So Here's My Two Cents Worth
Probably the most significant Religious Freedom Case to come down the Supreme Court pike in a decade will be heard on April 19th: Christian Legal Society (CLS) v. Martinez. I should write a law review article but no time to publish before April 19th-maybe later.
CLS is a national organization of lawyers, judges, and law students who self describe themselves as Christians- of all denominations. Until recently it was headed by a Catholic who now holds an Executive Position with Advocates International. He is a fantastic fellow and personal friend. In the interest of fuller disclosure, I here state I even crash the DC chapter meetings of lawyers once in a while for more than the free sodas and they let me. It meets Thursdays (today) once a month at the DC offices of Winston and Strawn. Remind me to pay dues.
Hastings law school in California had a Chapter of CLS. Like most law schools, it hosts a lot of organizations that are related to law and some other discipline, topic or affiliation to get law students to think about how law serves in the wider community. There is a La Rasa chapter, for hispanics, a BALSA chapter (Black Law Students Association), pro life and pro choice groups seeking to apply the law to their various viewpoints, etc. It is what is called a Free Marketplace of ideas. They each participate in obtaining funding through the pool of student activities funding. They each get access to various school provided benefits like the student email listserv to post announcements, meeting space, etc.
The school has a non-discrimination policy that says that the orgs may not discriminate on the basis of race, gender, national origin, sexual orientation, etc. Hopefully the non-discrimination policy also precludes discrimination on the basis of religion- but that oddly isn't what is at issue here as currently framed. (I will challenge that as you will see below) What is at issue is that the school has revoked the ability of CLS to get student group funding because it did something that the other orgs didn't fess to- it admitted essentially it discriminated against- all persons who are sexually active outside marriage-of any persuasion or orientation. It maintains what some people consider conservative and what a generation ago would have been main line thinking that sexual activity outside marriage is wrong as is "fornication" or worse, "adultery", possibly even "sodomy" and other forms of prurient licentiousness and unchastity. It only discriminates for leadership criteria. Anyone can come- they are not in violation of any "All comers" policy if one actually in practice as opposed to stipulation exists, but if you want to be on the leadership Board you have to subscribe to the By Laws of the Charter which hold that you can't be known as someone shacking up with anyone, or engaged in regular sex or even irregular sex if you are not married. They believe chastity is a doable virtue. It's part of a religious creed.
La Rasa can have only Hispanics as leaders, Balsa can have only blacks, the Pro Life groups aren't going to put someone who works at Planned Parenthood on their board, and the Pro-Choicers aren't going to put a "feminist for Life" on their board. No one challenges that- that's what makes the identity of the organization coherent. The university has an interest in promoting the 'marketplace of ideas' that promote people making informed choices. CLS did something different though. They admitted their exclusion and exclusivity policy.
So who in the world is most upset about this? CLS and the school had a show down when CLS refused to affirm that it was compliant with the school's anti-discrimination policy and became a focal point in the culture war in a state that has swung back and forth on gay marriage laws and referenda. The current state of the law in California is that Gay marriage is not allowed/legal, thus the CLS policy effectively discriminates against any active homosexuals for leadership positions. This is the same battle raging through the Christian world now tearing the Episcopal communion in two, and splitting the Presbyterian leadership.
Here is the question in this context and why it has Constitutional import.
On the one hand (as they are fond of saying in law school) you have the US Constitution's First Amendment Freedom of Association, Assembly, and Speech, with a strong Non-Establishment of Religion statement- coupled with the "Free Exercise" clause. Time to resurrect the Free Exercise clause.
On the other hand you have a valid government interest in equality generally, Equal Protection principles, non-discrimination against anyone for any reason at a school that is publicly funded. The student activities fund is the government funding at issue. The school revoked CLS' eligibility for funding when it said it's Charter/By-laws were in fact discriminatory -against those unchaste, fornicating, adulterers, and people engaging in sodomy or homosexual activity for leadership positions.
Is there something else at play in this clash of the titans? The people most angry about this, appear to be the gay rights community- although one gay organization filed I believe an Amicus in support of CLS because they Gay law students group probably don't want to have to admit rabid gay-bashers on their Board either. Each of the campus orgs has an exclusivity element in practice.
Here is the question I hope gets asked: What is a 'Religion' for purposes of the Establishment clause? How 'organized' does it have to be? It is that they can identify belief constructs? The gay rights people have a set of belief constructs- you can isolate what they are regardless of whether they are codified anywhere. They consist of the "I am what I feel like and have a right to whatever I feel like sexually outside any external moral constraint construct" "my body my business" "I was born this way" etc. Do they have to have a central leadership? Jewish people don't have one main pope figure-but lots of "rabbis"- gay rights groups have leadership, like the Human Rights watch groups promoting gay rights as human rights.
What is the difference between ideology and religion for purposes of protection under the Establishment clause? Some gay rights rhetoric has cult-like zeal in it's self promotion. The people who hold that gay rights are human rights and analogous to racial equality or gender equality hold that view as a religious tenet and foundational faith principle- others quite disagree.
Aren't we really talking about competing religions, competing for government funds? The school wants to discriminate against a religion that discriminates against unchaste people. Isn't the view that unchaste people shouldn't be discriminated against essentially a religious view stemming from a belief construct that considers unchastity something worthy of equal protection status?
The law in California is that gay marriage is not legally recognized (unless it took place before the law changed.) What is the government's interest in promoting a policy that runs counter to it's legislative intent by undermining a religious org that supports the law of the State in this regard and only giving funding to orgs that hold the opposite of what the law states?
I confess that here I hope that on public policy grounds CLS wins- you probably gathered.
I don't think all Christians are nice, and all their leadership isn't always kind, intelligent or even Christian. I have seen some of the more vicious insane aspects of exclusionary religious practices and been hurt and offended by them. But the point is that the US Constitution can't protect one religion over another without running afoul of the Establishment Clause, and it cannot give funds just to one side of the debate to the impingement of another's Free Exercise of it's religious principles- which Hastings is trying to do by taking away funding and other perks of an on campus organization that has a policy it disagrees with.
There is nothing stopping anyone from forming a Log Cabin Christian Legal Society, or a Gay Jewish Legal League or a Transgender Rustafarian Legal Clinic- and all these orgs should benefit from the marketplace of ideas supported by the student activities funding. The Christian Legal Society has an idea of what "Christian" means to them, and they are entitled to it.
It's a Free Country.