I see that you quote from the dissenting opinion, but that isn’t a conclusive cite that the policy did not exist, only an opinion that the school failed to show the existence of the policy before the incident(s) that led to the lawsuit.
And since this is from the dissenting opinion, am I wrong in assuming that those in the majority did not see things the same way?
The qualifications you listed are not standards, they are about conduct. What organization would be forced to keep as a member, say, a belligerent drunk who disrupted meetings and started fights? How is it discriminatory to disallow disruption of the groups goals?
Keep in mind that Hastings did recognize the Christian Legal Society with no problem in the past. And it had a policy saying that no student organization could exclude members for being gay, which the Christian Legal Society was theoretically in compliance with. (I say theoretically because as far as I know no gay student ever attempted to join the Christian Legal Society.)
The Christian Legal Society then announced it was changing its membership rules at Hastings to bring them into compliance with the national CLS rules. And these new rules said that gays could no join. And that’s when Hastings withdrew their support.
So Hastings had a history of supporting the Christian Legal Society. And it was the CLS not Hastings that changed that situation by changing its policies. So the facts do not support any claim that Hastings targetted the Christian Legal Society.
As for the claim that the CLS is the only organization that ever had its support cut off, so what? As far as I know, every other student organization has complied with Hastings rules, which are the same for every organization.
Hard to see how Hastings can discriminate against one student organization when it applies one set of rules to all of them.
I don’t think that the argument that they changed this policy just to prevent the CLS from excluding gays carries much weight, anyway. Okay, let’s say they did implement the policy precisely five minutes after the CLS got all homophobey. So what? The school can’t set new policies about what groups are and are not allowed to do? Once they set policies, those policies are frozen for all time?
Worst case scenario here is that the CLS started a practice that the administration disapproved of, so the administration implemented a policy to prevent that practice. The fact that it was a Christian organization that started the practice is incidental, unless one can show that a non-Christian organization had a similarly discriminatory practice and was allowed to continue it.
I think the stronger point is that there are other groups that discriminate for other types of things (as cited above), which is inconsistent with the “take all comers” policy the administration claimed they were enforcing. It seems clear to me that Hastings, at least at this point, has held CLS alone to a standard they do not hold other groups to, that they permit other groups to limit membership. From Alito’s dissent:
So, Hastings interprets its nondiscrimination policy to mandate acceptance of all comers, apparently, only for CLS, and it’s clear (to me at least) that it’s because they find this particular example of discrimination offensive while the others are not. But to admit that makes their position and argument weaker.
For universities accepting public funds, at least, that seems to be a first amendment problem. Not sure how the majority dismissed this, since no one seems to disagree with these particular facts.
The CLS, ISTM, was enforcing an identical standard, excluding those who “exhibit a consistent disregard and lack of respect for the objective of the organization.”
In my opinion, what Hastings did was a first amendment violation, but they remedied that (I think) by truly implementing a “take all comers” policy in 2005. So it seems a bit moot for them, but I think the majority got it wrong–Hastings was limiting free speech, they applied their rules only to those they apparently strongly disagreed with. They were wrong, though I think they have since fixed the problem. Which, to me, makes the dissent the correct opinion, which essentially points out, “Hastings ran afoul of this group’s constitutional rights, though they did scramble to fix their policy afterward in the face of some embarrassing questioning.” This has significant first amendment implications notwithstanding the fact that Hastings may have fixed the inconsistencies in its program. We’ll see how it is used in future rulings.
If the objective of the group was to exclude gays, then the objective itself is flawed and innately discriminatory, and is unsupportable, IMO.
And that’s what you seem to be arguing here: that CLS should be allowed to have as one of it’s basic tenets a policy that is unacceptable to UC Hastings, AND UC Hastings should be forced to provide material and financial support. That view is, as a majority of justices agreed, unsupportable by the law and the facts in this case.
I don’t even see how you can see this as a first amendment violation. No person or group was ever prevented from forming or pursuing their goals. No one was ever made to stop saying something or alter their message or purpose, unless they wanted the material and financial support of UC Hastings. If the message or purpose of the group is important enough, I would think they would find a way to forgo the modest support of UC Hastings and simply get on with their business.
I don’t think you are going to be able to explain your reasoning well enough to convince me that the denial of a conditional benefit is the same as a violation of rights, but if you want to try, I’ll be here to read it.
In the other two groups you cited above, the group would accept anyone as a member, and only bar them if their later behaviour violated the groups precepts.
Being denied a benefit you are entitled to because of your viewpoint is discrimination. It is against the constitution for a government to discriminate based on viewpoint. If congress passes a law that gives a check to every newspaper except those that print bad things about the President, it violates the freedom of the press by discriminating based on viewpoint. This case is about the same thing, Universities do not have to have rules allowing anyone to start an officially recognized group, but if they have those rules they can not violate them because they do not like the viewpoint expressed by a certain group.
The thing is, they *weren’t *“entitled” to it. They existed at the pleasure of the university and our tax dollars. They’re still free to exist- but we don’t have to pay for them.
How about on the basis of preferred sexual partner? Would that be okay?
Public money is not an entitlement, and they were not denied recognition because of their “viewpoint”, but because they themselves were discriminatory. This group had no Constitutional rights violated. They were still permitted to meet on campus, say whatever they wanted and exclude whoever they wanted, just like any other hate group. There is no constitutional right for hate groups to receive taxpayer money on university campuses, and no discrimination in denying them recognition since the same rules apply equally to all other groups.
No, but you’ll never find that many people with that kind of time on their hands. In the case of a branch of a national organization, like CLS, the likeliest scenario is that the “original” members would file a complaint, the national organization would investigate, and withdraw the branch charter. Then the existing branch would have to rename itself- or, more likely, the non-hostile membership would form a new branch and apply for a new charter.
It’s not like that at all. What it’s like is if the government was giving money to people in Louisiana and Texas because their houses were damaged by a hurricane and some guy in Montana said he entitled to some money too. And that if the government doesn’t give him the money he wants, it’s discriminating against him for not having been in a hurricane.
You’re not entitled to money just because you want it. The people giving out the money can make up rules about who gets the money. And if you don’t want to follow their rules, they don’t have to give you their money.
They are not being denied a benefit they are entitled to because of their viewpoint. They are being denied a benefit they are not entitled to because they discriminate.
You keep couching it in terms of the University discriminating against CLS’ because of its viewpoint, which is not the case. The Christian Legal Society is free to bar non-Christians from membership, since refusal to accept of Jesus Christ as one’s savior is clearly in contravention of the organization’s principles.
However, heterosexuality is not an essential component of Christianity, so refusal to accept homosexual members is simple discrimination.
If the organization wants to modify its principles and rename itself the Heterosexual Christian Legal Society, I daresay SCOTUS will change its tune.
Ironically, CLS has provided largely successful representation for a number of other Christian campus groups, including Beta Upsilon Chi, which admit only Christians, but were refused recognition by colleges.
If government funds are available to any group except one expressing an unpopular position, then that’s a limitation of free speech.
If the government provided funds to support a particular religion, even if they didn’t restrict any other religion’s ability to worship as they’d like, that would not support a valid argument that there’s no constitutional “foul.” Same here. If benefits are available to all groups, save the one whom the government (by proxy, via the university) disagrees with, then free speech is restricted. Some in this thread (not necessarily you) seem to be under the impression that first amendment violations only occur if the government specifically prohibits certain expressions. Excluding only “offensive” organizations from government support, by applying a standard inconsistently, is still a restriction of free speech. Not everyone gets the same access and benefit, which necessarily means their message is muted.
The first amendment is there specifically to protect unpopular speech. I didn’t like the Nazis marching in Skokie either. But that was their right.
The argument here is that, because Hastings receives money from the government, it is bound by the same restrictions that apply to government: they cannot discriminate against people on the basis of religion, race, or sex. If the CLS is receiving money from Hastings, doesn’t that same restriction apply to the CLS?
Of course other people get to define it for them. That’s why minors can consume wine during Communion at their church, but I can’t provide my neighbors with LSD in my backyard “church”.
Because they won the cases they filed on behalf of other groups, but lost their own.
Nope. Restricting government benefits to whites only, for example, is a constitutional no-no. But if all people have access to these benefits equally, the whites are free to spend their money on whites alone. The CLS is not a government agency by virtue of receiving money from the government.
The university is a proxy for the government in this context, or so courts have ruled. The university is disbursing money and benefits on behalf of the government, at least to the extent they are funded by the government. Like it or not, that distinction is pretty clear. There is no end of court cases dealing with public universities’ restriction of free speech.