Win for Anti-Bias Rules

Appeals court upholds right of a U. of California law school to deny recognition to Christian group that won't allow gay members.
March 18, 2009

A federal appeals court on Tuesday gave a major win to public universities and advocates for gay rights who have wanted to preserve in full the institutional anti-bias policies that bar discrimination based on sexual orientation.

The U.S. Court of Appeals for the Ninth Circuit ruled -- in a two-sentence decision -- that the Hastings College of Law of the University of California was within its rights to deny recognition to a branch of the Christian Legal Society. Hastings said that the student group's ban on members who engage in "unrepentant homosexual conduct" violated the law school's anti-bias policies. In turn, the Christian Legal Society argued that its First Amendment rights were being violated by the law school in that it was forcing the law students in the society to abandon their religious beliefs in return for recognition.

The appeals court's decision said simply this: "The parties stipulate that Hastings imposes an open membership rule on all student groups — all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable."

The court cited a ruling it issued last year upholding the right of a public school district in Washington State to deny recognition to a Bible study group whose members were required to hold certain beliefs. The student group sued, charging a denial of its religious rights. But the appeals court found that because the school district had blanket rules about discrimination -- and was not applying them in any different way to the Bible group -- the regulations were legitimate.

The Ninth Circuit's rulings -- in the Hastings case and the public school case -- may set the stage for the U.S. Supreme Court to consider the issues of public universities' right to bar discrimination and religious students' right to practice their beliefs. Advocates for gay rights have had high hopes for the Hastings case -- especially since they won the first round with a federal judge's ruling in 2006 in favor of the law school. Other courts have ruled in favor of the Christian groups on other campuses. In a case that is cited by supporters of the Christian Legal Society, the U.S. Court of Appeals for the Seventh Circuit in 2005 ordered Southern Illinois University to recognize a chapter of the Christian Legal Society.

Based on the Southern Illinois case and other rulings involving Christian fraternities seeking recognition, several public universities have settled lawsuits (or avoided them) by exempting religious groups from some parts of anti-bias policies. As a result, the decision by Hastings to fight to defend its policies was praised by gay rights groups. Supporters of anti-bias policies have noted that being denied recognition may limit some access to college funds, but typically does not stop groups from organizing or meeting.

Some legal experts have predicted that this issue would reach the Supreme Court as soon as appeals courts started to rule in different ways on the issue -- a milestone that may be reached with the Ninth Circuit's decision. The Supreme Court may also end up addressing these issues in the Washington State school case, Truth v. Kent School District. The Alliance Defense Fund, which supports Christian groups seeking recognition in such cases, last week asked the Supreme Court to hear an appeal of the school case.

In comments to the San Francisco Chronicle, lawyers on both sides of the Hastings case seemed determined to carry on the fight. Jeremy Tedesco of the Alliance Defense Fund, told the newspaper that the decision would "require religious organizations to include people in their groups who disagree with what the religious groups believe," calling such a move "a violation of the First Amendment, free speech and freedom of religion."

But Ethan Schulman, a lawyer for Hastings, said that the Christian Legal Society was trying to "carve a gaping loophole in those nondiscrimination policies" and "force the law school to subsidize discriminatory groups."


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