An animated and sharply divided Supreme Court heard arguments Monday in a case that could affect public colleges and universities across the country. At issue is whether schools can deny taxpayer subsidies to student organizations that exclude gays and lesbians and other groups from membership.
The University of California's Hastings College of the Law in San Francisco has for 20 years had what it calls an all-comers policy, under which school-subsidized student groups must admit any student who wishes to join.
In 2004, the Christian Legal Society chapter on campus changed its bylaws to exclude gays and lesbians from membership. That meant the group was no longer entitled to a subsidy and preferred use of campus facilities. The group went to court claiming that the school's rule violated its constitutional right to freedom of association and speech.
On the steps of the Supreme Court on Monday, CLS chapter President Ryan Elder said anyone is welcome to attend the group's meetings, but gays and lesbians, and those who practice or advocate sex outside of marriage, may not be voting members.
"If our Christian group is led by people who don't believe in Christianity, then we cease to have a defining voice to express our core religious beliefs," Elder explained.
But Hastings law school Dean Leo Martinez countered that nothing the school has done deprives CLS of its ability to meet and express itself. "If you want public funding — and if you want to use the Hastings name," he said, "then you have to abide by the Hastings [nondiscrimination] policy."
Inside the court chamber, the argument was fast and furious, with Chief Justice John Roberts and Justice Samuel Alito pounding the law school's lawyer with 28 questions, more than half of those asked in a half-hour.
An 'Assault' On Religious Groups?
CLS lawyer Michael McConnell opened by telling the court that Hastings' all-comers policy is a "frontal assault on freedom of association" and "the right to form around shared beliefs."
Justice Sonia Sotomayor asked: So what if a group "wanted to exclude all black people, all women, all handicapped persons?" Are you saying the school would have to "give it funds and otherwise lend it space?"
"Not at all," McConnell responded. There is a difference between discrimination based on belief and discrimination based on status, he said. "We have only challenged the beliefs, not status."
Justice John Paul Stevens followed up: "What if the belief is that African-Americans are inferior?"
If belief is the basis for exclusion, then that is permissible, said McConnell. But exclusion based on status is not.
Justice Stephen Breyer suggested that figuring out the difference can be very difficult, so, he asked, what's wrong with the school just requiring any subsidized group to admit all comers, as Hastings has done?
That would mean, replied McConnell, "that if, for example, there is an NAACP chapter, it would have to allow a racist skinhead in."
Justice Anthony Kennedy, whose vote could be the deciding one in the case, asked about the religious nature of CLS. "Your argument, at its most fundamental level, is that religious organizations are different because religion is all about belief." But, he continued, "don't we also have a tradition of separation? That's the whole reason why church and state, for many purposes, are kept separate, so that states are not implicated with religious beliefs."
McConnell replied that separation does not apply to private parties, even when they are operating on government property.
Justice Ruth Bader Ginsburg pushed the point. So, she asked, if this group believed that "only white men can lead the Bible studies, on your view, the school would have to give them a subsidy."
McConnell's response: "The freedom to believe is absolute."
A 'Troubling' Policy
Following McConnell to the lectern was lawyer Gregory Garre, representing the law school. He got less than a sentence out before Chief Justice Roberts started firing.
You have a policy that discriminates against only one type of belief, religious belief, said the chief justice. And Justice Sotomayor added that "it is troubling" that some other groups in the past have had bylaws that seemed to require shared beliefs.
Garre replied that the Christian Legal Society had stipulated in the lower courts that Hastings has an all-comers policy, and that CLS had never claimed before that the policy was a pretext for discriminating against religious groups.
Justice Antonin Scalia interjected: "Frankly, one reason why I am inclined to think this is pretextual is that it is so weird ... to require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy!"
But Garre held the justices' feet to the fire, repeatedly pointing to the stipulation of facts in which CLS agreed that the school had a policy requiring subsidized groups to admit all comers. If the court now has doubts about that stipulation, said Garre, it should dismiss the case without a decision.
Chief Justice Roberts, returning to the merits of the argument, contended that discrimination based on "gender and race is fundamentally different from religious belief." Religious belief, he said, "has to be based on the fundamental notion that we are not open to everybody. ... That type of exclusion is supported in the Constitution."
But not, replied lawyer Garre, "at all costs." After all, when Bob Jones University, based on a sincere religious belief, excluded students who favored interracial dating or marriage, the Supreme Court ruled 8-1 in 1983 that the school was not entitled to tax-exempt status.
As the argument drew to a close, Justice Alito posed a plethora of questions based on the notion that hostile groups could take over the CLS or any other group by simply showing up in larger numbers. What then would be the recourse for the invaded group, he asked.
Garre replied that the school has rules that allow disruptive members to be expelled, and if that doesn't work, he contended, the invaded group can simply re-form.
Alito replied acerbically: So the new group would be "CLS II."