No. If the first amendment says that the government can’t discriminate against groups because of their views, then the government can’t discriminate against groups because of their views.
The harmed party in this lawsuit isn’t gay people, it’s the group that’s being denied state funds because it discriminates against gay people.
But if the government allowed state funds to go to the group that discriminates against gay people the government would be directly funding discrimination against gay people, which it can’t do either. Right?
Given a contradiction like this clearly the only option is to dissolve the government.
Not the most expert smmary, but it’s not dead wrong.
Here, your analytical powers have failed you. There are a number of important differences between a public college and a student organization at that college, and a privately-owned automobile dealership and a customer thereof.
It can, because of the supremacy clause. If the only way the state can avoid discriminating against gay people (because the California constitution forbids discriminating against gay people) is by discriminating against people because of their political and religious views (because the US Constitution forbids discriminating against people because of their political and religious views), then that part of the California Constitution violates the US Constitution and has to be ignored.
I’m not convinced that’s the case here, and I don’t think that the law school is violating the US Constitution, but the US Constitution trumps state ones.
I agree that they are harmed, because they don’t get funds, but I don’t agree that they are being discriminated against on a religious basis. The school’s policy (and the state of CA) explicitly bar discrimination based on religion. Rather, here, the government has a religiously-neutral rule for the CLS to follow, and the CLS wants the rule changed to create an exception, which would have the effect of making the rule non-neutral when it came to either sexual orientation or religion. The reason I think it would make the rule non-neutral with respect to religion is that even if the CLS were allowed to discriminate on the basis of sexual orientation, non-religious organizations certainly wouldn’t be allowed to do so. So, in effect, changing the rule for CLS creates a situation where religious orgs get to do something non-religious orgs don’t get to do.
For me, this situation is the reverse of government compelling a person to do something against their religious beliefs. If that were the case, I’d need a really good reason as to why we should allow government to do that. But here, it’s not that the government is compelling people to act against their religious beliefs, but rather that the CLS wants government to participate in the CLS’s religious beliefs.
This, to me, is also a different situation then something like the peyote exemption for native american religions. There, the government is refraining from action against a specific religious group, while here, the government is being asked to participate in the actions of a specific group. Although, I don’t particularly care for these piecemeal exemptions either.
The USSC, of course, may not see it my way (and given the makeup of this court, it wouldn’t surprise me if they didn’t see it my way).
Unfortunately, there is some precedent for the government being ok with religious groups that discriminate, at least as far as hiring policy. For example, any recognized church can choose to hire only from within its membership. And they can only define who gets to be members. And they can do this and still retain their tax-exempt status, because the relevant laws have specific exemptions for churches written into their anti-discrimination policies.
I have no idea whether such protections could be extended downward to to a small group of bible study students. The students seem to believe that it does. I also wonder whether the group has any kind affiliation with a larger religious institution.
Nice strawman…this is not CLS’ argument. CLS’ argument is they are being discriminated against on the basis of their belief, their viewpoint, and consequently, this is unconstitutional.
There are immediately at least two cases which will undoubtedly find their way into the majority opinion or the dissents’. One of them is Rosenberger v. Visitors and Rector of the University of Virginia, 515 U.S. 819, and *Davey v. Locke * 540 U.S. 712. This is by no means an exhaustive list of the relevant cases or legal issues, as the legal issue of freedom of association is certainly relevant, with two cases such as *Roberts v. U.S. Jaycees * and BSA v. Dale, particularly relevant to this issue.
This is not a parallel example to the case presently being discussed.
No, this case is not about discrimination against gays. Or discrimination against Christians.
Is there some constitutional entitlement to being funded by a college? If so, why aren’t they sending me my share? Obviously most of the people in this country are not collecting any money from Hastings College. So the CLS cannot realistically claim that not getting that money is a form of discrimination.
It would be like me claiming that the state is discriminating against me because it won’t pay me unemployment benefits because I have a job. There is no general entitlement to unemployment benefits just as there is no general entitlement to student organization funding. There is some money available for people that qualify under the criteria established by the people giving the money. But if you don’t fit the criteria, you don’t get the money.
How is this complicated?
Such as?
Those two precedents don’t apply here (in my opinion). In both of those cases the grounds for refusal were specifically made based on a religious belief. The Hastings College rule is not religious - it simply prohibits excluding members for any of a list of reasons (one of which is sexual orientation). If Hastings had said they would not fund the Christian Legal Society because it was Christian, then I’d agree it was violating those precedents. But it is not funding them because they excluded gay members - and “excluding gay members” is not a religion.
Kennedy, who delivered the Rosenberger decision, raised the issue of this rule being a possible smoke screen specifically applied against the CLS. But there is no evidence of this. The CLS received funding from the college in the past before it excluded gays, its funding was cut off at the time it began excluding gays, and no other student organization has been shown to have received different treatment. This is a case of a college enforcing a non-religious rule in an impartial manner.
And your two latter precedents don’t apply because there is no attempt being made to prohibit the CLS from choosing its membership as it wishes. Nobody is telling them they have to include gays. So they are free to associate or not associate as they wish.
Those two precedents are relevant, and will undoubtedly find their way into the majority or dissent. For those who support the law school,* Davey *unquestionably provides an analysis to find for the school.
Furthermore, your characterization of Rosenberger is not accurate. Rosenberger was decided on the principle of viewpoint discrimination.
Ultimately, who wins this case, based on the oral argument, will likely be predicated upon how the issue is framed. If we are discussing a forum created by the university, then the question will be whether the university has created an open forum or a limited forum. If it is a limited forum, the school likely wins. If it is an open forum, then we are within the confines of the *Rosenberger *decision. If it is an open forum, the school may still win on the basis of at least three or more arguments. 1. The school is not discriminating on the basis of speech but conduct (this may be a tough sell as the counterargument will be the conduct of the club is speech.) 2. The school’s conduct is not the type of animus against religion or the religious the Court looks for (Davey precedent). 3. Assuming viewpoint discrimination, the school has a compelling interest.
If it is a limited forum, the school likely wins.
Of course, the answer to these questions will be fact sensitive and judging from oral argument, the Court is confused as to what exactly is the facts of the case.
One important fact, which has been overlooked here, but raised by CLS, is the fact some groups officially recognized by the school are permitted to discriminate but religious groups, or at least some of them, are not. It has been contended, " Hastings’ written Policy on Nondiscrimination permits groups to exclude from leadership those individuals who reject its core beliefs. A number of groups exercised that apparent freedom in order to preserve their identities and messages. For example, the student chapter of the Association of Trial Lawyers
of America, for example, required all members to “adhere to the objectives of the Student Chapter as well as the mission of [national] ATLA.” Th e Hastings pro-life group stated that “[s]o long as individuals are committed to the goals set out
by the leadership, they are welcome to participate and vote in Silenced Right elections.” Th e bylaws of Outlaw reserve the right to remove any offi cer that “work[s] against the spirit of the organization’s goals and objectives.” (In its Ninth Circuit briefing, Hastings deemed these requirements “informational
only” and inconsequential.)" http://www.fed-soc.org/doclib/20100331_BaylorEngage11.1.pdf
Yes, but in Rosenberger and Locke, the viewpoints being prohibited were specifically religious ones. The University of Virginia had a guideline that prohibited publications which “primarily promotes or manifests a particular belief in or about a deity or an ultimate reality”. The state of Washington had a scholarship program that specifically excluded theology degrees. These are discriminating against religious beliefs. The Hastings College guideline is a general non-discrimination policy not a prohibition on religious views.
So the precedent is that government bodies (including public university systems) cannot create a prohibition against a religious belief. I don’t see how these precedents say a public university system cannot create a general non-discrimination prohibition.
I’m assuming this case, like so many others, will be decided by how Anthony Kennedy feels about it. Roberts, Alito, and Scalia have already expressed opinions that indicate they plan on ruling in favor of the CLS and I assume Thomas will join them, even though as usual he’s said nothing so far. As I said in the OP, Alito and Scalia seem to feel they are defending Christianity against atheist attacks, even though there’s no atheists involved in this case. Ginsberg and Sotomayer seem to be favoring Hastings. Stevens, Breyer, and Kennedy are on the fence.
Once they’ve peacefully voted themselves into power, they get to decide who is and is not disruptive.
That said, I think Scalia is wrong here. The school has a policy of not funding groups that discriminate based on religion. So be it.
Let them meet at a local church or something.
Can you clarify here? Are these groups currently permitted to discriminate on the basis of sexual orientation (or any other class where discrimination is prohibited by the school’s policy)?
As background, the Hastings CLS didn’t use to have any policy excluding gays. They were accepted by Hastings and received student organization money. Then the Hastings CLS joined the national CLS organization. As part of this, they had to formally state they would comply with the national CLS charter. And that charter prohibits gays from joining CLS. So technically the Hastings CLS was now excluding gays.
The reason I say technically is because as far as I know, no actual gay person has ever tried to join the Hastings CLS and been denied membership. This case is all about hypotheticals.
If I’m understanding their point NotreDame mentioned, the CLS is arguing that other groups are allowed to enforce its members to comply with a national charter (which they are defining as discriminating because anyone who refuses to comply with the charter rules is not allowed to be a member) but groups like the CLS, whose national charter prohibits gays for religious reasons, are not allowed to enforce their charter.
I’d say it’s a pretty thin argument. If your national charter does not conflict with the Hastings rules, then Hastings has no issue with your charter. But if your national charter does conflict with Hastings rules, Hastings will not recognize this national charter as overruling their own rules. And it has nothing to do with religion. If you have a religious rule in your charter that doesn’t violate Hastings policies, you’re fine. And if you are excluding gays for non-religious reasons, you’re violating Hastings rules and can’t receive funding from the college.
Which brings us back to the point I’ve made before. The issue here is not religion. The issue is does a college have the right to make up reasonable policies on who it will give money to. If you don’t comply with the rules, you don’t get the money. Your reasons for not complying are not relevant.
I think it’s a little far-fetched to imagine that a sizable number of atheist students are going to invest the kind time required to take over a lame-ass college bible club just to fuck with them.
For what it’s worth, the club is arguing that they’re not discriminating on the basis of sexual orientation, but on the basis of belief/viewpoint. The club is saying that by a person saying that they’re gay, that person is saying that that they accept their homosexuality as ok…that people can be “gay” rather than just having homosexual feelings. They’re saying that belief in the very concept of gayness violates the club’s beliefs.
After reading this Slate article, it’s completely unclear to me what exactly the school’s policy is or how it was applied, so I’ll have to pull out of this thread.
You’re a better human than I am, then.