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
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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