SCOTUS will hear case of Tolerant v. Intolerant

Great Debates
1

OK, it’s actually called Christian Legal Society v. Martinez.

The Christian Legal Society sought recognition as a “Registered Student Organization” from Hastings School of Law in San Francisco. This is a designation that the school provides to organized student, faculty, or staff groups that allows them to place announcements in the school newsletter, send fliers through the school’s mail system, send broadcast messages to all users of the school’s e-mail system, and participate in the school’s annual “Student Organization Fair,” from which new first-year students may be recruited. Each organization is required to inform members that they are not sponsored by the college and that their views are their own; in addition, Hastings explictly disavows sponsorship of any of the groups. In 2004, Hastings recognized over sixty such groups; the Christian Legal Society is the only group in the history of the school to be denied recognition.

Why were they denied, especially given the fact that Hastings approved such polar opposites as “Silenced Right,” a pro-life group, and Law Students for Choice? Because the group’s bylaws, requiring each voting member to affirm certain religiously-based statements as truth, ran afoul of Hasting’s non-discrimination policies. Hasting’s policy requires that all groups be open to all interested students, regardless of what personal beliefs the student has.

The specific sticking point seems to be gay and lesbian students, who under CLS policy would not be permitted to become members or serve as officers.

CLS sued, and ultimately the Ninth Circuit held that the denial of recognition here was viewpoint neutral and reasonable.

This was an especially interesting in light of the fact that the Seventh Circuit had previously considered an almost identical dilemna, and had found the opposite: in Christian Legal Society v. Walker, the Seventh held that a school could NOT deny recognition to a chapter of the very same organization based on nearly identical reasoning.

So with a clear circuit division, it’s perhaps no surprise that the Supremes took this one on.

Should the rule be that the tolerant must tolerate all, even intolerance?

Here is the brief from Hastings in opposition to the Court’s granting cert (saying, in effect, we like the Ninth Circuit’s decision just fine). And here is the brief in favor of granting cert and overturning the Ninth.

Here is the Seventh Circuit’s decision.

The Ninth Circuit’s opinon was two sentences, a memorandum disposition affirming the district court, which in turn relied strongly on a case with what they thought were similar issues, Truth v. Kent School District.

2

How about you first tell us what *your *view is on your own topic, Socrates? :dubious:

BTW, to clarify your thinking, “the tolerant” are for tolerance by everyone, not just themselves. It doesn’t work any other way, ya know, despite your tortured attempt at redefinition.

3

So Hastings has a general policy requiring open membership of a society in order to receive some benefits. It doesn’t have a policy restricting the beliefs a society can or cannot hold in order to get those benefits. One society does not wish to have open membership but wants the benefits from the school.

Truth, from its very start, seems a little off point, to the extent that the rule said that clubs could not exist at all without a charter. Here it doesn’t seem, from what you have said, that there is any problem with CLS being allowed to exist even as a society which does not permit open membership - the debate is over their access to specific benefits.

The school has chosen to restrict those benefits based upon adherence to a particular aspect of non-discrimination, that is open membership. It appears from the case law I remember they have a right to do that. I find that sort of thing troubling on First Amendment grounds, but I think it is pretty settled law. What the CLS wants, then, is exemption from a generally applicable anti-discrimination policy. In other words, they want special treatment, because the discrimination that they want to practice is based on religion, not based on, say, political beliefs. It would strike me as ridiculous that Hastings Students for a Traditional Society, for example, are not permitted to exclude people for being gay (and still maintain access to the benefits) while Hastings CLS should be permitted to exclude people for being gay because they dress it up as a religious belief. That would be the very heart of establishment, IMHO.

I’m intrigued to see the way the Court goes on this. I can’t remember which way Scalia went on the boy scouts case, but I have essentially given up expecting consistency from him on ‘culture war’ issues.

4

Me, too.

Could the Jewish Legal Society be required to admit to its membership “Jews for Jesus?” What if the JFJ crowd decided to try to “take over” the organization by flooding the membership roster and then electing their own candidates as officers, in an effort to completely alter the message of the Jewish Legal Society?

5

Does it make a difference that California law explicitly bans discrimination based on sexual orientation in schools (CAL. EDC. CODE § 220)

and Illinois, the state school of which is in question in the 7th circuit case, doesn’t?

6

So far as I can tell, this was not decided on the basis of state law.

7

I’ve seen that happen. The Oxford University Monday Club, possibly the single most odious organization on the face of the planet, packed the Oxford University Liberal Society membership, and elected the officers. In oredr to purge themselves, the Liberals had to drop University from their name, allowing them to exclude members based on beliefs.

So yes, the JLS could be required to do that, if they want to carry on receiving benefits from the school. If someone wants to set up Hastings Student Klan Society (guarranteed no blacks, no homos!), there appears to be nothing stoppign them from so doing. But they cannot use the school’s email servers to announce their meetings. I don’t see anything unconstitutional in that under current precedent, and the idea of carving out an exemption to allow religious based bigotry but not political based bigotry strikes me as patently unconstitutional under Smith v. Employment Division. But the Court has changed since then, and God knows what they will do.

8

It looks to me like the policy is, as stated, “viewpoint neutral.” There’s no difference betwen excluding gay people from a group, and excluding Mexicans.

Under this policy, yes. So what?

Who gives a shit if they do? The other members can disband, or stop using school resources if they don’t like it. It would be par for the course for aggressive, evangelical Christians to try to do something like that, though.

9

How are you defining “the beliefs a society can hold”, if not the beliefs held by the society members? Because “Hasting’s policy requires that all groups be open to all interested students, regardless of what personal beliefs the student has”. That seems to me to be a policy dictating what beliefs a society cannot hold. This policy guarantees that a group can’t hold a belief in anything, insofar as it can not refuse membership even to those who openly, vehemently and completely oppose the beliefs stated in the group’s own charter/constitution.

To give you an example, imagine that a group of students wanted to start the equivalent of a KKK chapter as one of the societies. Given the small number of vocal racists likely to be attending Hastings, how could this group prevent anti-racists from simply swamping the membership? And if they can not do this, how can you claim that a KKK society that consists of 6 racists and 94 ant-racists holds the racist views appropriate to the KKK?

It seems disingenuous to claim that Hasting’s doesn’t have a policy that restricts what beliefs a society can hold. In practice that is exactly what this policy does.

To me the whole thing seems more about freedom of association than about freedom of religion. Any individual should be free to associate or not associate with whomever they like. When representatives of the state start saying that group members have to associate with people they despise, even people whose primary motivation is to undermine the society, or else lose state benefits available to all other groups, that crosses a line.

10

No, it just says you can’t use school resources for any group which is not open to all students. The beliefs are irrelevant.

Freedom of Association has nothing to do with it either. The freedom to associate does not mean you have a right to use a school email sytem.

11

I don’t see where the CLS would have a leg to stand on. It’s not like they’re being denied to be a private group or right to assemble, they just cannot use school property, funds, or resources without being compliant with the school’s bylaws.

As for this:

Did you happen to read the findings that you linked to? The cases are quite dissimilar as SIU had previously done things that Hastings has not:

SIU had a history of allowing discrimination by the groups on campus. Hastings has not.

12

Under this rule, as far as I can see, there is nothing preventing a society open to all being set up professing any belief under the sun, and still getting benefits from the university. That members can change the ‘official’ beliefs of a society does not strike me as a problem.

It’s not Hasting’s policy that restricts what beliefs a society can hold, but the beliefs of the membership.

13

Isn’t the reverse deemed ok by the courts? That is, the likes of Bob Jones University seem quite capable of saying no group on campus may have gay members (at least inasmuch as homosexuality can get you tossed from the university outright).

Why shouldn’t this work both ways?

14

One difference might be that Bob Jones is a private school, while Hastings is state run.

15

Well, yes and no. Hastings for a start is a state school (correct me if I am wrong) and so is bound by a different set of rules to a private institution such as Bob Jones. Even private colleges, though, have to obey certain rules, and can get pretty extreme penalties (such as loss of tax exempt status) if they don’t.

But here, Hastings almost certainly couldn’t say no group on campus can have gay members. Under Californian law posted earlier that would not fly. I also think it highly unlikely to survive review under federal law either.

16

Except according to the CLS writ, so does Hastings.

17

(removed because it duplicated Captain Amazing’s post.)

18

But Hastings permits the “Silenced Right” group to require its members to be committed to the goals set out by the leadership.

Or go back to my earlier question: presumably Hastings would grant recognition to the Jewish Legal Society. May the Jewish legal Society exclude “Jews for Jesus?”

19

I am not sure this works for them. The “objective of the organization” seems to be the common theme. That is obviously not a constant - it changes dependent on the membership. The Hasting’s policy allows for free membership, and seems to allow societies to remove those who do not support the objectives while being a member. The ATLA one is a little different, because it includes the mission of an external organization. The Motorcycle Riders Club includes such a meaningless catch all (have an interest) it allows people of any viewpoint to join.

What CLS is trying to do is exclude based on what you might do, not on what you do. They seek to exclude a homosexual who might be in full agreement with their organization, even to the extent it discriminates against homosexuals.

Saying “you cannot be a member of the Student Democrats if you sit in meetings saying ‘Palin is right.’” is a very different thing to saying “you cannot be a member of CLS if you are gay, regardless of your views” or “you cannot be a member of the Hasting’s Klan if you are black, regardless of your views.” It is a categorical, preemptive exclusion of a group rather than a retroactive measure.

Were CLS’s policy different, this might be more applicable. Were they to say, for example, anyone can join, but you can be removed if you do not support the objectives of the organization, and said objectives included the preaching that homosexuality is a sin, I would probably be more on their side. But that isn’t what it says.

20

Do they?