The difficulty of this case stems from the number of constitutional doctrines and principles which are intertwined, a tangled skein of general rules and fundamental values.
Yesterday's post introduces the case. The Christian Legal Society is a student organization at Hastings Law School that in 2004 adopted rules requiring that in order to become members of the organization students must take an oath expressing their adherence to specific religious beliefs. As construed by the CLS, the oath and the duty to conform to it would exclude sexually active gay and lesbian students. The law school refuses to recognize student organizations that discriminate on the basis of religion or sexual orientation, and accordingly the law school withdrew recognition of CLS, thus depriving the organization of the right to use the name and logo of the institution, access to certain facilities at the law school, access to e-mail lists of students, and funding.
This case implicates a virtual blizzard of constitutional principles. For CLS, three primary constitutional rights are involved:
1. Freedom of Speech and the Right of Expressive Association
The Christian Legal Society has the right to express its views, not only through advocacy, but by means of its membership policies. This right – called the right of "expressive association" – makes it unconstitutional for the government to enforce civil rights laws against such organizations, at least in settings where the organizations is acting in a wholly private capacity and not performing some governmental function, such as conducting a primary election for elective office.
The principal case protecting the rights of CLS in this case is Boy Scouts of America v. Dale, in which the State of New Jersey had charged the Boy Scouts with violating the state's nondiscrimination law because it had fired a scoutmaster because he was gay. The Supreme Court ruled that enforcement of the law violated the Boy Scouts' First Amendment right to stand in opposition to homosexuality – and that this right would be infringed if the BSA was required to employ gays or lesbians as scoutmasters.
2. The Free Exercise of Religion
The CLS's right to discriminate on the basis of sexual orientation is also based upon its rights under the Free Exercise Clause of the First Amendment. Religious bodies may not be forced to admit members or hire clergy who are not of the same faith, or who are not obedient to the organization's code of conduct.
3. Equal Access
When government institutions such as schools and colleges open up their facilities to the community, they must provide access in a "viewpoint neutral" manner – that is, the government must not attempt to elevate one point of view over another. The Supreme Court has specifically held that religious groups are entitled to the same access to public facilities as secular organizations.
However, this case is complicated by the fact that CLS is not simply seeking access to Hastings Law School – it is seeking official recognition and funding. A university – even a public university – also has the rights and responsibilities under the Constitution.
1. Government speech
Government institutions, no less than private parties, enjoy freedom of speech. By prohibiting recognized student organizations from discriminating Hastings Law School is attempting to inculcate tolerance and civic responsibility among its students. The law school's First Amendment rights are enhanced by the fact that its recognition of a student organization confers upon the organization the right to use the name and logo of the law school, giving the impression that the organization is speaking for the law school – and the law school does not wish to endorse discriminatory views.
2. Government subsidization of private speech
Not only may government institutions speak, they may also elect to subsidize the views of private parties with whom they agree. Just as the National Endowment for the Arts may decide to fund one form or art or music over another – or "decent" kinds of performances instead of "indecent" ones – universities may choose to subsidize some forms of expression and not others. Essentially, this line of cases (like the abortion funding cases) stands for the principle that while citizens may have a constitutional right to freedom of speech, they do not have a constitutional right to the assistance of the government in expressing themselves.
3. Establishment Clause
Under the First Amendment's that the government shall make no law "respecting an establishment of religion," the Supreme Court has ordered that the government must act in a neutral fashion towards religion. The government may neither advance religion or hinder it. The problem, of course, lies in defining what constitutes the "neutral" position.
4. The power to regulate the conduct of students
Public educational institutions have the authority to regulate student conduct to a far greater degree than they may regulate student expression. One of the difficult questions in this case is whether through its nondiscrimination requirement for recognized student organizations the law school is attempting to prohibit discriminatory conduct, or whether it is attempting to regulate the beliefs and expressions of students.
I will continue the analysis in tomorrow's post.
Visit Professor Huhn's website for information and links to sources – both timely and historical – on Constitutional Law.
