Christian Legal Society v. Martinez: The Issues of Freedom

By Dr. Jeff Mirus ( bio - articles - email ) | Jun 29, 2010

In Christian Legal Society v. Martinez, the U.S. Supreme Court ruled yesterday that if a Christian student group wishes to be officially recognized at an American university, then it does not have the right to restrict its membership and/or leadership to practicing Christians. The case arose when the University of California’s Hastings College of Law denied recognition to a student group, the Christian Legal Society, based on its discrimination against those who do not practice Christian sexual morality. The Court’s decision is very likely a plunge into the abyss we have long seen opening at our feet, but there are important lessons to be learned here as well.

Like all purposeful groups, Christian Legal Society does not want to fall under the control of those who do not share its purposes. Therefore, its bylaws provide that an obvious refusal to live according to Christian sexual teachings, or advocacy against those teachings, disqualifies a person from either voting membership or leadership positions in the organization. But these provisions were judged by the Hastings College of Law to violate the school’s anti-discrimination policy (the red flag inevitably being discrimination against gays, that is, those who both defend and practice homosexual behavior). Accordingly, Hastings revoked its recognition of Christian Legal Society as an approved student organization, thus barring it from school funding and related campus benefits. Christian Legal Society took Hastings to court, lost at a lower level, and has now lost 5 to 4 at the Supreme Court.

There are several key lessons to be drawn from this ruling. The most important is that much of our culture, and our courts in general, can no longer distinguish between what we might call volitional and non-volitional issues. In siding with the majority, Justice John Paul Stevens asked, “What if the belief is that African-Americans are inferior?” One assumption in this obviously rhetorical question is that if a group controls its membership based on ideas sufficiently contrary to the prevailing orthodoxy, then every right-thinking American should agree that such a group ought not to be recognized. This in itself is dubious. But another assumption here is that discrimination based on sexual behavior is morally equivalent to racial prejudice.

Even if we regard homosexual inclinations as innate and unchangeable, this does not imply that discriminating on the basis of homosexual behavior is necessarily wrong. We all have many kinds of inclinations which lead to behaviors, good and bad, on which we ought to be judged. In contrast, the color of one’s skin (which is certainly involuntary) does not produce a set of behaviors about which one may make legitimate moral judgments. No: Discriminating on the basis of skin color is an altogether different sort of judgment.

The second lesson is that this particular case is not only about religious liberty, which is what will get all the press. It is even more about freedom of association. It is a normal part of what it means to be human to form associations to pursue particular ideas or principles. The first task any such new organization faces is to adopt bylaws which will preserve its essential character in the future, both ensuring its continuation over time and preventing it from being deflected from its original purposes—especially protecting it from being hijacked by those who oppose its principles, who might otherwise (perhaps through superior numbers) take control.

In a separate opinion, Justice Anthony Kennedy suggested that inclusiveness and diversity are especially valuable in a law school, where students of varying backgrounds and beliefs learn through open discussion. But in this decision, the Court seems to suggest that students must operate purely as individuals, as if the social nature of man does not provide for the formation of groups to pursue varying causes—interacting, opposing and often enlightening each other within the larger community. By this ruling, it is possible that each group (or at least each group which strays far enough from mainstream ideology) will be under pressure to admit members who wish to undermine its mission, so that all groups become homogeneous, turning both diversity and inclusiveness into meaningless terms.

In the previous sentence I used the phrase “under pressure” rather than “required” because I hoped to highlight a third important lesson. Note that neither Hastings nor the Court ruling threatened Christian Legal Society’s right to operate, or even to operate on campus at Hastings. The question was whether Hastings was correct in its judgment that it must withdraw official recognition from the Society because the Society violates Hastings’ discrimination policies. This is not a foolish question in principle, but it carries a tremendous load of baggage.

Officially-recognized student organizations at American colleges and universities (including Hastings) receive financial benefits from the pool of activity fees paid by all the students.Thus the Court, among other things, had to consider the question of whether a particular student should have to pay an activity fee which supported an organization to which he would not be permitted to belong. While this leads directly back to the proper grounds for discrimination, it also reveals my final point: All organizations—and especially Christian organizations—need to be very careful about seeking public support.

I use the word “public” here to refer to both the university setting and the setting imposed by all government, including our own State and Federal governments. We have seen again and again how things like the acceptance of government grants or even exemption from taxation tends to breed various kinds of dependence, and to cause a gradual warping of organizational purpose in favor of the priorities of the authority handing out the dollars. This is a significant risk for organizations with serious purposes, significant enough to have already led a few deeply-committed institutions to steadfastly refuse every form of government funding.

The harsh political reality is that mechanisms of public financial support give every government an easy first line of control over dependent organizations, and this very fact raises inescapable questions. Should principled organizations ever seek public recognition and support? Can any free society long endure if its citizens are foolish enough to choose, again and again, to accomplish their diverse objectives through taxation and public funding? Christian Legal Society v. Martinez raises the kind of critical issues which make or break not only Christian societies, but all societies which purport to be properly free.