Closing a Discriminatory Loophole

By Advocate Contributors

Originally published on Advocate.com June 28 2010 2:40 PM ET

In a 5-4 decision authored by Justice Ruth Bader Ginsburg, the U.S. Supreme Court on Monday rejected a challenge to the University of California Hastings College of the Law’s policy requiring all funded student groups to be open to all students. Hastings’ nondiscrimination policy was challenged by the Christian Legal Society, which argued that the policy violated its right to freedom of association.

In Christian Legal Society v. Martinez, the court held that CLS was not seeking equal treatment but rather “special dispensation” to violate a neutral, across-the-board rule that applied to all other funded student groups. Justice Ginsberg stressed that, “In requiring CLS — in common with all other student organizations — to choose between welcoming all students and forgoing the benefits of official recognition, . . . Hastings did not transgress constitutional limitations. CLS ... seeks not parity with other organizations, but a preferential exemption from Hastings’ policy.”

The court affirmed that although the government cannot directly restrict freedom of speech or association unless it has a compelling reason to do so, the government has much more latitude when it is “dangling the carrot of subsidy, not wielding the stick of prohibition.”

In practice this means that public universities and other government entities can require groups that receive public funding to comply with viewpoint-neutral nondiscrimination policies. In this case, as the court noted, “the all-comers policy ensures that no Hastings student is forced to fund a group that would reject her as a member.”

The immediate impact of the court’s decision is clear. Public colleges now have the right to require registered student organizations to accept all students as members and to prohibit them from discriminating based on status or belief. Colleges can require official student groups, religious or otherwise, to open their membership to everyone, including LGBT people, people of color, women, and people with disabilities.

The decision has even more important implications for LGBT rights,
however. The court’s analysis strongly supports the position that when
the government provides funding to private groups, it can require that
the recipient agree not to discriminate against LGBT people. This is
significant because for years, faith-based groups providing purely
secular social services funded by government contracts or grants have
maintained that they have a right to discriminate against LGBT people
despite receiving public funds. The court’s decision suggests that
faith-based grant recipients have no right to a special exemption from
nondiscrimination requirements.

Another aspect of the court’s decision is also likely to have an impact in a wide variety of LGBT rights cases. The court rejected CLS’s argument that it wasn’t discriminating on the basis of “sexual orientation” but was simply enforcing its view that sexual conduct should occur only in a marriage of two different-sex partners. This status-conduct distinction has been used for years by antigay forces to claim that laws and policies punishing same-sex conduct do not discriminate against gay people. The Supreme Court rejected the status-conduct distinction in 2003 when it invalidated a state sodomy law in Lawrence v. Texas, and it did so again in Monday’s opinion. The court’s decision will provide strong ammunition in challenges to laws that claim to regulate conduct but in fact discriminate against LGBT people, such as the military’s “don’t ask, don’t tell” policy.

Monday’s decision is a serious defeat for antigay groups that have been working aggressively to establish the radical proposition that antidiscrimination laws—particularly those that include sexual orientation — violate the First Amendment. At the same time, antigay groups have mounted an aggressive propaganda campaign, falsely claiming that basic equality protections pose a threat to freedom of speech and religion. The court’s holding Monday will help put a stop to those efforts to roll back crucial antidiscrimination protections for LGBT people.