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Noel Gordon: Supreme misstep

BY NOEL GORDON

Published July 4, 2010

It seems as though everyone has been so wrapped up in Solicitor General Elena Kagan’s judicial confirmation hearings that they’ve unintentionally turned a blind eye to the rather explosive decisions recently handed down by the nine justices already sitting on the bench.

Over the course of a single month, the Supreme Court incorporated the right to keep and bear arms into the 14th Amendment, reworked the very fabric of the Miranda warning and affirmed a ban on soft money contributions to political campaigns. Given the rather ideologically partisan nature of the Supreme Court nowadays, two out of three correctly decided cases isn’t that bad of an outcome. And even though I personally would’ve left Miranda alone, the decision in that case didn’t trouble me nearly as much as the one in Christian Legal Society v. Martinez.

I have a great amount of respect for the Supreme Court, and that hasn’t changed — even when Justice Scalia writes dissents that make my blood boil. I readily admit that I have little understanding of the complex inner workings of our legal system or the various approaches to interpreting the Constitution. But I don’t think that a lack of experience or rigorous study necessarily invalidates conclusions that I reach that are different from the High Court’s.

That said, the Christian Legal Society at the University of California Hastings Law School allowed all students to attend its meetings, but they required that those interested in voting or running for office sign a statement of faith affirming their commitment to Judeo-Christian values. Incidentally, gay and lesbian students that had been attending CLS meetings were not allowed to take part in these activities since Holy Scripture designates homosexuality a sin. This eligibility requirement caused some students to argue that the CLS was in violation of the public university’s antidiscrimination policy.

In a 5-4 decision, the Supreme Court narrowly held that a law school can legally deny recognition and funding to a Christian student group that won't permit homosexual students from being a part of the organization. Justice John Paul Stevens wrote, "Other groups may exclude or mistreat Jews, blacks and women — or those who do not share their contempt for Jews, blacks and women. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities.”

However, I disagree with the Supreme Court decision for two main reasons.

First, the Christian Legal Society should not have been denied recognition by the University of California simply because it required an affirmation of faith from those interested in taking a more active role in the group. I don’t find such a request to be that unreasonable, especially considering that the requirement was not a condition for general membership. I think members of the CLS had the same rationale the Supreme Court did when it held in Boy Scouts of America v. Dale that a private organization can exclude a person from membership when "the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints." I think senior members probably thought that having an officer whose lifestyle did not align with Holy Scriptures would have significantly impacted their ability to effectively advocate their viewpoints and beliefs.

Second, and more importantly, the Christian Legal Society should not have been denied funding. Hastings claimed that it withheld money from the CLS because it believed the group was in violation of its anti-discrimination policy and was therefore ineligible to receive said funding. But I reject Hastings' liberal definition of discrimination and feel as though the Christian Legal Society’s actions should not have fallen under this rather broadly construed category. In Christian Legal Society v. Walker, the Seventh Circuit Court of Appeals held that “traditional non-discrimination policy may not be applied to religious groups who require a statement of faith from members.”

For some reason, the Supreme Court chose to ignore this precedent and allowed the Hastings policy to stand. But the fact of the matter remains that students from all backgrounds benefited from the Christian Legal Society and its services. CLS served as an invaluable resource for students that identified as part of a Judeo-Christian faith, and any student organization that provides a service that benefits a significant portion of the student populace should be funded, lest the state have a compelling reason not to do so. And in this case, the state did not.

Noel Gordon can be reached at noelaug@umich.edu.


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