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I 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 salon 312 E. BROAD ST. • 3RD FLOOR • 7o6.20B.5222 • FRIGIDASRE BUILDING • ENTRANCE ON JACKSON ST. • WWW.REPUBLICSALON.COM I* 8 FLAGPOLE.COM MAY 25,2011
