Groucho Marx famously quipped to the Friar’s Club of Hollywood that he didn’t “want to belong to any club that will accept people like me as a member.” On Monday the Supreme Court heard oral arguments in a case where Groucho-like humility is nowhere in evidence.
In CLS v. Martinez, what is at issue is the right of the Christian Legal Society (CLS) to establish and receive routine school recognition for a chapter that retains and applies a statement of faith to its officers and voting members. On the other side of the courtroom aisle is the University of California Hastings College of the Law, which insists that its “nondiscrimination” policies with respect to religion and sexual orientation force CLS to grant voting-member status to any law student, regardless of whether that student holds Christian views or beliefs or engages in conduct that violates core Christian tenets.
The case is a powerful illustration of the way overzealous government can use what it regards as individual rights to trump and even destroy associational freedoms that characterize and bolster civil society.
The case also contains more than a whiff of religious prejudice. Hastings College of the Law recognizes other groups that impose membership requirements, including one that requires its full members to be of a particular racial or ethnic descent. As the case developed and CLS pointed out that the law school permitted nonreligious groups like the Federalist Society and Hastings Democrats to organize around nonreligious ideas, the college asserted that its true policy was that no student group could exclude any member or officer for any reason.
Imagine the Hastings Democrats replete with Republicans. The American Constitution Society dominated by monarchists. The Clara Foltz feminists run by misogynist males.
The conflict also offers lessons about the implementation of some sexual orientation nondiscrimination policies. The Hastings College of the Law has such a policy and the school objects to CLS because its membership requirements allegedly violate this policy as well. But CLS has made clear (PDF) that its orthodox interpretation of Christian teaching applies not to sexual orientation but to conduct, and not even to conduct but to conduct about which the individual is “unrepentant.” In other words, CLS admits voting members who may identify themselves as having a gay or lesbian sexual orientation and only excludes those who unrepentantly engage in homosexual sex and those who advocate for what the Christian tradition regards as sin.
An amicus brief filed in the case by professional gay-rights groups Lambda Legal and Gay and Lesbian Advocates and Defenders insists not just that this distinction must not be respected but that it cannot even be drawn. “By excluding those who engage in same-sex sexual conduct unrepentantly, it rejects gay people based on their sexual orientation,” the brief argues. But this argument simply does not withstand scrutiny. Consistent with its statement of faith, CLS will admit or deny people with a homosexual orientation on the same basis as it admits or denies people with a heterosexual orientation – on the basis of whether or not that person conforms his or her beliefs and personal conduct to the Biblical teachings expressed in CLS’s statement of faith.
A brief filed by the Boy Scouts of America (PDF), who prevailed in the Boy Scouts of America v. Dale (2000) case involving “expressive association,” makes the point succinctly: “The whole purpose of an expressive association is to associate with like-minded individuals.” Former Supreme Court Justice Sandra Day O’Connor recognized a similar constitutional principle when she wrote in Roberts v. U.S. Jaycees (1984) that “the association’s right to define its membership derives from the recognition that the formation of an expressive association is the creation of a voice, and the selection of members is the definition of that voice.”
The right of individuals, no matter what their viewpoint, to associate with like-minded individuals is something people on all sides of the issues – and desiring the freedom to form and join organizations that carry those ideas forward – should prize at the highest level. Especially at a public law school dedicated to the processes of debate and argument that nourish the pursuit of truth.
