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The Supreme Court and Religious Liberty

How a 1990 decision has come back to haunt us, and how its damage might be undone.

Oct 18, 2010, Vol. 16, No. 05 • By ALLEN D. HERTZKE
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Recognizing the import of the case, a broad array of religious and civil liberties groups joined in amicus briefs on behalf of CLS. These included the U.S. Conference of Catholic Bishops and groups representing evangelicals, Jews, Sikhs, Muslims, and black and Hispanic Christians. The briefs on behalf of CLS were compelling and often passionate. The officers and past presidents of the Evangelical Theological Society argued that forcing religious groups to admit persons who do not share the faith “will allow every public college and university in the United States to exclude all evangelical Christian organizations.” Agudath Israel of America warned that affirming the lower court decision against CLS would “point a judicial dagger at the heart of the Orthodox Jewish community in the United States.” CLS even gained support from the libertarian group Gays and Lesbians for Individual Liberty, which argued that the right of association is a crucial resource for “dis-favored and disenfranchised minority groups”—indeed, that it is pivotal for gay rights—and that Hastings’s policy of “compulsory association” was “both self-defeating and unconstitutional.” 

Advocates International, a global network of Christian lawyers, cautioned, further, that a judgment against CLS would undercut the fight against persecution around the world in the face of the growing tendency of governments to muzzle religious people. And it would put the United States in the perverse position of undermining at home the rights of expression, association, and religion enshrined in the Universal Declaration of Human Rights that Americans championed at the end of the Second World War. 

As the case moved through the stages of litigation, it became clear how disingenuous Hastings officials had been in claiming they applied the same standard to all groups. Justice Alito devastatingly showed in his dissent that school administrators went through legal contortions to justify their singular rejection of CLS. They initially invoked California’s nondiscrimination policy, apparently applying it for the first time against a voluntary student group for religious and sexual-orientation discrimination. After CLS sued the school, charging that this odd interpretation of “nondiscrimination” would perversely discriminate on the basis of religion and viewpoint, the school suddenly discovered an “all comers” policy, which required all student groups to admit any applicant. But up to that point, numerous clubs had openly and reasonably restricted membership to those who adhered to their principles. And only after CLS sued did the law school instruct certain groups, such as La Raza, which restricted membership to Hispanics, to change their bylaws to allow “all comers.”

Michael McConnell, a former circuit judge and constitutional scholar now at Stanford, who presented the oral case for CLS to the Supreme Court, emphasized the absurdity of forcing groups to accept members hostile to their core principles or message. Under a true “all comers” policy Democrats would have to accept Republicans, Jews Holocaust deniers, and African Americans racists. Remarkably, to defend its supposed all-comers policy, the school’s acting dean, at one point in the litigation process, conceded that a black student organization must admit white supremacists. When CLS challenged the constitutionality and plausibility of an “accept-all-comers” policy, however, the school clarified its position yet again. This time it granted that, while a student organization could not deny membership to those who wished to change the group’s “message,” it could prohibit students seeking its “demise” by hostile takeover (good luck figuring out those boundaries). Alito described this third iteration as an “accept-some-dissident-comers” policy. 

Why would Hastings twist itself into knots, and repeatedly dodge common sense, to exclude a single voluntary student group with seven—yes, seven—members? Apparently, traditional biblical teaching on sexual morality is the one unacceptable viewpoint, which makes risible the school’s claim that its policy is intended to ensure and foster a wide “diversity of viewpoints” and “the highest standards of .  .  . freedom of expression.” 

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