{"id":295,"date":"2010-07-01T09:16:39","date_gmt":"2010-07-01T09:16:39","guid":{"rendered":"http:\/\/blog.beliefnet.com\/lynnvsekulow\/2010\/07\/the-supreme-court-missed-the-m.html"},"modified":"2010-07-01T09:16:39","modified_gmt":"2010-07-01T09:16:39","slug":"the-supreme-court-missed-the-m","status":"publish","type":"post","link":"https:\/\/www.beliefnet.com\/columnists\/lynnvsekulow\/2010\/07\/the-supreme-court-missed-the-m.html","title":{"rendered":"The Supreme Court Missed the Mark"},"content":{"rendered":"

Barry, <\/font><\/span><\/p>\n

<\/span> <\/p>\n

<\/span>This decision is both disappointing and troubling.  <\/span>By a vote of 5-4, the Supreme Court <\/a>dealt a damaging blow to First Amendment law for religious organizations in the case of <\/span> <\/span>Christian Legal Society v. Martinez<\/span><\/i>.  <\/span><\/span><\/font><\/p>\n

<\/span><\/span><\/font> <\/p>\n

<\/span><\/span><\/font>The Supreme Court was presented with the following question: “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?”<\/span><\/p>\n

<\/span> <\/p>\n

<\/span>By a one vote margin, the high court upheld the University of California-Hastings College of Law’s application of its policy withholding Recognized Student Organization status from any group that excludes members on the basis of religion or sexual orientation (among other things) to the Christian Legal Society (CLS).   <\/span><\/span><\/p>\n

<\/p>\n

CLS sought to ensure that its members and leaders would adhere to a statement of faith and code of conduct, including the belief that sexual activity should not occur outside of a marriage between one man and one woman. <\/span><\/p>\n

<\/span> <\/p>\n

<\/span>CLS said it could not abide by the school’s non-discrimination policy. That policy forbids student groups from discriminating on the basis of, among other things, “religion.”   <\/span>CLS says its religious beliefs prevent non-Christians from exercising control over the group by becoming voting members or serving in leadership positions.  <\/span><\/font><\/span><\/p>\n

<\/span><\/font><\/span> <\/p>\n

<\/span><\/font><\/span>This decision significantly limits the constitutional rights <\/a>of religious organizations. <\/font><\/span>The Court missed the mark in understanding that it is fundamental to religious freedom and the freedom of speech that religious groups are free to define their own mission, select their own leaders, and determine their own membership criteria.  <\/span>By permitting a problematic decision by the federal appeals court to stand, the Supreme Court decision represents, as Justice Samuel Alito correctly concluded in the dissent, ‘a serious setback for freedom of expression in this country.’  <\/span><\/font><\/span><\/p>\n

<\/span><\/font><\/span> <\/p>\n

<\/span><\/font><\/span>We have argued that the First Amendment prohibits a public law school from denying recognition to a religious student group because the group requires leaders and members to agree with its core religious viewpoints.<\/span><\/p>\n

<\/span> <\/p>\n

<\/span>We filed an amicus brief <\/a>with the Supreme Court in the case representing <\/span>more than a dozen Christian leaders and organizations active on college and university campuses – including Fellowship of Christian Athletes, Campus Crusade for Christ, InterVarsity Christian Fellowship, Young Life, the Navigators, and the Fellowship of Catholic University Students.  <\/span><\/font><\/span> <\/span><\/p>\n

In our amicus brief, we spelled out very clearly our belief  <\/span>that religious groups are constitutionally protected in following their religious beliefs.<\/font><\/span><\/p>\n

 <\/font><\/span><\/p>\n

“Religious groups by their nature embrace religious principles and, as a matter of organizational identity and coherence, will normally require adherence to such principles as a criterion for membership and certainly for leadership,” the brief asserted.  <\/span>“This is not ‘discrimination’ but rather part and parcel of what defines them as religious groups.  <\/span>Wooden application of religious ‘non-discrimination’ policies therefore forces religious groups to choose between their religious identity and access to the forum.  <\/span>That ‘choice’ is an unconstitutional one between yielding to government intermeddling and no access at all.  <\/span>Far from a permissible condition on benefits, this is a choice that the government, under the Religion Clauses, has no business imposing on religious groups.”<\/font><\/span><\/p>\n

<\/span> <\/p>\n

<\/span>Unfortunately, the majority opinion written by Justice Ruth Bader Ginsburg concluded that CLS, in order to be recognized as a student organization,  <\/span>must accept all students who wanted to join the group. “CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy,” she wrote.  <\/span>“Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum.”   <\/span><\/span><\/p>\n

<\/span><\/span> <\/p>\n

<\/span><\/span>But in a well-written and sound dissent, Justice Alito, joined by Chief Justice Roberts, and Justices Scalia and Thomas rejected the Court’s analysis calling the decision “<\/span>a serious setback for freedom of expression in this country.”<\/font><\/span><\/p>\n

<\/span> <\/p>\n

<\/span>As Justice Alito wrote:  <\/span>“Our First Amendment reflects a ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ New York Times Co. v. Sullivan<\/i>, 376 U. S. 254, 270 (1964). Even if the United States is the only Nation that shares this commitment to the same extent, I would not change our law to conform to the international norm. I fear that the Court’s decision marks a turn in that direction. Even those who find CLS’s views objectionable should be concerned about the way the group has been treated – by Hastings, the Court of Appeals, and now this Court. I can only hope that this decision will turn out to be an aberration.”<\/font><\/span><\/p>\n

<\/span> <\/p>\n

<\/span>Justice Alito disagreed with the Court’s characterization of the school’s policy as a neutral “accept-all-comers” policy, noting the existence of numerous recognized organizations at the university that could be harmed by such a policy, including political, pro-life, pro-choice, religious, ethnic identity, feminist, and animal rights groups.<\/font><\/span><\/p>\n

<\/span> <\/p>\n

<\/span>The impact of the high court’s flawed analysis raises further concern. Justice Alito compared the Hastings policy to a hypothetical state law, stating, “The State of California surely could not demand that all Christian groups admit members who believe that Jesus was merely human. Jewish groups could not be required to admit anti-Semites and Holocaust deniers. Muslim groups could not be forced to admit persons who are viewed as slandering Islam.” <\/font><\/span><\/p>\n

<\/span> <\/p>\n

<\/span>It is our hope, like Justice Alito, that this decision will be an aberration and not a shift in First Amendment jurisprudence.<\/font><\/span><\/p>\n

<\/font><\/span> <\/p>\n

To subscribe to “Lynn v. Sekulow” click <\/font>here<\/font><\/a>.<\/span><\/span><\/font><\/font><\/span><\/span><\/span><\/font><\/font><\/span><\/font><\/span><\/font><\/span><\/span><\/span><\/span><\/font><\/span><\/font><\/span><\/font><\/span><\/font><\/span><\/font><\/span><\/font><\/span><\/font><\/span><\/font><\/span><\/font><\/span><\/p>\n

 <\/font><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Barry,   This decision is both disappointing and troubling.  By a vote of 5-4, the Supreme Court dealt a damaging blow to First Amendment law for religious organizations in the case of  Christian Legal Society v. Martinez.    The Supreme Court was presented with the following question: “May a public law school condition its official…<\/p>\n","protected":false},"author":163,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[139,36,4,69],"tags":[],"class_list":["post-295","post","type-post","status-publish","format-standard","hentry","category-first-amendment","category-free-speech","category-religious-freedom","category-supreme-court"],"yoast_head":"\nThe Supreme Court Missed the Mark - Lynn v. 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FEC, Sekulow ensured that the constitutional rights of young people remain protected with a unanimous decision by the high court guaranteeing that minors can participate in political campaigns. A nationally recognized and respected defender of religious freedom, Sekulow has assembled one of the most prestigious law firms in the nation.  Founded in 1990, the American Center for Law and Justice focuses in constitutional law.  The ACLJ, under Sekulow's direction, is involved in public interest and public policy issues working to protect religious and constitutional liberties. In 2007, the Chicago Tribune concluded that the ACLJ has \"led the way\" in Christian legal advocacy.  In 2005, TIME Magazine named Sekulow one of the \"25 Most Influential Evangelicals\" in America and called the ACLJ \"a powerful counterweight\" to the ACLU.  Business Week said the ACLJ is \"the leading advocacy group for religious freedom.\"  Sekulow's work on the issue of judicial nominees - including possible vacancies at the Supreme Court - has received extensive news coverage including a front page story in The Wall Street Journal.  In addition, The National Law Journal has twice named Sekulow one of the \"100 Most Influential Lawyers\" in the United States (1994, 1997).  He is also among a distinguished group of attorneys known as \"The Public Sector 45\" named by The American Lawyer (January\/February 1997).  The magazine said the designation represents \"45 young lawyers outside the private sector whose vision and commitment are changing lives.\" Sekulow brings insight and education to listeners daily with his national call-in radio program, Jay Sekulow Live!, which is broadcast throughout the country on nearly 850 radio stations.  Sekulow also hosts a weekly television program, ACLJ This Week, which tackles the tough issues of the day and is broadcast on a number of networks nationwide including the Trinity Broadcasting Network and FamilyNet.  Sekulow is also a popular guest on nationally televised news programs on ABC, CBS, NBC, CNN, FOX News, MSNBC, CNBC, and PBS.  He frequently contributes articles and commentary to national publications and is often quoted in the nation's leading newspapers including USA Today, New York Times, Los Angeles Times, Washington Post, and Washington Times. A graduate of Mercer University, Sekulow graduated cum laude receiving both a bachelor's degree and doctor of jurisprudence from Mercer University where he served on the Mercer Law Review as an editorial staff member.  Following graduation, Sekulow served as a tax trial attorney in the Office of Chief Counsel for the Internal Revenue Service.  In that capacity, Sekulow prepared and brought to trial tax cases on behalf of the United States Department of Treasury in United States Tax Court. He also received a Ph.D. from Regent University, with a dissertation on American Legal History, and is the author of numerous publications and law articles. 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