The case of Christian Legal Society v. Martinez,  which will be argued before the Supreme Court today, is one of the most important debates about student rights at public colleges. The Christian Legal Society (CLS) is suing the University of California's Hastings College of Law because the group claims a religious exemption from the college's nondiscrimination rules.
At first glance, it may seem appealing to allow religious student groups to set religious rules for their leaders. But the practical effect of embracing religious oaths for student groups is a violation of individual rights, an attack on student democracy, and a potential increase in administrative power.
This dispute has its roots in the mid-1990s, when fundamentalist groups such as CLS sought to expand their influence on college campuses but feared that Christian students were becoming too tolerant of homosexuality. In 2004, CLS compelled all of its student chapters to adopt a strict Statement of Faith  and standards of sexual morality for leaders, which led to the current litigation.
The First Amendment's rights to free association and free expression are paramount in particular at an institution of higher education. However, the Supreme Court has never ruled that student groups at public colleges must be given special rights due to their religious orthodoxy, and can ignore the universal rules applied to all student groups in a viewpoint-neutral manner.
Religious groups must have the freedom to express their views, even repulsive ones like homophobia. No one at Hastings ever tried to punish anyone for being in the CLS, or barred them from promoting their views. But when the society and other fundamentalist groups demand that universities violate antidiscrimination policies and the individual First Amendment rights of their students to accommodate this bigotry, they go too far.
Who Becomes the Enforcer?
Investigating the religious beliefs, moral values, and sexual activities of students is not something that any university should be doing. But if student groups are allowed to impose ideological oaths and religious tests for membership or leadership, universities are placed in impossible situations where such inquiries will be made in their names.
The CLS defenders, which include a vast group of 22 amici briefs and 14 state attorneys general, are wrong when they cite the Supreme Court precedents for a “right to exclude.” These cases, such as Boy Scouts of America v. Dale, deal exclusively with private organizations, a term that cannot apply to student groups at public colleges, which operate under the umbrella of public colleges -- receiving their funds and using their facilities.
This legal status is important because it means that there is no entity other than the administration that can adjudicate disputes over the meaning of a student group's bylaws. This ownership issue creates a fatal flaw in the CLS argument. Suppose the Supreme Court decides in favor of CLS and it receives recognition at your public college, and then it tries to kick out a member for being gay. Now think about what would occur if that student denies being gay. Do you want a public college – or a student organization acting in the college's name -- deciding whether a student is gay or not? Or whether he is a good Christian?
It is noteworthy that the plaintiffs' brief and the 22 briefs supporting it omit any discussion of exactly who shall be given the power to interpret and enforce the bylaws they deem essential to the existence of CLS at Hastings. But in such scenarios, student organizations or, in an extreme case, a college itself would be making such decisions.
The danger is even greater in this case because of the strict restrictions demanded by CLS. In order to be officers or voting members of CLS, students must sign the national CLS Statement of Faith: “Trusting in Jesus Christ as my Savior, I believe in: One God, eternally existent in three persons, Father, Son and Holy Spirit. God the Father Almighty, Maker of heaven and earth. The Deity of our Lord, Jesus Christ, God’s only Son, conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return. The presence and power of the Holy Spirit in the work of regeneration. The Bible as the inspired Word of God.” Virtually all of these statements present interpretative challenges. Does defining God as “maker of heaven and earth” require a belief in creationism over evolution? What does it mean to say that the Bible is “the inspired Word of God”?
But the Statement of Faith is not the only requirement for CLS leaders. The bylaws require that “Officers must exemplify the highest standards of morality as set forth in Scripture” in order “that their profession of Christian faith is credible” and must abstain from “ 'acts of the sinful nature,’ including those in Galatians 5:19-21; Exodus 20; Matthew 15:19; Romans 1:27; 1 Corinthians 6:9-10.” Envy, rage, hatred, jealousy, selfish ambitions, discord, dissensions, factions, drunkenness, greed, coveting, slander, evil thoughts, and violating the Sabbath are all prohibited by these Biblical passages.
Imagine for a minute that the CLS believes that a member was violating the statement by believing in witchcraft. She denies it. Could CLS demand that Hastings hold a witchcraft hearing?
Imagine if the leaders of a Christian Legal Society are irritating administrators with public protests against abortion rights. These administrators could retaliate by removing the student leaders for violating their own statement of faith, by accusing them of being “angry,” which is contrary to the CLS bylaws. It would be simple to accuse the leaders of some religious heresy, put them through an ideological trial, arbitrarily decree them guilty, and then remove them. So allowing religious tests in the bylaws of student groups actually increases the threat of administrative abuse because it gives the administration the power to determine the leadership of student groups. Administrators at public colleges will certainly try not to get involved in theological debates, but individual students could file complaints that CLS leaders have felt envy or violated the Sabbath, and demand that administrators (or courts) remove them from office.
CLS and its supporters argues that the university’s rules could force it to accept members who disagree with its mission. However, that’s essential in order to protect every student group.
It may seem strange, at first, to say that an organization might be compelled to accept leaders who appear to contradict its goals. But the phrase “compelled to accept” is inaccurate. The real meaning of an “all-comers” policy is that students are “free to elect.” No student organization at Hastings is compelled by the administration to accept anyone as their leader, because the administration does not pick the leaders. The members of expressive organizations are completely free to make belief-based choices in choosing their leaders.
The CLS brief claims that under an “all-comers” policy, “it would make it impossible to have … a vegetarian club (whose menus could be voted upon by carnivores)…” A vegetarian club can exist with carnivore members, and it should not ban meat-eaters in its bylaws. If it did, exactly what would that mean? Would a person who accidentally ingested meat be banned from the group? Can you eat a steak dinner every week but repent before dessert and become a vegetarian again? Could a vegan proclaim that non-vegan vegetarians are actually meat-eaters? Of course, these are all legitimate arguments for a vegetarian club to undertake when electing its leaders. However, by creating a constitutional ban on meat-eaters in its bylaws that overrules the democratic will of its members, the vegetarian club would require the administration (presumably a bunch of carnivores) to make the decisions about the core meaning of vegetarianism, decisions that instead should be made by the student members.
What CLS demands in this case is that administrators overrule student decisions about selecting their leaders. According to the Petitioners, “CLS is vulnerable to sabotage or takeover by a relative handful of hostile fellow students, who need only show up at a meeting en masse and exercise their rights to join and vote.”(Petitioner's Brief at 33) But hostile takeovers of student organizations are extraordinarily rare on public college campuses. There is not a single recorded case in American history where a roving gang of campus atheists have taken over a religious student group. The plaintiff's brief and all 22 briefs of amici curiae supporting the plaintiffs combined identify only two allegations of a campus group hijacking. In a 1993 case at the University of Nebraska, the College Republicans attempted to take over the Young Democrats, but there is no evidence in the record that they were successful. In a 2007 incident at Central Michigan University, a student on a Facebook page suggested (but apparently never took any action toward) a hostile takeover of a student organization.
The Supreme Court must not impose a remedy for a problem that, according to the written record of this case, does not appear to exist.
The nondiscrimination rules required by Hastings do not limit the Constitutional rights of CLS students. These rules protect the rights of these students by allowing members to select their leaders without interference from national organizations.
The demands of CLS run the risk of creating enormous governmental intervention and control over the religious views of students, a power that Hastings does not wish to have, and a power that it cannot constitutionally exercise. If the administrators of a public college evaluate the religious views of students and make theological decisions, they would be guilty of violating the long-established separation of church and state as well as the freedom of religious expression of students. For a public university to enforce the demands of external religious groups to restrict the rights of conscience of individual students is a clear violation of the First Amendment.