Yesterday in a 2-1 decision, the U.S. 7th Circuit Court of Appeals decided that the Christian Legal Society at Southern Illinois University School of Law should be granted a preliminary injunction requiring the Law School to recognize it as an official student organization, despite the Law School 's claim that CLS violated the school's non-discrimination policy. Christian Legal Society v. Walker, (7th Cir., July 10, 2006), is one of a series of cases that has been filed around the country challenging attempts by public law schools to deny recognition to CLS chapters that insist their members and officers abide by a statement of Christian faith that includes rejecting sexual activity outside of heterosexual marriage. The CLS requirement excludes from voting membership both (1) non-Christians and (2) active gays and lesbians. The challenge at SIU focused primarily on exclusion of gays and lesbians.
The majority opinion said that CLS had demonstrated a likelihood that it would succeed on the merits. First, it is unclear that CLS in fact violated the language of the University's non-discrimination policies. The EEO policy applies to the university itself, and the majority doubted that this encompassed student organizations. Second, the majority held that it is likely that CLS will succeed in showing that its right of expressive association has been unconstitutionally infringed. SIU's only interest appears to be in suppressing particular ideas expressed in CLS's statement of faith. Finally, the majority said it was likely that CLS could show that the University's policy has violated its free expression rights because the policy has been applied in a discriminatory manner. It appears that other student organizations that exclude members based on religious belief or gender have not been denied recognition.
Judge Wood's dissent argued that the trial court had not abused its discretion in denying CLS a preliminary injunction. He disagreed with the majority's conclusions about CLS's likelihood of success on the merits, emphasizing the lack of evidence on crucial issues at this stage of the proceedings. He concluded: "If CLS wanted to forbid membership to all African-Americans, or to mixed-race wedded couples, or to persons of Arabic heritage, surely SIU would be entitled at a minimum to say that [it]... would have to sustain itself without any state support-- even if it could root such a membership policy in a religious text..... [T]he indirect impact of ... recognition of a student group maintaining such a policy is that SIU ... may be seen as tolerating such discrimination. Given that universities have a compelling interest in obtaining diverse student bodies, requiring a university to include exclusionary groups might undermine their ability to attain such diversity."
An AP story in the Washington Post discusses the decision. Jeremy Richey's Blawg has links to all the briefs that were filed in the case and to recordings of oral arguments. The 7th Circuit had previously granted CLS an injunction to reinstate it as a recognized group while the appeal was being argued. [Thanks to Ted Olsen at Christianity Today, and to Rory Gray for leads.]
