By Shannon Price Minter and Christopher F. Stoll
December 21, 2009 | 4:51 p.m.
We represent Outlaw, the UC Hastings College of the Law's lesbian, gay, bisexual and transgender students group, in the case brought against Hastings by the Christian Legal Society (CLS). The Christian group argues that Hastings' nondiscrimination policy violates 1st Amendment rights to the extent that it prohibits officially recognized student groups from discriminating against prospective members on the basis of religion or sexual orientation. The Times' Dec. 16 editorial supporting CLS' case before the U.S. Supreme Court fails to grasp the implications of what a ruling in favor of the Christian group would mean. Stating the issues clearly and accurately is all the more important because this case has enormous implications for the future of anti-discrimination laws that reach far beyond the intersection of religion and LGBT rights.
The Times asserts that CLS has a strong argument that it is being targeted for its beliefs rather than its conduct. That is not the case. The Hastings policy does not restrict in any way the beliefs that an official student organization may espouse. All that the policy requires is that any officially recognized student group must be open and accessible to all students. The Women's Law Assn., for example, must admit men, which it does. Likewise, the Black Law Students Assn. admits white students, and Outlaw is open to heterosexual students.
The fact that Hastings' nondiscrimination policy applies equally to all clubs without regard to viewpoint or subject matter of the club also distinguishes it from the 1995 Supreme Court decision to which The Times' editorial refers. In that case, a public university declined to provide official recognition and resources to a student newspaper because the paper was written from a religious viewpoint. Hastings' policy does not prevent official student organizations from holding or expressing any view, religious or otherwise. A variety of religious groups have existed at Hastings for many years. All of them comply with the nondiscrimination policy -- except CLS.
Nothing about CLS' 1st Amendment freedom-of-association argument would limit which clubs could be exempt from Hastings' nondiscrimination policies. The 1st Amendment right CLS seeks would apply equally to a club that wished to discriminate for political or philosophical reasons, or simply out of animosity. To accept CLS' argument would mean, for example, that a white supremacist student organization would possess a constitutional right to obtain official recognition and eligibility for university funding while maintaining a membership policy that excludes African Americans, Jews and Roman Catholics. A ruling in CLS' favor could force universities to choose between being unable to enforce any sort of anti-discrimination rule against any student club or (more likely) ending all university support for any type of club. Is that what The Times wants?
Finally, as attorneys defending the rights of LGBT people nationally, we feel compelled to address The Times' contention that a group does not discriminate based on sexual orientation when it limits its membership to people who agree not to engage in same-sex relationships. This canard has been rejected by courts time and again, most famously by Justice Sandra Day O'Connor in her opinion in Lawrence vs. Texas, the 2003 case that ruled a law prohibiting sodomy only between same-sex partners was unconstitutional. She wrote: "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, [the] law is targeted at more than conduct. It is instead directed toward gay persons as a class."
We couldn't have put it better.
Shannon Price Minter is legal director for the National Center for Lesbian Rights. Christopher F. Stoll is the organization's senior pro-bono attorney.