Jesus Creed

Lawbook.jpgWe are fortunate here at the Jesus Creed blog to have so many readers and commenters. One of whom is “T” and he is a lawyer. Here are his reflections on the SCOTUS ruling on the California case, and I hope we can have a good conversation about this. 

Should Christian organizations be protected by the Law so they can include in their groups only those who affirm their guidelines?

What a field
day for the heat. Monday, the Supreme Court handed down a 5-4 decision in the
case of Christian
Legal Society v. Martinez
Members of the Jesus Creed community may remember that David
Opderbeck posted his thoughts here on the then pending case
, which I urge
folks to revisit, both for the basic facts of the case and, perhaps more
importantly, for David’s astute questioning of the often presumed appropriate
Christian response to this kind of ruling, which we will revisit later.  David and one of his colleagues have
also posted brief initial responses here
and here,
respectively, which are also worth reading in full.

In a nutshell,
the ruling: the Court, via a majority opinion written by Justice Ginsburg, has
answered the following question in the affirmative:

“May a
public law school condition its official recognition of a student group–and the
attendant use of school funds and facilities–on the organization’s agreement to
open eligibility for membership and leadership to all students” including
those “who do not share the organization’s core beliefs about religion and
sexual orientation” or any other matter?

Therefore, it
is (now) lawful (but certainly not required) for a public law school to make
and enforce a rule that prohibits any
student organization (“RSO”) from denying membership
or leadership to any student based on the student’s “beliefs or status,”
regardless of the raison d’etre of the group.

To be clear, under the law school’s “All-comers”
rule that is at issue in the majority opinion, registered Republicans could
join a “Democrat” RSO and vice-versa, a Muslim could join (and be an
officer in) a Jewish RSO, etc.  Each
student group in a school with such a “All-comers” policy, therefore,
must choose between (i) the right to discriminate on membership and leadership
and (ii) the benefits of being an “RSO” which consist, in this case,
of being eligible to seek financial assistance from the law school, use of law
school facilities for meetings and office space, use of the school’s name and
logo,  and use of the law school’s
channels to communicate with students (placing announcements in a weekly
Office-of-Student-Services newsletter, use of designated bulletin boards, using
a Hastings-organization address, and participating in an annual Student
Organizations Fair).   

Many things could be said of the majority opinion, not many of them positive at least by me (some of which I’ll get to later), but I’d like to make specific note of the following at this stage which can help keep it in perspective: 

1. The benefits at issue here (given to RSO’s) were essentially: (i) Use of public school money, (ii) preferred use of public school facilities (physical and electronic) and venues, and (iii) visibility within official school channels for student groups (the latter very likely being the most significant to CLS).  

2. The majority opinion and Kennedy’s concurring opinion put much stock in the fact that this was a school rule, and that a school should be given latitude to guide and restrict student groups that it facilitates in order to accomplish its educational goals, which in this case were obviously weighted toward diversity interaction.  Non-lawyers should note that the majority’s emphasis on this educational context creates a built-in hurdle for using this case as precedent outside of an educational context.

3. It’s premature to expect this “All-comers” policy to sweep the nation’s universities; chiefly because it is questionable whether many school leaders would want such a policy (or even if the school in the instant case does–see pages 5-9 of J. Alito’s dissent).  Such a policy will very likely manage to aggravate all student groups (and the administrators who oversee them) who want to organize around a shared viewpoint, mission, or experience unless that mission is interactive diversity. 

4. The far more common “non-discrimination policy” of the law school (which it changed, mid-litigation, to an All-comers policy as it applied to RSOs) and the school’s selective application of that policy to CLS that the dissent felt was at issue in this case, was not addressed by a majority of the Court; which means that the Court dodged, for now, the more significant issue that this case presented which still looms for another day and (hopefully) another set of litigants.  The justices were significantly at odds about what was properly at issue in the case based on the stipulations and admissions of the parties, which makes for more thunder and lightning in the majority, concurring and dissenting opinions than actual rain that folks on the ground can use.

I could go on at this point to list the specific facts of this case, both substantive and procedural, that the majority either minimized or ignored (largely by putting carefully chosen procedural fingers in their ears), which troubles me as a Christian and even more so as a lawyer, but the bulk of those concerns are covered in depth by J. Alito’s dissent, which, if we discuss at all will need to be in another post.  But more importantly, arguing those facts in this post would, I think, only serve as a red herring and unwisely inflate the precedential scope and significance of this case.  The fact is that the Court’s ruling in this case is expressly limited to an “All-comers policy” and one that is supposedly equally enforced on all student groups.  Whether law schools or universities of any significant numbers will now pursue such a policy remains to be seen, and I, for one, am skeptical.   

But regarding the majority ruling itself, I will offer a few comments: First, many will feel that it is political correctness taken to an extreme–now with Constitutional blessing at the expense of religious association rights.  I tend to agree, though it is perhaps more technically a victory for the power of educational institutions vis a vis their students more than a victory for political correctness.  Either way, it’s hard to celebrate this decision if you’re a fan of religious freedoms.  Secondly, any time that the Supreme Court turns a deaf ear to what appears to be selective enforcement of what is supposed to be a neutral rule (see pages 7-8 of J. Alito’s dissent), whether directed toward Christians or any other viewpoint-centered group, I am concerned and disappointed.  The majority, IMO, ignores, ironically, a discriminatory injustice that is obvious to me from the record.   So this is a disappointing decision from more than one angle.

But none of that dictates an answer to the big question, which is, IMO “How should Christians respond?”  

Before I give my own take on how I hope Christians think about and respond to this case and similar issues, I’ll throw the whole matter open for general comment and discussion:

  Is this ruling a major setback for Christian groups? For Christian mission in this country?  Why or Why not?  How do you think Christians should respond and why?  More specifically, how do you think that Christians and God’s mission at this specific law school will be affected now that they can no longer set up a table at the student organization fair, use the RSO boards and office space and use the school’s name and logo?    What do you see is the real significance of the decision?

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