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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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As the Supreme Court enters its new session this month, no issue looms as large as religious liberty in America. At the end of its last session, the Court, in an unprecedented and potentially devastating blow to the first freedom, denied the right of a voluntary Christian organization to determine religious standards for its membership at a public university. On June 28, by a 5-4 vote, the Court ruled in Christian Legal Society v. Martinez that the University of California’s Hastings College of Law could deny recognition to the group because it restricted membership to those who adhered to its principles. 

The Supreme Court and Religious Liberty

Justice Scalia

Much media commentary on the case suggested that the Christian Legal Society (CLS) was denied school recognition because it excluded gays and lesbians from membership. That is inaccurate. CLS bylaws restricted voting and leadership to those willing to sign a statement of faith affirming their commitment to live according to Christian beliefs and principles, one of which was to refrain from sexual intimacy outside of marriage understood as the sacred union of husband and wife. Thus, celibate gays and lesbians who affirm Christian doctrine could be voting members, elected leaders, or Bible study instructors, while heterosexual students who reject the doctrine of sex only in marriage could not. In other words, CLS was affirming a viewpoint: its understanding of Christian discipleship. 

The Court’s decision is a multiple blow: to religious liberty, freedom of association, and free expression. While some have proposed a targeted legislative remedy—a law denying federal funds to schools that restrict students’ freedom of association and expression—the case has implications far beyond the rights of campus groups. Indeed, the ruling signals that the feared collision between politically correct policies and religious freedom is upon us. It is of a piece with other growing threats to religious autonomy and rights of conscience produced by the fusion of the regulatory state with an elite culture increasingly indifferent or hostile to religion.

But here is where an ironic backstory comes into play. Conservatives unquestionably are the most vigorous defenders of religious autonomy today. Yet it was the Court’s conservative leader, Antonin Scalia, who two decades ago led the way in eliminating a key lever that CLS could have powerfully invoked: the legal doctrine that infringements on religious freedom be treated by the Court with “strict scrutiny.” Recovering this standard may be the best—and in an era of liberal jurisprudence perhaps the only—way to stem the coming judicial onslaught against the free exercise of faith. 

The facts of the current case illuminate the growing threat to religion from elite secular institutions. The Christian Legal Society is a nondenominational organization of Christian law students, lawyers, and judges with chapters at 165 law schools. In 2004, it applied to be a registered student organization at Hastings, along with 60 other student groups representing Hispanics, blacks, Jews, Muslims, Vietnamese, Democrats, Republicans, feminists, and advocates for various causes—pro-life, pro-choice, environmental protection, animal rights, various constitutional schools of thought, and so on. Without official registration a club is hampered in its ability to recruit members, announce events, and hold meetings on campus. In 1972, the Court held that such denial on the basis of viewpoint is unconstitutional (though back then the excluded club was the fashionably radical SDS). 

In its nearly century-and-a-half history, Hastings has denied registration to exactly one group: the Christian Legal Society. The school initially justified its stance by claiming that the bylaws of CLS discriminated on the basis of religion and sexual orientation and thus violated the school’s policy to not “discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex, or sexual orientation.” CLS requested an exemption, which the school denied. CLS then sued Hastings on the grounds that the denial of recognition violated the organization’s First Amendment rights to speech, assembly, and religious expression. In an ominous sign of judicial disregard for religious liberty, CLS lost at both the district and circuit court levels before gaining a Supreme Court hearing. 

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