Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The Supreme Court is set to hear oral argument on April 19 in Christian Legal Society v Martinez, a case that involves the question of whether universities can refuse to recognize student groups that want to set their own membership criteria. As I've written many times, I'm on the side of the CLS on this one and think all student groups should be allowed to discriminate as long as all students are free to start their own groups (which they are).
I had an interesting debate on this case with Barry Lynn, executive director of Americans United for Separation of Church and State, on my radio show recently. Though he is a friend and I am a staunch supporter of his organization, we disagree on that case. And now that the briefs filed with the Supreme Court are available online, you can see that this is an issue that makes for strange bedfellows.
It isn't just the religious right groups on the side of the Christian Legal Society here. Also on their side is the CATO Institute, the American Islamic Congress, the National Council of Young Israel, and the Sikh American Legal Defense and Education Fund. Obviously, other religious groups want to be allowed to control their own membership and require that those who join believe in the same religion they do.
The Foundation for Individual Rights in Education is also on their side, as is an organization called Gays and Lesbians for Individual Liberty.
On the other side you have the ACLU -- which would ordinarily be aligned with Cato and FIRE in most legal cases -- and the Center for Inquiry, another organization I belong to and work with a great deal. The American Jewish Committee and the Anti-Defamation League are also on the law school's side.
All in all, this issue clearly cuts across political and ideological lines. I find myself in disagreement with groups I ordinarily agree with and in agreement with groups I ordinarily disagree with.
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Slight OT but perhaps Mr. Brayton might be interested in a Church/State case currently being litigated in Arlington, Va.
http://www.washingtonpost.com/wp-dyn/content/article/2010/03/20/AR2010032003068.html
Posted by: SLC | March 22, 2010 9:45 AM
I'll preface my remarks by stating that I do not know UCal's policies regarding campus organizations, and recognition by the administration and student government.
I believe the issue here is whether a student group can bear the official stamp of "recognition," which would then allow them to, among other things, petition the university for funds to conduct some of their activities. ANY group of students may form an organization, based on whatever issue they deem appropriate, draft a charter, bylaws and constitution, publish ads in the local media, post flyers on university property, and hold events in university venues. The issue is purely one of "official" university recognition, and the right to apply for funds from fees collected from students. Having in the past formed my own student organization, I read the university rules on founding an organization, and the nondiscrimination clauses are stated prominently, several times.
So it seems to me that the CLS is free to form an organization
Posted by: TGAP Dad | March 22, 2010 9:46 AM
When you wrote on this issue in the past my first thought was that it would be unfair for a university to fund a discriminatory group because it would leave some students paying through their fees for an organisation they cannot join. However if all students are equally able to form groups (e.g. 'Not The Christian Legal Society' Society) then I don't think this objection is still necessary.
Posted by: Matty | March 22, 2010 9:54 AM
I'm with Martinez on this. Basically, the issue at hand is whether it is legal for universities to require that all groups which receive university funding be open to all students. This is a content neutral-rule, so I don't see how it can be illegal for them to make it. I suppose you might come up with rules that do allow discrimination that would apss legal muster, but I see no reason universities are under any obligation to do so.
Posted by: Ace of Sevens | March 22, 2010 3:12 PM
If Ace@4 represents the central question accurately, I can't say I disagree with him. It may not be advisable for the university to do this, but I can't say it's not legal. Open membership is a content-neutral criteria that serves a legitimate secular purpose.
Posted by: Shygetz | March 22, 2010 3:43 PM
On one hand the ability to form your own group isn't very satisfying. In the end the criteria could be narrowed down to a subset of one. You can sit in a room alone and preside over your 'meeting'. Oh, joy.
There is also the matter of discrimination for race, sex, etcetera. Separate but equal isn't and never has been. It's the old Chicago rule: There is a club and your not in it. Some groups will enjoy favor and funding and will act as a nexus for social, political, economic control. Belonging has benefits in social standing, prestige and connections that lead to profits.
Wasn't that why schools and public facilities were integrated? Why segregation was seen as a bad thing and discouraged by law and violence if necessary.
On the other hand exactly how does one enforce membership of someone unwanted into a group.
My stand is that to the extent CLS is funded or accommodated by public resources it has to have open membership. If they wish to pay for meeting rooms, even hiring public meeting rooms at current rates, with private funds they may have closed membership.
Posted by: Art | March 22, 2010 3:56 PM
I think groups should be able to exclude everybody but themselves but not to specify groups to exclude.
For example, the Sons of Poland should be allowed to say only people of Polish descent can join but not that Ukrainians can can but Russians cannot; or the Knights of Columbus can exclude everybody but Catholics but cannot exclude only Jews.
I guess to be consistent, I'd have to say the White Aryan Resistance should be allowed to allow in only white people but not exclude only blacks.
Posted by: cdrealist | March 22, 2010 5:01 PM
I'm not clear on the legal issue here, since when is a student group being given recognition by a university some sort of constitutional right?
Posted by: daniel rotter | March 22, 2010 9:21 PM
Basically, CLS claims if a university receives public funds, they cannot make student organizations take members they do not want. It's a violation of their first amendment rights. (In this case, I believe they have an alleged religious obligation to ban gays.) If they were being singled out in some way, they may have a case (for instance, if a gay group were allowed to have a gays only policy), but they aren't and content neutrality seems pretty clear to me.
Posted by: Ace of Sevens | March 22, 2010 11:01 PM
"...they cannot make student organizations take members they do not want."
The university is not "making" the CLS do anything. The CLS can ban whomever they want to from their organization, they just can't expect official recognition from the university.
Posted by: daniel rotter | March 22, 2010 11:57 PM