Court Hears Two Free Speech Cases

David, you are absolutely correct. The most important issue in this case is funding. CLA has already stipulated (admitted as fact) that Hastings treats it exactly the same as every other group on campus that receives or seeks to receive university (public) funding. Hastings has admitted that they cannot stop CLA from refusing to admit gay members if the group does not receive public money. So public funding is the issue. The BSA case does not really support CLA, because the Boy Scouts did not claim a right to receive public funding.

J. Claremce: You're right the Christian group DOES have a right to exclude anyone they wish. They do not, however, have a right to receive any money from the school. Who receives money from the school is completely up to the school.

@Joseph, The 2000 opinion in BSA v. Dale in favor of the BSA did not center on whether or not it was a private or public group. It was a given that the BSA was private, and it wouldn't be a case if the BSA was a public entity because NJ law stated that kind of discrimination was prohibited with anyway. Also, while CSA is also contesting having to accept everybody as a general member, your ROTC example compliments their case as colleges, much like the CSA, can take federal money (i.e. the subsidy) while subcutaneously being against a particular policy, in this case anti-discrimination. Reading some of the CSA brief today Hasting's has groups like a motorcycle group that clearly outlines specific expectations of its members, and it is recognized by the college with no trouble. Look, I think the issue over receiving a subsidy is a big one, but outside of that I don't think we should force one group to accept another if that harms that group's message.

@J Clarence: You are comparing apples to oranges. The Boy Scouts won their case because they proved they are a PRIVATE organization. The Court has not, however, accepted any argument that a PRIVATE organization is legally entitled to receive PUBLIC monies. In fact, the Court has held that US universities and colleges that accept federal money for research grants must allow US military recruiters and ROTC programs on campus, even when the school is not using the money for military-based research and the school itself has an anti-military stance.

Joe, Robert was correct in that the Boy Scout case is likely going to heavily weigh in on the court's decision here. The right to assemble and associate does not just mean the right to petitition and criticize the government, or in this case a government entity, but it also extends to the flip side of that ability which is the right to exclude individuals. The government cannot, and should not, force a group of people to stand for something that they do not. When coming to a decision in this case gay rights activists have to be willing to see beyond the immediate descrimination of gay people, and see a scenario in which homophobic and anti-gay students would be allowed to run and hold office in gay student groups. And Hasting's has prevented the operation of the group, Joe, that is why there is a court case. Also, Bob, don't be ridiculous: there are various other things would prevent such groups, not to mention the issue at the core here is the right to exclude individuals.

The right wing extremists on the US Supreme Court are in a bind. It would be their inclination to automatically back the anti-gay “Christian” group. But by doing so, the Court could end up setting a precedent that would not be to their liking. If schools are required to give financial support to each and every student group, think of some of the associations that might be formed, to the consternation of the Court: Pro Al-Qaeda groups, Campus Porn Clubs, The Campus Cannabis Society, etc. If these “Christians” wish to form a club that excludes everyone else, then let them spend their own money rather than demanding financial support from the State.

The issue in the "Christian" Legal Society v. Martinez case is whether a PUBLIC SCHOOL can deny SCHOOL FUNDS to a student group that has discriminatory practices in violation of the school's anti-discrimination policies. At no time has Hastings prevented the "Christian" Legal Society from meeting on-campus, so how is the "Christian" Legal Society's rights to freedom of assembly been breached? Further, at no time has Hastings prevented the formation & operation of the "Christian" Legal Society, so how has its freedom of speech rights been infringed? The "Christian" Legal Society has intimidated A LOT of law schools into defeat. Kudos to Hastings to standing up to them.

I think you both have missed the point. The actions of the school are not preventing the free expression of speech. The members of the christian group can assemble on campus and speak to their heart's desire. What the school is saying, however, is that all students pay the fees that are used to support student groups. Not all students are allowed to join the group. Exclusion is not about ability (it would make sense to prevent people who do not speak French to become leaders in the French club), but about a person's innate characteristics (being LGBT does not prevent a person for practicing law, and there is nothing in the US that could be described as christian law). So the position of the school seems to be that they will withhold formal recognition and student fees-based funding from a group that practices prejudice. This is not about preventing free speech, it is about not asking people who are being discriminated against to also fund that discrimination.

I agree with Claremce, and I believe the court's precedents in favor fo the Boy Scouts will influence a decision in favor of the school.

I have yet to hear any strong convincing argument on the side of the law school. It merely appears to be political correctness gone to the extreme. The student group is open to everybody, but under the group's right to freely assembly they restrict we can vote and take leadership positions. It sucks for the gay students in this situation, but as the WashPo and WSJ editorials pointed out last week, would we necessarily want the opposite where, for example, a bunch of anti-gay students can join the school's LGBT group and become voting members and undermine the group mission? Forcing a (Conservative) Christian group, or any group, to allow any and everyone to vote and take leadership positions undermine's the very nature and purpose of the group. Another thing to take into consideration is the fact that this Supreme Court has a tendency of using straight forward cases and writing opinions that have far reaching implications beyond the scope of the trial. This could back fire.