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The Supreme Court heard arguments today 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 homosexuals and other groups.
NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: 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 homosexuals from membership. That meant the group was no longer entitled to a subsidy and preferred use of campus facilities.
CLS went to court claiming the school's rule violated its constitutional right to freedom of association and speech. On the steps of the High Court today, CLS chapter president Ryan Elder said anyone is welcome to attend CLS meetings, but homosexuals and those who practice or advocate sex outside of marriage may not be voting members.
Mr. RYAN ELDER (President, Christian Legal Society): 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.
TOTENBERG: But Hastings Law School Dean Leo Martinez countered that nothing the school has done deprives CLS of its ability to meet and express itself.
Professor LEO MARTINEZ (Dean, Hastings College of Law): Our only policy says that if you want state funding - public funding and if you want to use the Hastings name, then you have to abide by the Hastings policy.
TOTENBERG: 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.
The Christian Legal Society's lawyer Michael McConnell opened by telling the court that the Hastings' All-Comers policy is a frontal assault on freedom of association and the right to form around shared beliefs.
Justice Sotomayor: 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 its funds and otherwise lend it space?
Answer: Not at all. There's a difference between discrimination based on belief and discrimination based on status. We do not challenge the ban on discrimination based on status.
Justice Stevens: What if the belief is that African-Americans are inferior?
Answer: If belief is the basis for exclusion that is permissible. But exclusion based on status is not.
Justice Breyer suggested that figuring out the difference can be very difficult. So what's wrong with the school just requiring any subsidized group to admit all comers, as Hastings has done?
Answer: That would mean that if, for example, there is an NAACP chapter, it would have to allow a racist skinhead in.
Justice 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 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.
Answer: Separation does not apply to private entities when they're operating even on government property.
Justice Ginsburg: So 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.
Answer: The freedom to believe is absolute.
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. And Justice Sotomayor added that it's troubling that some other groups in the past have had bylaws that appear to have some exclusionary policies.
Lawyer 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 Scalia: Frankly, one reason why I'm inclined to think this is pre-textual is that it's so weird to require this Christian society to allow atheists not just to join, but to conduct Bible classes. Right? That's just crazy.
Chief Justice Roberts: Discrimination based on gender and race is fundamentally different from religious belief. Religious belief 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, in the 1980s, when Bob Jones University excluded students who favored interracial dating or marriage, based on a sincere religious belief, the Supreme Court ruled eight to one that the school was not entitled to tax exempt status.
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.
Nina Totenberg, NPR News, Washington.
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