Members Only? Christian Legal Society's Desire to Discriminate at California Law School Sparks 'Culture War' Clash at Supreme Court

By Boston, Rob | Church & State, May 2010 | Go to article overview

Members Only? Christian Legal Society's Desire to Discriminate at California Law School Sparks 'Culture War' Clash at Supreme Court


Boston, Rob, Church & State


Under normal circumstances, the membership rules of the Christian Legal Society (CLS) chapter at Hastings College of the Law in California would hardly be a matter of widespread interest.

But the question of who may and may not join the CLS affiliate reached the Supreme Court last month, forcing the issue onto the national stage. Although it may seem an obscure question, Christian Legal Society v. Martinez could be a sleeper: It presents the court with an opportunity to address the legality of public funding of religious groups that openly discriminate on theological grounds; thus, it has the potential to affect the "faith-based" initiative and a host of issues related to tax funding of religion.

The case centers on a policy in place at Hastings, a San Francisco school that is part of the University of California system of higher education. Hastings requires all student groups that receive official recognition and funding from student activity fees to abide by a policy of non-discrimination. (See "The Battle of Hastings," February 2010 Church & State.)

Leaders of the CLS chapter are demanding the right to limit membership to Christians who agree with the group's creed and deny it to gays and non-Christians. When Hastings officials denied the club recognition, CLS enlisted the aid of a high-powered Religious Right legal group, the Alliance Defense Fund, and sued.

CLS lost in court twice, but last year the Supreme Court announced it would hear the case. Almost immediately, defenders of the church-state wall and wall bashers began squaring off.

Although the Martinez case lacks the emotional tug of other church-state issues such as battles over governmental displays of the Ten Commandments or the teaching of religion in public schools, Court watchers say the legal questions it presents are important.

"Any time the Supreme Court takes up a case that could affect tax funding of religion, we need to pay close attention," said Ayesha N. Khan, Americans United's legal director. "For many people, the right to support only the religion of their choosing -or support no religion at all - is central to the right of conscience.

"This case," continued Khan, "could chip away at that right."

To be sure, the situation in the Martinez case is not a perfect analogy to faith-based funding. The CLS chapter at Hastings seeks a slice of the student funding pie. This revenue stream, created by a mandatory fee imposed on students, is common at universities throughout the country, but it's not exactly the same as a tax.

If the court rules for CLS, it could do it in a narrow way that mainly affects student-activity-fee funding at public colleges. But a more sweeping ruling that lays down broad new rules for how and when government may steer tax aid to sectarian groups is certainly possible.

Religious Right legal organizations and their allies know this - and that's why they are paying so much attention to the Martinez case. These forces, determined to erode the church-state wall, are adept at pushing the boundaries.

If the conservative-leaning Roberts court rules their way, they'll undoubtedly use the precedent to argue that government has the right - or perhaps even an obligation - to fund religious groups even if they engage in flagrant forms of discrimination in hiring.

The impact of such a ruling could be immediate and staggering. Questions of religious discrimination in tax-funded programs have continued to dog the faith-based initiative. …

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