Freedom to Discriminate

The Supreme Court is hearing a case today, Christian Legal Society v. Martinez, that comes from California. As described by NPR,

The University of California's Hastings College of the Law in San Francisco has for 20 years had what it calls an all-comers policy, under which school-subsidized student groups must admit any student who wishes to join.

In 2004, the Christian Legal Society chapter on campus changed its bylaws to exclude gays and lesbians from membership. That meant the group was no longer entitled to a subsidy and preferred use of campus facilities. The group went to court claiming that the school's rule violated its constitutional right to freedom of association and speech.

Now, this makes no sense to me. They have complete right to associate and speak as they choose. They just are not entitled to use the money of other students to do it, if those students are excluded. (And note that they deliberately changed their bylaws in 2004 to start this skirmish). They knew the rules, they stipulate to that, and yet they deliberately set about to challenge them.

CLS lawyer Michael McConnell opened by telling the court that Hastings' all-comers policy is a "frontal assault on freedom of association" and "the right to form around shared beliefs."

Justice Sonia Sotomayor asked: So what if a group "wanted to exclude all black people, all women, all handicapped persons?" Are you saying the school would have to "give it funds and otherwise lend it space?"

"Not at all," McConnell responded. There is a difference between discrimination based on belief and discrimination based on status, he said. "We have only challenged the beliefs, not status."

Justice John Paul Stevens followed up: "What if the belief is that African-Americans are inferior?"

If belief is the basis for exclusion, then that is permissible, said McConnell. But exclusion based on status is not.

Got that? So , as one author at Daily Kos put it, if the Board of Education BELIEVED earnestly that Brown was inferior, that would make public school discrimination okay?

This isn't about GLBT rights. This is about the policy of exclusion, paid for by the public, and justified by religious excuses. It is all part of the meme that conservatives Christians are an oppressed minority, and that somehow acknowledging other people's rights impinges upon theirs.

As USA TODAY says in a reasonable OpEd,

To be sure, any student who agrees with such faith principles should be able to join such a group, and the group should have an absolute right to recruit members and be active on campus. The tougher question, however, is whether an institution funded with taxpayer dollars must extend formal recognition and benefits to a religious group that discriminates against gay men and lesbians, in accordance with the beliefs of many American churches.

The answer should be that no religious group has a claim on public support — just the right to practice its beliefs without interference.....

Hastings didn't seek to dictate the Christian group's rules, just to maintain its standards for receiving the benefits that official recognition bestows.....

Although student groups do lose out if they can't get formal recognition and benefits, those aren't constitutional rights. Hastings and other schools should bend over backward to allow students to practice their religion freely, but without putting the school or taxpayers who fund it in the awkward position of endorsing discrimination.

(my emphases)

Unfortunately, with the current makeup of the SCOTUS, I have no confidence that the court will uphold the rights of unpopular minorities. Under the Roberts court, civil rights only apply to Christian Conservatives, and corporations. And abusers making animal torture videos.