McConnell Discusses Supreme Court Hearings

CLS v. Martinez might be the most important Supreme Court decisions in recent years. The case concerns discrimination against gays and lesbians by a Christian group called the Christian Legal Society (CLS) at the Hastings Law School in San Francisco. The group required that prospective members sign a document professing their Christian faith, with one clause stipulating that being a ‘practicing’ homosexual violates core tenets of Christianity – but that ‘repentant’ non-sexually active gay students could be eligible for membership.

CLS had its club status and its funding revoked in 2004 by the law school. CLS took its complaint to court, and CLS v. Martinez has been working its way through the Appeals Circuit ever since. On April 16, the CLS defense was argued before the Supreme Court by Michael McConnell, a former Appeals judge and current Stanford Law Professor.

According to McConnell, the case is about the freedom of expressive association, the right of groups to determine their own leadership and their own members. If groups have a compelling ideology that touches upon their membership policy, their freedom of association allows them to exclude prospective members that do not fit the mold of the ‘compelling ideology’.

For example, the freedom of association is what enables the Democratic Party to exclude Republicans from their caucuses. This isn’t problematic because the exclusion is based on belief systems, not racial or gender status.

According to McConnell, “If there’s a rape survivor group, the government should not require men to sit in on their group meetings.” McConnell argues that the precedent for status based discrimination was set by the 1984 case Roberts v. U.S. Jaycees, which was about an all-male leadership and service club (the U.S. Jaycees), which had a policy of denying membership to women.

The Court ultimately ruled against the Jaycees and in favor of ending sex discrimination, but, according to McConnell, this was only because the Jaycees failed to demonstrate a ‘compelling ideology’ justifying their exclusion of women. “The Court briefs stated that if the ideology had existed, the Court would have ruled in their favor. That set a precedent for CLS v. Martinez.”

McConnell also made the argument that the law protects status-based discrimination, though, in CLS v. Martinez, he is defending the less controversial belief-based discrimination, akin to Democrats who exclude Republicans. This is because “although one’s sexual orientation might be a status, the Christian Legal Service was not discriminating against all gays -it was discriminating against the set of gay students who believed that their sexual orientation was morally permissible.”

According to Professor McConnell, one cannot share all the beliefs of the Christian faiths *and *be an ‘unrepentant’ homosexual. Thus Christian groups have the same right to exclude gay students from their bible studies as they do for atheists and agnostics.

Hastings Law School did not ban the group from campus, and the school did not force the CLS to change its membership policies. Hastings did, however, make the CLS an unofficial club and denied them funding starting in 2004. The school still allows CLS the use of its classrooms for meetings as well as access to bulletin boards and audio-visual equipment.

In 2005, the year the group became unofficial, the CLS doubled in membership size, which will make it difficult to prove that the unofficial status burdens the CLS.

McConnell thought the strongest argument was on the Hastings side was that “public universities ought to be allowed to define their educational mission in the same way that private universities are.”

The decision will be announced in June.

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