The First Amendment and Hastings Law School

I had lunch with Paul Gullixson, my friend and fellow church member who is editorial page editor for the Santa Rosa Press Democrat. Since Paul is something of an expert on the First Amendment, I asked him about the Supreme Court’s decision regarding the Hastings Law School. The court ruled the school is justified in limiting official recognition (and subsidization) to student clubs that accept any and all. The school had dropped recognition of their chapter of the Christian Legal Society after the club adopted a constitution requiring members to be orthodox believers, and not to be practicing homosexuals. The club then sued the school, and the case was appealed all the way to the Supreme Court, where the club lost.

The case walked a fine line. The school wasn’t barring the club—which I think would be unconstitutional discrimination—but saying it didn’t deserve a subsidy. Must a state school subsidize all clubs if it subsidizes any club? The court decided that the school acted within its rights in choosing to support only clubs that are open to anyone.

I’m cautiously thinking that the court got it right. I don’t think a school should be required to subsidize a Wicca club that is only open to people with tattoos, or an atheists’ club that requires members to swear there is no God. I’ll grant you that the school probably targeted a Christian club because of what they see as its anti-gay bias. I think the school is wrong about that. But I think—cautiously—that they pursued their objectives in a legally acceptable way.

I’m not sure why the CLS decided to add those stipulations to its constitution, but it looks as though they were begging for a fight. Couldn’t they have achieved their objectives—presumably preserving the Christian character of the club—in other ways?

Whatever their motives, the result is likely to be used unfairly. Paul reminded me that most people—including many in positions of responsibility—have no idea how to apply the First Amendment. He told me of a reader who insisted, in all seriousness, that a school field trip to one of the California missions was a violation of the separation of church and state. I told him about a middle school that chose “Imagine” as its official school song. The court may have decided the law correctly, but the precedent will encourage all kinds of illegitimate discrimination against religion.

And that’s one of the dilemmas in making a public fight. When you lose a narrow decision, the results reverberate widely.

p.s. Gullixson notes that “the court upheld the school’s policy….but it did not rule on the Christian Legal Society’s claim that the school enforced its rules selectively. That issue was returned to an appeals court. In other words, they may have lost the battle but still could win the war – over being treated fairly and equitably.”

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