By David Waters
The Supreme Court heard arguments in a Christian student group’s discrimination case against a public university law school’s anti-discrimination rules, and the justices seemed sharply divided on the matter. No wonder. There’s no good way to split this baby.
The case: A public law school’s denied legal recognition to a Christian student group because the group discriminates — it bars non-Christians, gays and non-celibate students from serving as officers or voting members. Legal scholars like Jonathan Turley of George Washington University say the case, Christian Legal Society v. Martinez, “has the potential to resolve a long-standing conflict between two of the most cherished American traditions: equality and nondiscrimination on one hand and the free exercise of religion on the other.”
There’s a good reason those conflicts between cherished American traditions are long-standing. Can they ever be resolved?
The free exercise of religion includes the freedom to include or exclude others who believe differently. Southern Baptists, for example, have a right to exclude women or gays or Mormons from the ranks of their clergy. Shouldn’t a group of Christian students have the right to exclude non-Christians, gays and non-celibate students from serving as officers or voting members?
On the other hand, the Supreme Court has said the Constitution supports laws against discrimination based on a person’s personal status or beliefs — gender, race, ethnicity and religion. Shouldn’t a public university (the University of California’s Hastings College of Law) have a right to require its official student groups not to discriminate?
The student group says its members are being discriminated against solely because of their religious beliefs. But what if their religious beliefs required them to exclude women or racial minorities or anyone over age 30 from their group? Does the free exercise of religion cover every conceivable form of discrimination?
Justice Sonia Sotomayor seemed to focus on that point: “Are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?” she asked.
The law school argues that the government (a la tax-supported public universities) has a right and a duty to forbid discrimination on the basis of race, color, religion, national origin, ancestry, disability, age, sex, or sexual orientation. But don’t most groups of religious believers — by definition — require some form of discrimination by its members against non-believers?
Justice Antonin Scalia seemed to focus on that point: “It is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership,” Justice Antonin Scalia said. “To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That’s crazy.”
Should a tax-supported school be able to exclude a student group that discriminates? Should a religious student group be able to discriminate and exclude?
Personally, I think the First Amendment is first for a reason. I’d rule that free speech, freedom of religion and freedom of assembly trumps all other rights and freedoms. But one reason I went into journalism instead of law is so that I don’t have to make these decisions. I only have to write about them.