confusing “no longer extending a privileged status” with “treating with contempt” There may be many individuals that actually do harbor such contempt for beliefs that don’t match there own, but that’s an entirely different matter from the state insisting that its funds be used according to consistent ethical guidelines and not to promote any given faith.



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hlvanburen

posted July 8, 2010 at 1:40 pm


I find it interesting that for so many supporters of CLS the first reaction is to go to other groups on campus and take them over just to prove a point.
Religion truly does poison everything.



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Dan O.

posted July 8, 2010 at 1:51 pm


“If speech at issue regarded anything other than criticism of homosexual sex acts the usual suspects would recognize its idiocy.”
Open membership has been used by whites to get into (and vote at) African American Student Unions, and countless other instances. Happened when I was in school. Big deal. Feeling all aggrieved by that kind of thing is crybaby stuff.



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Loudon is a Fool

posted July 8, 2010 at 1:55 pm


Dan O.,
Closed membership has been used by political student organizations to prevent opposed organizations from taking of their organization in countless instances. Happened when I was in school. Big deal. Feeling all aggrieved by that kind of thing is crybaby stuff.



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stefanie

posted July 8, 2010 at 2:04 pm


SCOTUS has been accused of siding against CLS because the majority didn’t like CLS’s message. Would those objecting to the ruling still have objections if it was the *Muslim* student association that banned non-Muslims, or even better, banned women law students because their interpretation of Islam didn’t hold with that?
Some other points. Geoff G. says: What if you’re a gay Christian (yes they do exist) who actually does believe everything in the Statement but somehow runs afoul of the mysterious “Resolution on the Statement of Faith and Sexual Morality Standards” that the CLS keeps hidden from public view?
A *publicly-funded/supported* student group has *secret* conditions for participation? That alone should have gotten them booted from campus support.
So am I to conclude from Wendy Kaminer’s statements about the supposed untouchability of not-for-profits that she disagrees with the 1983 Bob Jones University v. United States case, which revoked BJU’s tax exempt status for racial discrimination?
And give me a break about “takeovers.” Official student organizations, paid for by *the taxpayer’s dime,* should be open to all full-time students (as the Hastings gay student group bylaws provide.) And if the organization doesn’t have the internal health or integrity to forestall a “hostile takeover,” well, c’est la vie. In fact, this isn’t much different from a political party. 90% of politics is showing up. 



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Dan O.

posted July 8, 2010 at 2:19 pm


“Closed membership has been used by political student organizations to prevent opposed organizations from taking of their organization in countless instances. Happened when I was in school. Big deal. Feeling all aggrieved by that kind of thing is crybaby stuff.”
Not aggrieved. Transparency and non-exclusion is a value of higher-education, sanctioned by the court. That said, being a pirate yourself, why do you care? It’s all just a game, right?



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Loudon is a Fool

posted July 8, 2010 at 2:36 pm


I suppose non-exclusion is a value of sorts. There are also other values. Freedom of association, for example. Odd that one is favored by the Constitution. Probably because free association is an important element of a free society whereas non-exclusion is not. The two values are inherently in conflict. You cannot freely associate if a public university can tell you who you must associate with. The case in point provides an excellent example of why that is the case. Were free association the norm gays could get together and talk about weird stuff, and CLS members could get together and talk about normal stuff. Where non-exclusion is the norm no one can get together in any meaningful sense because each person is prohibited from making determinations regard the persons he or she wants to get together with. Of course, at Hastings, people did get together and freely associate prior to CLS; but that’s only because Hastings imposes it’s non-exclusion policy selectively when it wants to discriminate against viewpoints it doesn’t like.



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Erin Manning

posted July 8, 2010 at 2:41 pm


Well, Karl G., that “prayer before senior meals” example wasn’t made up. A group providing low-cost meals to seniors didn’t mind when the seniors bowed their heads to pray before eating–until they got clarification from a federal office telling them that no, meals paid for with federal funds had to remain unblessed (though the seniors could have a ‘moment of silence,’ apparently to mourn their lost liberty). After the news media seized hold of it, a flurry of new guidelines appeared as if by magic and the federal rules were “clarified” to allow the seniors to pray, even out loud, if they wished. If the story hadn’t become news, though, the original policy (e.g., that meals provided on the federal dime could not be prayed over) would likely have remained in place.
As for my argument in general about secularism, I point to a comment by Public Defender, who wrote: “Bottom line: Government gives out government money to advance the government’s goals. If your private group’s goals align sufficiently with the government’s goals that you are eligible for government money, the fact that you are religious should not count against you. But if you want to advance your own goals that are different than those of governments, well, that’s why you have your own money.”
In other words, a group like Catholics for a Free Choice might receive government funds under some circumstances, because they support the government’s goal of killing babies (good). However, a crisis pregnancy center generally would *not* receive these funds because not only do they not support the government’s goal of killing babies, they will not refer their clients to places which will kill the baby. This makes them, their goals and aims, etc., “bad” from the government’s perspective.
It doesn’t matter how many citizens share the second group’s views, or even if those citizens are not religious at all, but convinced by the science of human embryology that unborn children should not be killed. The government’s money (which used to be ours)exists to advance the government’s goals. Dead babies = government goal. Live babies are not.
It should be noted, by the way, that the CLS case didn’t originate as an “all-comers policy” debate, but as a discrimination one; the school changed directions early on in the legal case, as I recall. Further, the “all-comers policy” the school insists on was not, at the time, a written policy, which raises the question: if, say, the college’s Democratic club had been taken over by Republicans, would the college have intervened to stop it?
They can’t, now, of course. But whether they could have done so when the “all-comers policy” was an unwritten rule is hard to say.



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CharlesRfromHinsdale

posted July 8, 2010 at 2:49 pm


I suspect that the “all comers policy” was made up after the fact, which Justice Alito documented rather well in his dissent. Hastings KNEW that their nondiscrimination policy could not hold up under First Amendment review. The court majority knew that too, and grasped at the straw offered.
I’m not sure freedom of religion is what took a hit — but freedom of association certainly did. On the other hand, since the court did NOT rule on the constitutionality of the nondiscrimination policy, it is entirely possible that a future case will rule such a policy in violation of a plaintiff’s first amendment rights. Supreme Court decisions obtained by narrowing the argument have rather narrow application as precedent!
The question to accepting funds cuts every possible way. I can remember when conservative students complained about their fees funding civil rights organizations, anti-war protests, etc. What CLS really wanted, however, was use of rooms on campus to meet, use of campus student communication channels to announce events, and tables in the common areas of the campus. Those are proper matters for First Amendment jurisprudence, as long as the school permits such uses to any student groups at all.
Perhaps FUNDING student organizations, as a distinct question, should be curtailed entirely.



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Peter

posted July 8, 2010 at 2:56 pm


The court majority knew that too, and grasped at the straw offered.
The straw being that CLS’ lawyers abandoned that argument at the trial level and therefore was not an issue for any court that heard the case?



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BobSF

posted July 8, 2010 at 3:23 pm


2. Student fee funding is not “tuition money” or “tax money” or even “government money.” The Supreme Court has determined that student fees are money belonging to the students, not the government, which is why it is allocated by student governments. See the Supreme Court cases of Southworth and Rosenberger (you can Google them).
And then you proceed to list all the free things recognition brings. Maybe you’ve never been part of a student group’s leadership, but the costs of renting space and equipment are huge. That’s where the tax dollars come in. The university pays for keeping the lights on, providing security (if you’re familiar with Hastings’ location, you can imagine why that’s necessary), providing tables, etc. If you think providing space is “free” to a school, you haven’t been a building administrator either.
The case in point provides an excellent example of why that is the case. Were free association the norm gays could get together and talk about weird stuff, and CLS members could get together and talk about normal stuff.
Uh… I think you need to turn that around. The gay students would talk about politics and design and music and movies. The CLS students would talk about sodomy and how to stamp it out.



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Rawlins Gilliland

posted July 8, 2010 at 7:19 pm


The funny thing is here that when I went to Boy Scout camp back in the day, it didn’t take me long to recognize that, who knew; night time was apparently the right time for a whole lot of guys having group sexual activity in virtually any tent. This was hardly a group of Liberace quoting sissies. It was All-American boy scouts in a nature retreat setting. I was sorta shocked despite having grown up in an artists’ home with exposure to a wide world of diversity, however it was defined, across the board. I’m sure I hardly had a unique, unprecedented exposure to bizarre practices in Boy Scout camps or for that matter saw young/teenage camp leaders who were aberations. Trust me, folks: Don’t ask / Don’t tell has been a huge part of the Scout’s secret code. So this whole thing makes me laugh.



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CharlesRfromHinsdale

posted July 9, 2010 at 1:32 pm


Peter, you should read Justice Alito’s dissent (it’s available from justia.com, among other sites). The stipulation entered into in federal district court accepted that Hastings has an “all-comers” policy. That was probably a tactical error, but CLS did not accept that the “all-comers” policy was THE reason they were denied recognition. The entire factual record makes very clear that CLS was denied on the basis of a nondiscrimination policy.
Because the case was narrowed down in this way, some future case may well rule that a similar nondiscrimination policy does violate the free association rights of CLS, or some other group. All that the court has ruled, so far, is that if a college requires the Democratic Club to admit Republicans, then it may also require the Christian Legal Society to admit “unrepentant” homosexuals. I don’t think any college would adhere to such a policy for long.



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