SCOTUS: Christian group not excused from anti-discrimination rules

Tis the season of Supreme Court decisions. Another one that we've been watching is Christian Legal Society Chapter of University of California, Hastings College of Law v. Martinez. The Law School has a policy that says if a student group wants official school recognition (and financial support from the school) it must adhere to a non-discrimination policy regarding access by all students, GLBT included. The CLS says that they shouldn't be forced to accept GLBT students, and the Law School said, you can do what you want but you can't be an official group with that policy. So the CLS sued for the right to use GLBT students' tuition dollars to discriminate against them on the grounds of "religious freedom".

The court ruled in the all-to-familiar 5-4 that the CLS was not entitled to school recognition. The majority decision:

In a series of decisions, this Court has emphasized that the First Amendment generally precludes public universities from denying student organizations access to school­ sponsored forums because of the groups’ viewpoints.....This case concerns a novel question regarding student activities at public universities: May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students?
....

In accord with the District Court and the Court of Appeals, we reject CLS’s First Amendment challenge. Compliance with Hastings’ all-comers policy, we conclude, is a reasonable, viewpoint-neutral condition on access to the student-organization forum. In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations. CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings’ policy. The First Amendment shields CLS against state prohibition of the organization’s expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.

The danger is of course the dissent, where the right-wing activist judges (let's just be clear on who is activist on this court) would sweep away non-discrimination to protect one particular religious viewpoint.

The Christian group was not denied the ability to assemble or even meet on campus. They were not treated any differently than any other group (they stipulated this in the lower courts, but tried to change the story at SCOTUS. STOP LYING!) They were denied the right to preferential treatment to allow them to discriminate. They are doing the discriminating, but they are claiming victimhood. "If you do not let me discriminate against you, then you are harming me". Sound familiar?

Now, it turns out that there is additional information in this decision that may have a bearing on Prop8. The Advocate reports that the decision ,

upheld the view that gays and lesbians are an identifiable class in the eyes of the law — a characterization that anti-gay-marriage forces have vigorously fought and that attorneys challenging California's Proposition 8 see as a crucial element of their case.

In a Tuesday letter to U.S. district judge Vaughn R. Walker, Theodore J. Boutrous, who argued the high-profile case Perry v. Schwarzenegger alongside lead attorneys Ted Olson and David Boies, wrote that “sexual orientation is not merely behavioral,” and that, as the Supreme Court found Monday in Christian Legal Society v. Martinez, “there is no distinction between gay and lesbian individuals and their conduct.”

LGBT POV has the whole letter, which continues,

In his closing argument, counsel for Proponents claimed that High Tech Gays v. Defense Industrial Security Clearance Office, ... and its dubious statement that “homosexuality is not an immutable characteristic; it is behavioral,” id. at 573, forecloses heightened scrutiny in this case. But as this Court explicitly recognized at the hearing on Proponents’ motion for summary judgment, High Tech Gays, which relied on the now-overruled Bowers v. Hardwick, 478 U.S. 186 (1986), rested on a moth-eaten foundation.

To the extent that anything is left of High Tech Gays after Lawrence, Christian Legal Society has abrogated it entirely.

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