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Religious Freedom or Discrimination?
CLS v. Martinez Raises Questions about UGA’s Policy
Mar. 31, more than 60 University of Georgia
■ ■ law students gathered in a classroom during
JLX their lunch break to hear a debate between
two visiting law professors sponsored by two student organiza
tions, the American Constitution Society and the Federalist
Society. Tobias Wolff, from the University of Pennsylvania,
and Bruce Frohnen of Ohio Northern met to discuss the United
States Supreme Court's recent First Amendment decision,
Christian Legal Society v. Martinez, decided in June 2010. The
debate began cordially, each professor discussing his side of
the dispute. Soon, the conversation became heated and a few
voices, some even from the audience, were raised as tensions
grew over the delicate subject.
Why, exactly, did a scholarly debate between two law pro
fessors become contentious so quickly? The subject that stirred
so many otherwise calm-minded intellectuals into a frenzy:
religion.
In Martinez, the Christian Legal Society (CLS) applied for
Registered Student Organization (RSO) status at the University
of California at Hastings School of Law. UC Hastings required
that all student organizations adhere to a non-discrimination
policy that allowed for all students to become members or offi
cers of RSOs, regardless of race, color, religion, national origin,
ancestry, age, sex or sexual orientation.
The CLS constitution and bylaws included a "Statement
of Faith," requiring that members and officers conduct their
lives according to stated tenets of the Christian faith, which
included an exclusion of association with individuals who
engage in "unrepentant homosexual conduct."
UC Hastings denied CLS' application to become an RSO.
Although CLS acted as an independent organization and con
tinued with its activities through the school year, the orga
nization filed a lawsuit against the academic dean and other
school offirials, alleging that UC Hastings had violated its First
and Fourteenth Amendment rights of freedom of speech, free
dom of association and free exercise of religion.
The Supreme Court ruled in favor of UC Hastings, holding
that the school was a limited public forum and that non
discrimination was a reasonable, viewpoint-neutral condition
on RSO membership. The Court had previously explained in
Pleasant Grove City v. Summum that a limited public forum is
created when the government opens up property "limited to
use by certain groups or dedicated solely to the discussion
of certain subjects" where reasonable and viewpoint-neutral
restrictions on speech may be imposed. At the debate, Wolff
elaborated on the idea of the government restricting speech
in a limited public forum: "This is about whether the state can
have values that it enforces when it enforces its own institu
tions... Students must abide by a code of conduct that reflects
Hastings' values. Those values include treating all students as
welcome participants in student groups."
But is a requirement that all groups, including those with
religious affiliations, allow all students to participate as mem
bers or officers, regardless of whether their values and beliefs
are fundamentally different from that of the group's, truly
viewpoint-neutral?
At the beginning of his dissent in Martinez, Justice Samuel
Alito referenced Justice Oliver Wendell Holmes' dissent in a
1929 Supreme Court case, United States v. Schwimmer. "The
proudest boast of our free speech jurisprudence," Alito wrote,
"is that we protect the freedom to express 'the thought that
we hate.'" Alito points out that UC Hastings allows other stu
dent groups with political and social viewpoints to receive RSO
status, such as the pro-choice student group, and affords those
student groups access to university facilities, funding, use of
the school logo and other benefits.
"Martinez tells us that it is OK to ostracize an association
on account of its moral, religious views," Frohnen contended
at the UGA debate. "This case is about unpopular beliefs and
[the] power of government to silence them."
The Supreme Court narrowly decided Martinez in favor of
UC Hastings, by a 5-4 vote. With great legal minds so closely
divided on the issue of whether a non-discrimination policy
that requires student organizations to allow all students to
become members or officers is viewpoint-neutral or whether it
violates student rights to freedom of speech and assoriation,
are there better ways for universities to approach the issue?
[♦Martinez a case where
&
peoplejwith devout religious beliefs
are disadvantaged? \es; this also
happened when the Civil Rights Act
was passed.”
vv
\
The University of Georgia Center for Student Organizations
requires each organization to include a non-discrimination
clause in its constitution. Every student organization consti
tution must state: "Membership and all privileges, including
voting and officer positions, must be extended to all students
without regard to age, ethnirity, gender, disability, color,
national origin, race, religion, sexual orientation or veteran
status."
But Dr. Bill McDonald, Dean of Students at UGA, points out,
"About five years ago... the university recognized that some
religious organizations wanted to limit leadership to people
who held the same type of religious beliefs, so an exception
was added to the non-discrimination policy." The exception
states: "Religious student organizations will not be denied
registration solely because they limit membership or leadership
positions to students who share the same religious beliefs."
Would UC-Hastings' CLS fit into UGA's religious student
organization exception? It depends on whether the school
considered the requirement that officers do not associate with
homosexuals a religious belief.
Josh Podvin, director of UGA's Center for Student
Organizations, has been keeping up with the potential effects
of the Court's decision. "We sponsored a Webinar after the
Martinez case came out," he says. "We want to make sure that
UGA is up to standards." Podvin points out that UGA's policy
is different from the one evaluated in Martinez, since UGA
includes the religious exception. Asked if that would apply to
a group like CLS, he emphasized, 'The exception is more about
the right to assemble. Thankfully, we have not had any groups
with a statement of faith like CLS'. We will have to cross that
bridge when we get there, but I hope we never have to."
At the UGA debate, Frohnen claimed UC Hastings' decision
to deny CLS RSO status was about religion, and that the denial
did infringe on the group's First Amendment Free Exercise
right. Wolff countered that the decision had nothing to do with
religion, but had everything to do with the non-discrimination
policy: specifically, the requirement that CLS members and offi
cers could not condone association with homosexuals.
Is requiring a group of students who choose to discriminate
against homosexuals to allow all students to be members and
officers an infringement on their freedom to associate with
others with the same religious beliefs?
According to Wolff, "The state does not have to be neutral
on matters of values. For example, take the Civil Rights Act of
1964. Many individuals held religious beliefs that integration
was wrong. However, the stote has to be neutral on questions
of religion and not involved in official expressions of particular
beliefs in God. Is [Martinez] a case where people with devout
religious beliefs are disadvantaged? Yes; this also happened
when the Civil Rights Act was passed. The state cannot target
you because of your religious beliefs, but that was not the case
[in Martinez]. Hastings was applying a policy that had to apply
to everybody."
Frohnen rebutted that “[Martinez] is anti-religion. It's
impossible for the state to be neutral... religious beliefs are
excluded from the public square. A group can have moral views;
they just can't talk about where they come from because that
would be talking about that evil, religious stuff."
This was the point at which the debate became heated.
After a few moments of unrest, the discussion came back down
to a calmer level, but the tension between a student's right not
to be discriminated against and a student's right of assocTution
reverberated throughout the room.
The balance between a group's right to freely exercise cer
tain beliefs and the state's duty not to establish an official
religion continue to play tug-of-war not only in courtrooms,
but in universities and other public forums. For now, policies
such as the one at UC Hastings have won the day, but a case
like Martinez only opens the door for questions about other
non-discrimination policies, such as the one at UGA. In the
interest of protecting different sets of freedoms, let the debate
continue, heated or not.
Emma Hetherington
Republic
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