The abovementioned case was actually decided in 2010 by the Supreme Court, but before I started this blog, which is why it hasn’t been covered. In light of the new Vanderbilt case, it seems appropriate to bring up last year’s case. Here are some links that discuss the case—one from one of the legal groups arguing for the Christian Legal Society (CLS) and one from a neutral site. Below are comments I wrote in April 2010 to some friends based on similar links describing the CLS planned angle of attack before the case was decided. I’m no lawyer, but this is my armchair analysis for what it’s worth.
<I am concerned that the arguments presented by CLS are not convincing compared to Hastings arguments. By making an analogy to an environmental group instead of, say, an LGBT group, they compare apples and oranges. They need to find a group that identifies with a protected class and see if they hold to the policy. Will the atheist group let Christians run for office? {Note: in at least one of the above links, apparently the school admits this is the effect of the policy.} Would Hastings allow a heterosexual advocacy group become registered? Hastings argues by implication that groups are self selecting, so theoretically no one who disagreed with the CLS message would get involved. However, infiltration cannot be a priori ignored as a possibility, so what guarantees does Hastings offer that CLS can protect itself from such infiltrations apart from its bylaws?
If Hastings wishes to encourage diversity and tolerance on campus with any kind of benefits offered to registered groups, then by definition it must allow groups to register that hold exclusive views, and if someone is upset by a group's exclusivity then they are free to register a group with an opposing view and see how it survives in the marketplace of ideas on campus. If Hastings is not willing to do that, then it should abolish the policy of registering any group and allow all groups who want to use facilities to do so equally with no differentiation. Hastings is trying to have it both ways, and it can't. In other words, Hastings argues that it is being neutral--it isn't. It is insisting that all groups hold to its idea of neutrality rather than neutrally following its own rules not to discriminate.
Of course, their response to this argument is they desire a campus that is free from any kind of discrimination and therefore, theoretically free from offensive views or anything that would create a "hostile learning or work environment." This is at odds with the whole idea of education and especially law, where you are teaching folks to examine the diversity of views and where they collide and how to resolve those conflicts civilly. If you insist on removing the possibility of being offended, then you lose the skill of resolving conflict and evaluating ideas on their merits.
The problem here is that they subscribe to the idea that all views are equally meritorious or valid, which is logically inconsistent with how law is actually practiced. This case in itself shows the inconsistency where Hastings claims that the CLS view that their leadership should hold a specific set of values is less valid than the idea that anyone should have the freedom to lead any group, even if they are fundamentally opposed to the founding and working principles that define that group's existence. Therefore, they are discriminating against an exclusive group, which happens to have a protected status from discrimination.
Furthermore, the Hastings policy (from the Pew article) is “’shall not discriminate unlawfully on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.’" That implies that if the CLS can discriminate lawfully, then the discrimination is allowed. Given the First Amendment's rights of expressive association and religion, then a Christian group can lawfully discriminate and is therefore not in violation of the Hastings policy.
What about any Islamic Legal Societies? The LGBT group probably allows heterosexuals in and even in leadership, but what if a bunch of homophobes infiltrated and outnumbered the original membership and advocated for restrictions on LBGT freedoms? I would imagine that their bylaws say that heterosexuals are allowed, but that since the purpose of the group is to advocate for LGBT expression, heterosexuals who disagree with that purpose would not be welcome, so a membership requirement would likely be that a prospective member must ascribe to the idea that advocating for LGBT rights is ok. That is a form of discrimination as well. Is it legal?
What makes CLS different is that it does not merely advocate for "Christian rights," it also serves as an outlet for Christian fellowship, prayer and teaching/study. Its purpose is to live up to its name of "being like Christ" so you expect Christian activity to occur. To return to the LGBT example, for it to be parallel in this case, there is the implication in the name of the group that sexual activity occurs in the group. Chances are that this does not occur because there are laws/policies against such behaviour, so they just work on advocacy as their purpose.
This is really where the issue gets thorny. Are groups allowed to practice what they advocate? What determines when/where such practice is allowed? It gets into the question of what is identity. Take for example the Black Legal Society (or whatever it’s called), the Christian Legal Society and the LGBT Legal Society. All are centered around a source of identity--one is based on race, one is based on belief and one is based on lifestyle (regardless of whether you believe it to be a choice or genetic). In a postmodern, multicultural, tolerant society all three are legitimate expressions of identity.
If tolerance is more important than the First Amendment, then there is no legal basis for CLS to make its desired restrictions. What constitutes "Black practice/activity?" Not much that I'm aware of, so they advocate for black equality in the public forum.
What constitutes LGBT practice? Acts that are private, but that have a public front/implication. Since they can't legally do the core acts in their public meetings, the group's purpose is advocacy.
Now we come to the Christians. There are a number of practices (prayer, Bible Study, communion, etc), and while these are not illegal, they are offensive in the public forum to some folks, much like sexual acts are offensive in a public forum to some folks. Therefore, from a secular perspective, CLS should be strictly an advocacy group rather than a practice group.
Since a non-Christian or a non-celebate non-married person can still advocate for "Christian rights" (just as a Caucasian can advocate for black civil rights and a heterosexual can advocate for LGBT civil rights) there is no reason, using this logic, for them to have such restrictions on their leadership.
THEREFORE, the key to winning the case seems to be in showing that the First Amendment is a higher law than the cultural value of tolerance. Hastings is trying to find their version of tolerance in the First Amendment, and CLS must show that it isn't there in order to win the legal argument. All of this circles up to my original arguments, but this is my very poor, very quick attempt to explain the philosophical underpinnings/perspectives the two sides are bringing into the argument, so they can be exposed and evaluated before you can even get to the specific issues of the case.
Again, I'm not a lawyer, but those are my thoughts based on the articles as presented. Feedback is appreciated.>
That’s what I wrote a year and a half ago. While I still find the gist of that argument reasonable, it seems that starting philosophically with the question of the purpose of a non-discrimination policy is fundamental. In that vein, my opening questions from Monday’s post seem particularly relevant in establishing a framework for discussion/legal argument.
SDG
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