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Barry, you’re right. This is a very important case. In your assertions, though, you minimize the threat that blind enforcement of “non-discrimination” policies can pose to expressive associations such as the Christian Legal Society (CLS) who seek to ensure that their leaders will share the basic beliefs and core values of the organization.
CLS is not seeking any special privilege; every organization should be permitted to ensure that its leaders and voting members adhere to the organization’s core principles.
If an organization cannot limit its leadership and voting membership positions to students who share a commitment to the group’s value system, there is no effective way of preventing students who wish to change or undermine the group’s values from taking it over.
Students who do not share the group’s core beliefs are free to form their own organizations.
While you note that CLS has not been “singled out” for its beliefs, a law or policy may violate the First Amendment even when it is applied evenly across the board. As you know, in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Supreme Court held that the First Amendment prohibited New Jersey from applying a non-discrimination law to the Boy Scouts in a manner that would require the organization to accept members who did not comply with the organization’s moral code. The government’s interest in combating discrimination did not justify such a severe burden on the group’s freedom of expressive association. Similarly, UC-Hastings’ interests do not justify its infringement upon CLS’s ability to effectively function.
Although you correctly note that, in some circumstances, the government need not provide financial support to organizations that express a viewpoint with which the government disagrees, different principles come into play when a public forum is involved, and public university student fee systems are generally a forum for expression.
Just as the University of Virginia violated the rights of a Christian student organization by denying it student activities funding for a proselytizing newspaper, UC-Hastings violated the rights of CLS by excluding the organization from its funding program. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995).
While some students may object to being required to indirectly fund an organization that takes positions with which they disagree–whether that organization is CLS or another group–that is an inherent part of the student fee system.
The Supreme Court has observed that the requirement of viewpoint neutrality in the distribution of student funding is the principal means of protecting the rights of students who disagree with the beliefs of student groups that receive funding. Bd. of Regents v. Southworth, 529 U.S. 217 (2000).
Barry, the fact is that Supreme Court precedent underscores the First Amendment protections afforded to religious organizations. As we indicated in our amicus brief, that’s exactly why we are asking the Supreme Court to overturn the Ninth Circuit and move to uphold the constitutional rights of groups like CLS.
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