In this final installment on this pending case I discuss whether or not a religious organization like CLS has a constitutional right to discriminate that is superior to the rights that other advocacy groups might have.
In five previous posts I have introduced the pending Supreme Court case of Christian Legal Society v. Martinez, laid out the breadth of constitutional issues that are implicated, and discussed CLS's First Amendent claims under the doctrines of equal access to a public forum, expressive association, and the free exercise of religion. In this sixth post I suggest that CLS may try to argue that, as a religious organization, the discrimination that it practices against gays, lesbians, and people of other faiths is on a higher plane and should receive more constitutional protection than discrimination by other, non-religious organizations.
The problem that CLS faces is that Hastings Law School has a legitimate and compelling reason not to recognize student organizations that discriminate on the basis of race, religion, gender, national origin, disability, and sexual orientation. The law school is attempting to instill in its students principles of inclusiveness and tolerance – and the law school has that right under the First Amendment. For example, no court would ever require the law school to confer official recognition a group that wished to call itself the "Hastings Law School Chapter of the KKK," for example, nor would the law school be required to give such a group access to student activity fee funding for a cross-burning.
The obvious strategy would be for CLS to persuade the Court that the kind of discrimination that is practiced by religious organizations can be distinguished from the kind of discrimination that hate groups like the KKK or the Nazi Party engage in. And at first blush that would seem easy to do. We certainly do not regard our churches or religious societies in the same moral light as hate groups.
In support of this distinction the CLS can point to the fact that the law routinely exempts religious organizations from the operation of the civil rights laws. If this were not the case, it would be unlawful for religious institutions to engage in gender discrimination, and churches, synagogues, and mosques could be compelled to employ women as clergy. This exemption exists for very good reason – the civil rights laws are in some instances in conflict with religious doctrine, and to enforce these laws against religious institutions would infringe upon those institutions' right to the free exercise of religion. Moreover, in the process of enforcing laws against employment discrimination the government would almost certainly become "excessively entangled" in the affairs of the religious body, thus violating the principle of separation of church and state that the Establishment Clause stands for.
On closer inspection, however, there are difficulties with this argument. While it is true that religious institutions enjoy immunity from civil rights laws that prohibit discrimination, so, too, do social, fraternal, and advocacy groups, insofar as those laws would interfere with the organization's rights to expressive association. The law may not require the Lutheran church to employ a Methodist pastor any more than it may require the Democratic Party to allow Republicans to vote in its primary elections (California Democratic Party v. Jones (2000)), or require the Boy Scouts to employ a gay man as a Scoutmaster (Boy Scouts of America v. Dale (2000)). Even the KKK has the right, under teh First Amendment, to exclude people of color from becoming members. Religious institutions exercising the right to freedom of religion in their discriminatory practices are treated no differently than secular organizations asserting their right to freedom of speech.
Furthermore, there are organizations that function both as religions and as hate groups. Christian Identity, for example, is a church instituted upon principles of racism and anti-semitism that according to the Anti-Defamation League has penetrated many right-wing extremist movements in America. Terrorist organizations such as al-Qaeda obviously draw inspiration from religious fanaticism. And, until 1978, the Mormon church discriminated on the basis of race. In my opinion there is no principled basis for distinguishing religiously-based acts of discrimination from those that arise from secular motives.
If CLS raises this line of argument, and if the Court chooses to discuss it, it will be fascinating to witness.
Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.
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This issue reminds me of a portion of the paper that I wrote for Sexual Orientation and the Law. I have reproduced the relevant part below, sans footnotes. For the full article, please see: http://strictscrutiny.akronlawreview.com.
RELIGIOUSLY-BASED EXPRESSIONS OF INTOLERANCE SHOULD NOT RECEIVE IMMUNITY FROM NON-DISCRIMINATION LAWS
In Peterson v. Hewlett-Packard Company, Hewlett-Packard employee Mr. Peterson responded to his company’s diversity campaign by posting Biblical scriptures condemning homosexuality on an overhead bin in his work cubicle, large enough for any passerby to read. When Mr. Peterson met with Hewlett-Packard managers to discuss the scriptures, he claimed that they were “intended to be hurtful.” Mr. Peterson refused to remove the scriptures and he was subsequently terminated for insubordination. He sued for religious discrimination and the court held that Mr. Peterson failed to raise an inference of disparate treatment and that accommodating his beliefs would inflict undue hardship upon Hewlett-Packard.
Professor Dent argues that Mr. Peterson’s termination was wrongful, that “[t]he display was about as discrete as a posting in the workplace could have been.” Professor Dent disputes that he is guilty of “individual immunity from nondiscrimination laws for religiously-based expressions of intolerance” because there are only a few grounds of workplace discrimination that are forbidden and that sexual orientation should be added to the permissible discrimination list because homosexuals are not a disadvantaged group and homosexuality is not immutable. He argues that “[o]ne side [Hewlett-Packard in its diversity campaign] may proclaim its approval of homosexuality as overtly as it wishes, and the other side must shut up.” Professor Dent’s reasoning is flawed. Mr. Peterson has every right to express his religious views, but in this case he was doing so to intentionally harass his co-workers.
Consider an analogy. What if Mr. Peterson’s religious beliefs compelled him to display signs protesting Christianity; that all followers of Jesus Christ shall be “put to death” and “their blood shall be put upon them”? I submit that Professor Dent would consider this speech to be severe or pervasive enough to be considered discriminatory. Of course it would be, because while our society encourages religious expression, it draws the line when that expression becomes hate speech.
In his short essay, Professor Dent points out at least eight times that most Americans agree with his own religious belief that homosexual relationships are not and should not be treated equally to heterosexual relationships. The Ohio House of Representatives disagrees. On September 15, 2009, the Ohio House passed House Bill 176 by a vote of 56-39. The legislation proposes to add sexual orientation and gender identity to the list of classifications for which it is illegal to discriminate for employment, housing, and public-accommodation purposes. The Supreme Court of Connecticut disagrees. Homosexuals are indeed a disadvantaged group subject to heightened review as a quasi-suspect class. Biology disagrees. Sexual orientation is as immutable as race or gender.
In the same way that businesses do not have a constitutional right to refuse to hire or serve someone because of their religion, in the coming months it is entirely possible that they will not have a constitutional right to refuse to hire someone based on their sexual orientation. And rightfully so. I agree with Professor Dent that “[e]very human being deserves to be treated with civility. Abuse and harassment violate this right. However, disagreement, even when heated, about matters on which people may legitimately disagree does not violate anyone’s rights.” What I do not agree with, is that hate speech, disguised as traditional religious views, can go unpunished simply because some number of people have historically viewed it as holy. We need to even the playing field. If state laws prohibit discrimination on the basis of religion (or race, gender, age, etc.), that same speech should be prohibited for attacking sexual orientation.
Thank you for the informative posts, Professor. The Court's decision in this case will be interesting, and potentially far-reaching. It will be intersting, for example, to see if the Court views this case through the same prism that your posts reveal. You repeatedly state that CLS "discriminates". Perhaps so. But does not the Law School Administration discriminate against traditional Christians, by requiring the organization that they have formed to jettison some of its fundamental beliefs?
Liberals love to extol "diversity". But it is a stunted and flat diversity. Diversity of pigmentation levels and sexual experimentation are celebrated. But beliefs that might challenge the reigning liberal orthodoxy simply cannot be tolerated. Thus, in the name of "diversity" are unpopular ideas and thoughts supressed and regimented groupthink enforced.
Allison is even more explicit that ideas that offend the progressive worldview of the
Brights do not deserve to be expressed:
"What I do not agree with, is that hate speech, disguised as traditional religious views, can go unpunished simply because some number of people have historically viewed it as holy. We need to even the playing field. If state laws prohibit discrimination on the basis of religion (or race, gender, age, etc.), that same speech should be prohibited for attacking sexual orientation."
If we were to "level the playing field", as Allison advocates, then the Hastigs CLS should be allowed to set its own standards for membership without the interference from the State. If the Constitutional right to free speech is to have any meaning, it means that expressions that some label "hate speech" cannot be banned by the State. If we are to promote true diversity, then Hastings should adopt a laissez-faire attitude toward student organizations, rather than require all organizations to adopt the Univeristy's explicitly discriminatory "non-discrimination" policy.
I am not all that familiar with this specific group – Christian Legal Society.
One of the tenets of every religion is that other religions are wrong. Our founding fathers knew this when they ratified the first amendment. It only makes sense that some leeway should be given. At any rate, it should probably end up as an 'all or nothing.'
Additionally, what benefit is there to the school or society in general to have people other than Christians running a Christian group? What is gained if we fill the soccer team with basketball players?
Quidpro,
The law school clearly may not banish organizations on account of their beliefs. The question is, may the law school refuse to recognize organizations on account of their conduct? I think you would agree that hate-groups do not have to be funded or formally recognized as student organizations. Is there a principled way to distinguish religious groups that choose to discriminate in their membership policies. Remember, too, that CLS operated at Hastings for many years without an exclusionary membership policy. It does not appear necessary for CLS to exclude gays and lesbians. It has the right to choose not admit them to membership. The question is, does it have the right to both exclude students on the basis of sexual orientation and also demand formal recognition from the law school?
Dave,
You raise a very important practical problem, and it is one that is pertinent to every student organization – the black law students' association, the hispanic student organization, women's groups – and that is, if membership in all of these groups is open to all students, what is to prevent a "hostile takeover" of the organization by students who are opposed to the purposes of the group? In my opinion, the law school could and should pursue disciplinary action against any student or group of students who deliberately attempt to destroy a student organization. If a group of college democrats tried to ruin the college republican club by joining, becoming officers, and then inviting only democratic speakers, the law school administration or disciplinary committee would be on solid ground in taking action against those students. But until that happens, the law school wants all student organizations to be open to all students – neither CLS nor any other club can claim that just because a gay or lesbian student joins it will necessarily prevent the group from carrying out its function, any more than the black law students association could complain that its purpose was ruined just because a white student joins. You are right – it makes no sense to fill a soccer team with basketball players. But the university would be wholly within its rights to require that intramural soccer clubs must be open to all students, regardless of race, religion, gender, or sexual orientation.