Can a nondiscrimination policy be discriminatory?

That question, bordering on legal Zen, will be before the Supreme Court on Monday when the justices hear oral arguments in a case brought by Christian law students at a public university in California. The students found themselves on the wrong side of a nondiscrimination policy when they tried to restrict their organization's leadership to students who adhere to their values. What the Christian Legal Society (CLS) viewed as central to its beliefs the Hastings College of the Law saw as discrimination against non-Christians, homosexuals and others.

The case, Christian Legal Society v. Martinez, has the potential to resolve a long-standing conflict between two of the most cherished American traditions: equality and nondiscrimination on one hand and the free exercise of religion on the other. The United States has taken great strides in recent years to protect people from discrimination -- including hate speech, unfair hiring practices and unequal treatment under the law. But to some, such gains in equality have come at a price. Religious groups that discriminate -- confining their membership to the faithful and those who share their views -- say they are being penalized.

This specific controversy began at Hastings, part of the University of California, when CLS members asked to become a registered student organization. With that designation, the group could apply for certain funding, send mass e-mails to the student body and participate in an activities fair, among other perks. Hastings said no. The school concluded that because the CLS bylaws barred non-Christians, gays and non-celibate students from serving as officers or voting members, the group violated the school's ban on discrimination "on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation." The CLS could still meet on campus but could not be a registered club unless it opened its membership to all, even those who didn't subscribe to its beliefs. The group challenged the school, and lower courts supported the Hastings policy as a neutral rule applying equally to all groups.

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