Battling Exclusion

Today the U.S. Supreme Court will hear arguments in a case that may have profound implications for the future of antidiscrimination policies on college campuses. In Christian Legal Society v. Martinez, the court will consider whether a public law school can limit official recognition and eligibility for school funding to student groups that are open to all students. This case arose when the Christian Legal Society sued Hastings Law School in San Francisco for enforcing such an "all-comers" policy, claiming that the policy violated the group's First Amendment right to exclude students who are gay or non-Christian.

Although most media have reported this case as a stereotypical clash between LGBT rights and religious freedom, the truth is that much more is at stake. At its core this is not a case about gay rights, and it's not about the rights of believers to practice their religion. The real question before the court is whether a student organization has a constitutional right to obtain public funds and other government-provided benefits while reserving the right to turn away members on the basis of race, sex, sexual orientation, or any other factor.

If the Supreme Court rules in favor of the Christian Legal Society, then any student group, whether religious or not, would have a First Amendment right to obtain funding, technical assistance, and other subsidies from a public university -- even if the student group engages in the most blatant and pernicious forms of discrimination. A student white supremacist group would have a constitutional right to obtain public money while maintaining a racially discriminatory membership policy. A student group that wanted to exclude women from leadership positions likewise would be entitled to receive public funds. Public universities would be required to support -- and fund -- private student groups that wish to practice the very forms of discrimination that the university itself is legally forbidden to promote.

It's not hard to see the direct impact that such a ruling would have on college campuses. Colleges would be unable to enforce even the most basic antidiscrimination protections against student organizations. Faced with a constitutional mandate to fund student groups that discriminate on the basis of race, sex, or sexual orientation, many colleges may feel that they have no choice but to end all financial support and other assistance for student clubs and organizations. Ironically, the ultimate result of CLS's claim that freedom of speech gives it a right to a public subsidy may be the end of official school support and funding for any student activities. That would hardly be a victory for free speech and robust debate on campus.

A ruling in favor of CLS could cause ripples outside the university setting as well. Most states have laws that prohibit the distribution of state funds to organizations that discriminate on the basis of race, sex, or other factors. Depending on the court's reasoning, its decision may call the validity of those laws into question.

A ruling for CLS also may embolden supporters of public funding for religious social service organizations that maintain discriminatory practices. In a highly controversial and much-criticized 2007 memorandum, President George W. Bush's Department of Justice concluded that a faith-based recipient of a government grant was entitled to an exemption from employment nondiscrimination requirements that applied to other recipients of the grants. The Supreme Court's decision could lend support to those who contend that faith-based groups should be permitted to discriminate on the basis of religion or sexual orientation, even when they are providing purely secular, nonreligious social services that are funded by the government.

Despite CLS's effort to paint itself as an oppressed victim of antireligious bias and campus political correctness, it's clear that this Supreme Court case represents a subtle but insidious attack on a half-century of progress on civil rights. Under the guise of religious freedom, CLS and its supporters are trying to chip away at laws that prevent public resources from being used to support private discrimination. Let's hope the court doesn't take the bait.