Earlier today the Supreme Court heard arguments in Christian Legal Society vs. Martinez, testing whether a school's nondiscrimination policy can result in barring a student religious group – which, by definition, is limited to people who share that faith – from receiving official campus recognition. The case involved a student organization at Hastings College of the Law, the Christian Legal Society (CLS), being denied official status because it bars from membership homosexuals and those who practice or support premarital sex. NPR has a nice review of the issues involved in this case here.
In Sunday's Washington Post, George Washington University law professor Jonathan Turley writes that "[a] campus offers a cradle of free speech where students can form organizations that foster the exchange of ideas and values. Supporting such groups should not be viewed as endorsing their beliefs but rather as encouraging associations." Encouraging associations is a public good, yes, and should be a priority of any school's student affairs office. But is it required of public universities, even in violation of other school policies?
For the internal workings of the student groups, enforcing a nondiscrimination policy could wreak havoc on the group's identity. Professor Turley wonders what would happen if schools enforced nondiscrimination policies on the internal workings of Orthodox Jewish or Wahabi Muslim groups. The NPR piece asks what would happen if an environmental student group were forced to admit into membership students who denied global warming.
This case seems to be less about the free exercise of religion, and more about how public universities govern and provide material support for student life activities. The Christians who formed the CLS continue to enjoy their Constitutional rights to free association and free exercise of religion, even though their group was denied official standing at Hastings. Members of the CLS continue to be free to associate and organize and worship. Nobody is prohibiting these students from practicing their faith. Rather, the question is whether a school must extend the benefits of official recognition – including subsidies, priority use of campus facilities, and access to the school's email network – to groups that violate the school's nondiscrimination policies.
I'm ambivalent about this issue. I don't think it is a bad idea at all for schools to support student groups, both those that are religious and non-religious, those that are open and those that have restrictions to membership. However, I tend to believe it is a bad idea for Christian groups to seek official support or subsidy. Religious groups are best when they are operated independent of governmental or other funding sources that don't share in its mission.
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Post Script:
From Turley's piece:
These conflicts are forcing courts to confront the reality that most religions are based on exclusivity principles and, to some extent, discrimination. Whether it is the chosen and the unchosen or the faithful and the infidel, religions define their members in part by the adherence to a set of moral strictures. In Matthew 4:4, Jesus says, in reference to the Old Testament, that "every word . . . comes from the mouth of God." That does not allow much wiggle room for many in tailoring their views to meet societal demands.
Professor Turley oddly interprets Matthew 4:4, supposing that Jesus' quote of Deuteronomy 8:3 – "one does not live by bread alone, but by every word that comes from the mouth of the Lord" – is a reference to the Old Testament as a whole, and thus an example of how religious groups couldn't be expected to "[tailor] their views to meet societal demands." Jesus' words in Matthew 4 are not about the immutability of the Old Testament – and neither is the original text from Deuteronomy – but rather about the call of the faithful to depend ultimately not on material goodies but on the promise, Word, and will of God. Turley's attempt to shoehorn this passage into some argument about the restricted membership and practices of religious groups is just odd.
UPDATE:
Howard Friedman of Religion Clause offers great links to briefs filed, opinion pieces, and background pieces about this case, here.
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