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April 20, 2010

Jason Poling: Free to believe, you but not me?

The Rev. Jason Poling is pastor of New Hope Community Church in Pikesville.

On Monday morning the Supreme Court heard oral arguments in Christian Legal Society v. Martinez, a case that has the potential to set tremendously important precedents for the exercise of First Amendment rights. Or for the protection of people from discriminatory treatment. It depends how you see it.

In a nutshell, the situation is this: A Christian student group at Hastings, a law school in the University of California system, was denied recognition because it requires that members sign a statement of faith and abstain from "unrepentant participation in or advocacy of a sexually immoral lifestyle." Without recognition, the group was treated like any other non-campus group: No preferential scheduling of meeting spaces, no access to campus-wide email, no access to student organization bulletin boards, no (modest) allocation for expenses.

So, they sued. (Remember, these are law students. Really, what better way to make use of an expensive education than a test case that would ultimately go to the Supreme Court?) The students claimed the school was infringing on their right to free association (and exercise of religion); the school claimed the students could only constitute as a student group if it followed the school's non-discrimination policy, which the organization's by-laws transgressed.

It's a difficult choice: Should a publicly funded institution provide support to an organization that operates against its principles? Should an organization be required to compromise its principles in order to function as a recognized student group? Do we really want to live in a world where the Folk Music Society can’t kick out its treasurer for being photographed in the front row at a Black-Eyed Peas concert?

Let me put it this way: Would it be a valuable thing to have an academic environment where students and faculty are free to associate around shared beliefs, and where the campus operates according to the principle that diversity of opinions and practices is a good thing? Is there a sense in which what taxpayers “buy” in our institutions of public education is a learning environment which, like a guitar string, is useless without some tension?

Students who want to advocate for, say, open marriage, would be free at Hastings to start an organization celebrating, advocating and engaging in the practice. Why can’t a group of students holding a different set of values affiliate accordingly? In truth, the latter group would face far greater discrimination on virtually any law school campus today. Shouldn’t a free society bend over backwards to ensure that less popular views have an opportunity to be aired?


It is an interesting case.

I do wonder why a non-Christian would seek membership in the CLS, although I have much less difficulty understanding interest from a Gay student who identifies as Christian. I also wonder if the CLS polices its members for sexual morality, or is it entirely based on public testimony? Law students certainly need practice in duplicity, if they are to succeed in their chosen profession.

Of course, there's always the "separate but equal" option: a Gay Heathen Legal Society. They can sit in the balcony.

Justice Sotamayor asked the question that best frames the dispute: “So is this an exception that you want to talk about as it is applied to religious groups, or are you suggesting that if a group wanted to exclude all black people, all women, all handicapped persons, whatever other form of discrimination a group wants to practice, that a school has to accept that group and recognize it, give it funds and otherwise lend it space?”

It seems to me that is exactly what the so-called “christian” would like to do. The bible thumpers, on the other hand, claim that black, or female, or handicapped represent a “status,” whereas gay folk represent a “belief.” Mr. McConnell, attorney for the thumpers, says: “The stipulation is that they may not exclude based on status or beliefs. We have only challenged the beliefs, not status.” This guy reminds me of the insurance adjuster in New Orleans who tells the family that although they had fire AND flood insurance they were not covered. They should have bought fire OR flood insurance.

Then he goes on to explain to the justices that it would be fine and dandy with him to have a racist group on campus as long as it only excluded African Americans based on their beliefs, rather than their blackness.

Ever since Boy Scouts of America v. Dale, it has been the law of the land that folks afraid of their own shadow (or, more likely, afraid of mine) have a legal right to behave like bigots. The issue here at the center of this argument, however, is that the bible thumpers receive public funds. The Court will have the pleasure of reading about 40 Amicus briefs, including one that represents the State of Maryland's opinion.

This promises to be very entertaining.

A "group" by the very nature of being a group is exclusionary--gay and lesbian groups, East Indian, Pakistani and other associations within universities, the Hillel for Jewish students--do these groups get public funds to operate? The Christian religious groups are chafing at the bit to be let loose on a portion of public funds available to universities. Christians have argued that some forms of discrimination are holier than others on campus--campus authorities naturally fear if a Christian group is allowed to drink at the trough many other religious groups will follow and mayhem will reign supreme.
Also there is the question of separation of church and state when public money is doled out. This student group is faith based. It will have a stronger argument in court if the school is giving money to a Jewish or a Muslim or another religious group on campus. If the latter is not the case there is no discrimination against the Christians based on belief--separation of church and state precludes the doling out of public funds to this group--case closed isn't it?
Ravensfan Anon

Maybe it's me but I don't see this as that tough a decision. The University isn't preventing them from forming, having meetings or anything else. What they are saying is they won't recognize it since the group violates a school policy. This only deprives the group of benefits of recognition which includes preferred treatment for scheduling of meeting space, access to campus wide email, access to student bulletin boards and some modest funding. I don't see any of those as infringing on their right to free association or exercise of religion.

Actually a ruling in favor of the Christian student group could work against many faiths by forcing them to bend over backwards to ensure that views contrary to their beliefs be aired. One last though although I don’t doubt statement of faith was meant for homosexuality and LGBT activism as it is mentioned, it would also apply to any sexually immoral lifestyle which would include heterosexual sex outside of marriage as well.


I'm not sure I follow your second point (I agree with your first).

If the Court finds for the CLS, then the University must fund a discriminatory organization. What this would establish would be a precedent whereby any and all disciminatory groups could be funded. The SLC's right to discriminate would be preserved. How would that force such groups " bend over backwards to ensure that views contrary to their beliefs be aired"?

As to your final point, again, I agree. As I suggeted in my first posting in response to this article, I wonder how the SLC proposes policing this standard. Inquiring into the private sexual lives of its memebership might end up being something of a distraction from its chartered mission....

(Of course, as will hardly be a surprise, I dispute the notion that open homosexuality consitutes "sexual immorality," although closeted homosexuality -- ironically, because it will slip under the radar beam -- comes close. But, then again, the SLC didn't ask my opinion.) response was to "Ravensfan," not "Anonymous"

Bankstreet - Such a ruling could be used as the basis for force Christian Colleges & Universities to recognize organizations that conflict with their religious beliefs. to use it on private schools as well. I'm not saying it would. Simply that it leaves that door open. One I'm sure will come up some day anyway regardless of how this case gets resolved.

I think we can safely agree that "sexual immorality," is something which will be viewed differently by various people according to their faith and or secular views. I think its important that we respect the rights of others to disagree with our own view and treat each other with respect.

I believe we agree on the most important issue. The CLS's argument lacks merit. No one is infringing on their right to free association and exercise of religion.

Ravensfan, your point that a ruling in favor of the Christian student group could work against religious groups is right on target.

The ACLU makes the same point in their amicus brief:

" ...a victory for CLS could well imperil the government’s ability to enforce non-discrimination mandates not just with respect to sexual orientation,
but in any clash between religious beliefs and civil rights."

About the only thing above about which I would quibble is the statement or implication that a group can always be assumed to be exclusionary based on its name. I say that as a male member of the League of Women Voters and former member of the National Organization for Women. Despite the name, either discriminates against males who seek to join them. Indeed, I wouldn't be a member of any group with any kind of discriminatory membership policy.
My only other comment is to express the opinion that no public institution should provide funds to ANY religious group (whether they discriminate or not) because to do so would violate the constitutional principle of the separation of church and state.

--I think you mean--"despite the name either does NOT discriminate..." about NOW and the National League of Women Voters--when I said that a group by its very nature is exclusionary, I agree I should have said there are probably exceptions to this assumption. But I agree with you Anonymous that separation of church and state is at the heart of this case--this religious group that excludes based on faith and predetermined sexual mores should not be receiving public funds--and it is also true no religious group whether it discriminates or not should receive public funds based on the constitutional principle of church and state separation.
Ravensfan Anon

Anonymous, “opinion that no public institution should provide funds to ANY religious group (whether they discriminate or not) because to do so would violate the constitutional principle of the separation of church and state,” is one that has been supported by the Supreme Court in only about half of the cases brought before the Court. The idea that public funds can't be used for religious organizations is overstated. Associated Catholic Charities of Maryland, for instance, received 92 million dollars from government sources in 2009.

Several Supreme court cases have decided in favor of the use of public funds for religious organizations:

Bradfield v. Roberts (1899)
Board of Education v. Allen (1968)
Tilton v. Richardson (1971)
Witters v.Washington Department of Services for the Blind (1986)
Bowen v. Kendrick (1988)
Zobrest v. Catalina Foothills School District (1993)
Agostini v. Felton (1997)
Mitchell v. Helms (2000)
Zelman v. Simmons-Harris (2002)

The issues in these cases were as diverse as reimbursing parents for the cost of busing to religious schools to direct payment to schools for sex education. Unlike the current case where the primary focus is on issues of free speech, these cases were direct tests of the scope and limits of the Establishment Clause.

The question presented by the petitioners in the current case to the Supreme Court is only this:

“Whether the Constitution permits a public university law school to exclude a religious student organization from a forum for speech solely because the group requires its officers and voting members to share its core religious commitments.”

It is up to the opposition to frame the argument within the framework of the Establishment Clause. But the court will consider this against the background of the case that brought it before the court, which was the holding by the 9th Circuit Court that “all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.”

At one point in Monday's oral arguments Justice Kennedy laid it out plain and clear, he said:
“Your argument at its most fundamental level is that religious organizations are different because religion is all about belief. But at that point don't we also have a tradition of separation? That's the whole reason why church and state for many purposes are kept separate, so that States are not implicated with religious beliefs. And it -- it -- it seems to me we have to consider that when we are considering your argument.”

I stand on the side of the respondent in this case. But to suggest that on the basis of the establishment clause it is a slam dunk would be preposterous. The Court would never have agreed to hear it were it that simple.

I recommend interested parties read the oral arguments:

Associated Catholic Charities of Maryland received 92 million dollars but if the Associated Catholic Charities spent that public money only on Catholics and discriminated in its charitable work, or if it used as a condition to its charitable giving that benefactors should convert to Catholicism or if it has prerequisites like those who receive money from the Catholic Charities should live by Catholic principles, that would be a violation of the Establishment Clause--I am sure in everyone of the cases quoted the Supreme Court examined carefully whether the groups receiving public moneys were in flagrant violation of the Establishment Clause by acting solely to advance the group's religious agenda at the expense of the general public. While it may be true that the Supreme Court has not always declared carte blanch that public moneys should not be given to religious organizations regardless of whether they discriminate or not, the courts tread a fine line by allowing some religious organizations to receive these moneys and others not. If there is no strict supervision of how these moneys are spent, religious organizations can always use them to spread and establish their own religion. Therefore it is a better policy to withhold public moneys from all religious organizations, in deference to the Establishment Clause. There is no doubt that the Christian group in the law school has a charter all its own and it wants new entrants to abide by this charter. The charter itself is constrictive requiring a declaration of faith and allegiance to a sexual standard set up by the group. The group's intentions are clear--and cannot be compared to those of charitable organizations like the Catholic Charities. This group's quest for public moneys and other privileges afforded to less exclusionary campus groups will probably be shot down in court.
Ravensfan Anon

In my last post--correction--where I said benefactors--I meant "beneficiaries should convert to Catholicism".
Ravensfan Anon

Ah, its always good to see bigotry, but only when it regards bigotry against Christianity. Martin Luther King, Jr. said that blacks fighting the system did not bring the tension into society. The tension was already there. It does not establish a state religiion to allow for the freedom of religion. Only leftist nazl-socialists want to attack Christians. But be careful, when you push apart the pillars that supported the roof, the roof falls in on you, too.

Bigot! Appropriately named! Another doomsday Christian with "Beware!" prophecies.
Ravensfan Anon

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About Matthew Hay Brown
Matthew Hay Brown writes and blogs about faith and values in public and private life for The Baltimore Sun. A former Washington correspondent for the newspaper, he has long written about the intersection of religion and politics. He has reported from Africa, Asia, Europe, Latin America and the Middle East, traveling most recently to Syria and Jordan to write about the Iraqi refugee crisis.

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