The U.S. Supreme Court hears arguments Monday in a major case testing whether state colleges and universities can deny official status and subsidies to student groups that bar homosexuals and other groups from membership.

The key issue with this case is really this: Can a religious group protect its own, self defined “rights” by barring membership of people that it considers inappropriate, which may include, for instance, gay people who may be considered unclean, or the minions of the antiChrist, or whatever.

Interestingly, this is NOT a cased where a disadvantaged or suppressed group is trying to get unsuppressed. This is a case of a Christian group at an “all comers” college, Hastings College of the Law in San Francisco … a college where you can have a student group only if you allow all to join it … is claiming that they need the right to not allow any gays, or students of any sexual orientation who are pre-maritally sexually active, to join their group.

This is also a case of a shift in social policy. This particular christian group has existed for a long time, but suddenly grew this extra obnoxious set of “morals” and changed their policy. Also, significantly, the new rules are implemented using a “statement of faith” so, in a sense, such statements are on trial in a small way as well.

The Christian Legal Society has long had a Hastings chapter that was recognized as a registered student organization, but in 2004, the group affiliated with the national Christian Legal Society and changed its policy to exclude from membership homosexuals and those who advocate or participate in pre-marital sex.

“When we did that, the director of student services said that the statement of faith in our bylaws violated their rules against discrimination on the basis of religion and sexual orientation,” says Isaac Fong, a former chairman of the campus Christian Legal Society.

The full story reported by Nina Totenberg is here. Audio podcast of the story is here. Maybe. (I can’t guarnatee that podcast link will work for you, but you can go to the previously cited link, the web page, and get to the audio story that way.)

H/T: Nancy W.


  1. #1 Azkyroth
    April 19, 2010

    The key issue with this case is really this: Can a religious group protect its own, self defined “rights” by barring membership of people that it considers inappropriate, which may include, for instance, gay people who may be considered unclean, or the minions of the antiChrist, or whatever

    It sounds to me like the key issue is whether a religious group is entitled to retain the financial support and promotion of an educational institution while doing so.

  2. #2 Bob
    April 19, 2010

    Wouldn’t the real issue be whether a publicly funded college can deny funding to a student group which does not abide by the rules necessary to be considered a recognized student group, even if the group obeyed the rules in the past?

    We already know from the Boy Scouts and other cases that groups – religious or not – are free to be as racist or homophobic in their membership as they wish. This group also wants public funds to continue their idiocy and they think that the rules shouldn’t apply to them.

    My hope is that:
    — if the College is not treating them any differently than any other group that wants to be recognized


    — if the College is not treating them differently than any non-official student group

    then the court will say that the College is not hindering their free exercise of their religion. The College will probably argue that there is a compelling interest in ensuring that all students have access to student group participation.

    This is sort of like religion in the workplace. If I were Jewish and worked at my job for 20 years, which included a requirement that I work on Saturday as part of the job duties, if I decide that I must now obey the Sabbath laws, it would not be discrimination on the part of the employer if they forced me to work Saturdays. This is a generalization and you could discuss things like reasonable accommodations like letting me transfer to an equal position that didn’t require Saturday work or letting me job share with someone willing to work Saturday, and so on.

  3. #3 Anastasia
    April 19, 2010

    I’m with Azkyroth here. The problem isn’t the existence of a group of bigots. The problem is whether student fees and/or government education funds can go toward supporting a group of bigots.

    Here at Iowa State we actually have an exception to the “all comers” rule for religious groups. I’m really looking forward to learning what the court finds – hopefully I’ll be able to use their findings to challenge our discriminatory policy.

    Here’s the policy if anyone’s curious:

    “Organizations that select their members and/or leaders on the basis of a commitment to a set of beliefs may limit membership and participation in the organization to students who, upon individual inquiry by the organization, affirm that they support the organization’s goals and agree with its beliefs, so long as no student who meets the other criteria for membership or participation is excluded based of his or her status of race, color, age, religion, national origin, sexual orientation, gender identity, sex, marital status, disability, or a U.S. veteran.”

    Sounds ok, but in practice this has been taken to mean that groups can exclude potential members and/or leaders based on “beliefs”. Why have such a clause? Seems like it would be far more appropriate to say “no registered club may discriminate based on any protected class”.

  4. #4 Greg Laden
    April 19, 2010

    Azkyroth: That is probably correct.

    However,there are two other things to consider:

    1) A decision like this can affect all entities that receive federal funding. Perhaps the Boy Scouts don’t get federal funding, but they could, and every missed opportunity for such funding is a new chance to reconsider their position. There are a LOT of entitites that follow federal reguation that don’t technically have to. The nationwise 55 mph speed limit is the classic example: The feds can’t tell states what their speed limits can be. But the US-DOT can decide (well, congress decides for them) to give road funding only to states that have a max 55 mph. When that happened, most states posted the 55 mph limit.

    2) It has to start somewhere. So, the boy scouts can exclude gays and be anti gay. Fine. But, I know of a case where a major funding source for a major group of boyscouts insisted that they change their charter to not be anti-gay before considering more funding. That was not required of them, but large corporations like to avoid being at the wrong end of the controversy. As anti-gay forces are minimized and marginalized, it becomes increasingly routine to not be anti-gay. These federally funded instances matter.

    Do note that there are almost no federal colleges. All public colleges, almost, are state. There are different levels of reasons that a state may follow federal rules or avoid following federal rules … there are requirements that states do certain things, and there are requirements that the feds can’t tell the states to do cerrtain things. It gets messy.

    But that mess is at least partly obviated by the simple fact that there is not a single state DOE that does not receive piles of federal money.

    Look for this to be important when we start to work on National Standards for teaching science.

  5. #5 JasonTD
    April 19, 2010

    At first glance, the core conflict behind this case doesn’t need to be only about religion. There are many groups that espouse a specific set of ideals that not everyone will agree with. College Democrats and College Republicans, environmentalist groups on campuses, etc. all have goals that could be disrupted by an ‘all comers’ policy. In the case of these groups, however, any limits on membership based on ideology wouldn’t violate anyone’s rights to non-discrimination as a protected class. No one could claim discrimination according to any established legal precedent for being bounced from the College Democrats if they were to loudly proclaim support for Sarah Palin (non-sarcastically, at least). So really, it does come down the religious group either accepting all comers when it accepts money from the school, or not getting that money and recognition.


    It is off the original topic, but since you brought it up, issues like the 55mph speed limit back in the day and the coming issue of national education standards show how Congress has expanded its power beyond Constitutional limits over the last century. If there’s something you want the states to do that isn’t an enumerated power, just get them hooked on federal money to do it themselves. Then you’ll have all the leverage you need. I’m all for rigorous science standards. I teach chemistry and physics at a public high school in Florida. But I really don’t like the idea of using federal money as a bludgeon to get around state’s rights. The two reasons to have a 10th Amendment is to avoid one-size-fits-all solutions to local problems and to allow the citizens of states to choose their own path when they think that they can do it better. Mike the Mad Biologist has this take on national standards, for instance.

  6. #6 Greg Laden
    April 19, 2010

    I’m a little unsure about national standards, and my strong preference at this time is to not take anything off the table at all. There are many factors and things can change.

    The argument for local control is, as yo usay, finding local solutions that might work better locally.

    So, do we have local periodic tables of the elements? Does DNA work differently in different locations?

    IT is possible that the best pedagogy is different in different areas, but my own personal view is that comparing state-sized chunks to state-size chunks, pedagogy is pedagogy.

    Local control DOES provide local diversity in ideas which can then spread.

    And, locally, there are differences in ideal content. Personally, I think people in West Virginia should leave High School knowing everything a non-specialist can know about coal mining, because as citizens of that state, they should be more aware of the salient details of key policy. I want everybody to love the oceans and stuff, but states with coasts have more reason to include more marine biology etc. in their cirriculum.

    But those are small variations on a a larger them. I believe that those who are thinkig of a national standads are not thinking of national pedagogy or national curriculum in the same detail that state standards tend to be.

    MTMB does, I think, have it wrong. Massachusetts does not have to lower itself to vaguer standards. But I could be wrong about that.

  7. #7 MadScientist
    April 20, 2010

    I hope the conclusion is “you can’t ban them” because I’m getting really sick of this bullshit about “aha, but they’re not explicitly protected by any laws!” It’s a tough case to argue though, even if it is a case of inequality: “we can pee on them because they’re different”.

  8. #8 itzac
    April 20, 2010

    It’ll be really interesting to see how this turns out.

    The case has already been decided against CLS twice, and rather unequivocally in each case. The fact the Supreme Court chose to hear it at all definitely gives me pause.