Discrimination or Freedom of Speech?

Today, the Supreme Court heard arguments from the Christian Legal Society at the University of California's Hastings College of Law. The Christian Legal Society is suing Hastings College because it believes that its religious freedoms were violated when it was denied recognition as a student group. In 2004, the Christian Legal Society implemented a requirement that voting members sign a statement of faith. Shortly thereafter Hastings revoked the society’s recognition as a student group because its membership requirement violated the strict nondiscrimination policy, which states that student groups that wish to receive money from the publicly financed college cannot refuse membership on the basis of race, religion, national origin, sexual orientation or other prohibited factors. Hastings’ nondiscrimination policy is consistent with California law prohibiting postsecondary educational institutions that receive state money from discriminating based on religion or sexual orientation. In 2006, a San Francisco Federal Court decided in favor of Hastings. This decision was affirmed unanimously by the Court of Appeals for the Ninth Circuit. A more detailed description of today’s hearings can be found in this Wall Street Journal article.

The major constitutional issues raised by this case are whether the nondiscrimination policy of Hastings is neutral or hostile towards religion and whether the policy is necessary to avoid violation of the Establishment clause. I believe that the policy is neutral towards religion, deeming it unnecessary to consider Establishment issues. This case is very similar to Rosenberger v. University of Virginia. Ronald Rosenberger was among a group of undergraduate students that formed a student publication at University of Virginia. The publication, called Wide Awake, focused on contemporary issues from a religious perspective. The University of Virginia denied school funding to Wide Awake because it believed that the publication “would jeopardize the University's tax-exempt status.” Rosenberger subsequently filed suit claiming that the University had violated his freedom of speech. The Supreme Court ruled in favor of Rosenberger, claiming that the University of Virginia had engaged in viewpoint discrimination and that providing funding to the student publication would not have violated the Establishment clause.

However, there are several key differences between this case and Rosenberger v. University of Virginia. Firstly, Rosenberger was argued on free speech grounds and I do not think that the Christian Legal Society can make a valid free speech case. In my opinion, Hastings did not engage in viewpoint discrimination because they did not attempt to sensor the content of Christian Legal Society meetings or brochures. The university merely enforced a nondiscrimination policy consistent with California state law. Secondly, I believe that Hastings faces a real risk of violating the Establishment clause by providing funding to the Christian Legal Society because Hastings would essentially be funding a religiously discriminatory membership requirement. By doing so, the Hastings students and the public at large could see the college as favoring Christianity over other religions. The University of Virginia was not a risk of violating the Establishment Clause because they were funding a group that was verbal about its opinions, but did not have any discriminatory policies.

Opinions of the Supreme Court Justices were mixed today. The always outspoken Scalia noted "It is so weird to require the campus Republican Club to admit Democrats, not just to membership, but to officership. To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy." A decision on this case is expected to be released in June.