Last week, I posted a report on a decision in the Christian Legal Society's case against Hastings College of Law. Similar suits filed around the country are attempting to free CLS chapters from law school requirements that recognized student organizations not discriminate on the basis of religion or sexual orientation. Standards imposed by the American Bar Association for accreditation (Standard 210) may be seen as requiring schools (with some exceptions for religiously-affiliated schools) to have this kind of nondiscrimination provision.
Last week’s decision dealt with the easy issues. The law school’s anti-discrimination provisions survived the Lemon test and thus did not violate the Establishment Clause. They also survived equal protection and due process fair notice challenges. The hard issues remain. To what extent do First Amendment free exercise and freedom of association provisions protect the CLS from interference when it requires anyone seeking to become a member to subscribe to its Statement of Faith?
My analysis of the issues comes not just from the opinion in last week’s case, but also from examining the Complaints in this and other similar suits, many of which are available through the CLS website.
CLS interprets its Statement of Faith as prohibiting not just homosexual conduct, but heterosexual relationships outside of marriage as well. CLS allows anyone to attend CLS activities and meetings. Adherence to the Statement of Faith is required only for the additional step of becoming a full member. Also, CLS permits full membership for those who have engaged in non-marital sex, but have repented of the conduct, or those who have “inclinations” to do so, but do not.
At stake here are conflicting lines of U.S. Supreme Court authority. The 2000 decision in Boy Scouts of America v. Dale refused to permit New Jersey to apply its public accommodations law to the Boy Scouts, who refused membership to gays. New Jersey’s interests in prohibiting discrimination against gays did not justify the severe intrusion on the Boy Scouts' freedom of expressive association.
On the other hand, in the 2003 case of Grutter v. Bollinger, the Supreme Court deferred to the University of Michigan Law School’s determination that diversity is essential to its educational mission. It found that student body diversity was a compelling state interest that even permitted the use of race in making admission decisions. Of course Grutter also held that any use of race had to be narrowly tailored to meet the goal of diversity.
How do these apply to the CLS cases? Certainly CLS is engaged in expressive association. But compelling interests can outweigh the right of association. The Supreme Court held that in the 1983 case of Bob Jones University v. United States. The compelling national interest in eradicating racial discrimination permitted the Internal Revenue Service to deny Section 501(c)(3) (non-profit tax treatment) status to colleges that discriminated on racial grounds because of religious doctrine. Is student body diversity, an aspect of academic freedom, just as compelling as the interest in eradicating racial discrimination? If so, law schools would be able to do what broader state governmental units, like the state of New Jersey in Boy Scouts, cannot do.
